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2010 DIGILAW 291 (KER)

P. J. Alexander v. S. B. Press (P) Ltd.

2010-03-26

THOMAS P.JOSEPH

body2010
JUDGMENT : Thomas P. Joseph, J. 1. This second appeal arises from judgment and decree of learned third Additional District Judge, Thiruvananthapuram in AS No. 344 of 2004 reversing judgment and decree of learned Principal Munsiff, Thiruvananthapuram in OS No. 1577 of 2001. Ext. A1 series are books in the field of investigation of crimes authored by the appellant, a retired Director General of Police in the State of Kerala and Dr. Muralikrishna, a former Director of the Kerala State Forensic Science Laboratory. Ext. A2 is a compilation of articles authored by the appellant. It is the case of respondent that printing and allied works of the said books was entrusted to it and accordingly 4,000 copies of Exts. A1 and A1 (a) and 1,000 copies of Ext. A2 were printed. Respondent did the work on an oral instruction from the appellant. After printing work was over, appellant took delivery of the same. Respondent sent Ext. A4, bill dated 23/06/2000 for a total sum Rs. 1,36,776/- towards printing and allied charges. Respondent states that appellant paid only Rs. 80,000/-. Demanding balance sum of Rs. 56,776/- respondent issued Ext. A5, notice to the appellant. Since there was no payment respondent instituted the suit for recovery of the said amount with interest. Appellant while admitting authoring Exts. A1 and A1 (a) along with Dr. Muralikrishna and himself authoring Ext. A2 denied that he had instructed to do the printing and allied work. He claimed that printing work was done under the control and arrangement of DW 2 and distribution of the books were done by D.C. Books and Bharath books. He pleaded that there was no privity of contract between himself and the respondent. Appellant made a counter claim for return of the plates used for printing and entrusted to the respondent by DW 2. Respondent filed a replication stating that the plates became scrap. Appellant then amended the counter claim claiming Rs. One Lakh by way of damages. Learned Munsiff on evidence held that preponderance of probability is in favour of truth of the case pleaded by the appellant, accepted his version that there is no privity of contract between him and the respondent and accordingly non-suited respondent. The counter claim was also dismissed. Respondent challenged dismissal of the suit in appeal. One Lakh by way of damages. Learned Munsiff on evidence held that preponderance of probability is in favour of truth of the case pleaded by the appellant, accepted his version that there is no privity of contract between him and the respondent and accordingly non-suited respondent. The counter claim was also dismissed. Respondent challenged dismissal of the suit in appeal. Learned 3rd Additional District Judge was of the view that no reliance could be placed on the evidence of appellant (DW 1) and that evidence of DW 2 is not acceptable. Learned Additional District Judge reversed finding of the learned Munsiff and granted decree in favour of respondent for realisation of Rs. 56,776/- with interest. That is under challenge in the second appeal. 2. The following substantial questions of law are framed for a decision. (I) Whether First Appellate Court was legally and factually justified in reversing the well reasoned judgment of Trial Court without cogent reasons? (II) Whether First Appellate Court was justified in approaching the evidence of DW 1 with an initial distrust? (III) Whether First Appellate Court was justified in not considering the evidence of DW 3 and rejecting the evidence of DW 2 on unsustainable grounds? (IV) Whether respondent has adduced evidence to conclude that there was privity of contract between appellant and respondent? (V) Should not have the First Appellate Court held that respondent failed to discharge initial burden of proving existence of contractual obligation between respondent and appellant? It is contended by Sri. O.V. Radhakrishnan, learned Senior Advocate for appellant placing reliance on the decisions in Abdul Raheem v. Karnataka Electricity Board and Others 2007 KHC 4233 : 2007 (14) SCC 138 : JT 2007 (13) SC 63 : AIR 2008 SC 956 : 2008 (61) AIC 261 : 2008 (1) CHN 173 . and Kalu Ram Ahuja and Another v. Delhi Development Authority and Another 2008 (10) SCC 696 . that when a finding on an issue of fact is vitiated in law as being influenced by an error of record, mis-appreciation or non-appreciation of evidence it would involve a substantial question of law even though the finding is based on facts. It is also the argument of learned Senior Advocate that consideration levant facts and non-consideration of relevant facts would result in substantial question law which the second appellate Court is required to consider. It is also the argument of learned Senior Advocate that consideration levant facts and non-consideration of relevant facts would result in substantial question law which the second appellate Court is required to consider. According to the learned Senior Advocate, First Appellate Court has taken into account irrelevant facts and has not taken into account relevant facts while holding that there was privity of contract between appellant and respondent. Sri. Satish Ninan, learned counsel for respondent would in response contended that decision of the Trial Court was not be justified on the evidence and hence First Appellate Court was correct in reversing that finding and granting a decree. 3. There can be no dispute that when a finding of fact is perverse in the sense that it is not supported by evidence or is based on irrelevant facts or without taking into account relevant facts it involves a substantial question of law which the second Appellate Court is required to consider. Evidence in this case consists of PW 1, Managing Director of respondent and Exts.A1 to A13 on its side while, appellant has given evidence as DW 1 and examined DWs 2 and 3 on his side. He has proved Exts. B1 and B2. According to PW 1, he undertook printing work of Exts.A1 series and A2 as per "instruction" given by the appellant. It is also his case that disk for publication of the cover page was also given to him by the appellant. There was some mistake in the cover page initially printed which was corrected as per instruction of the appellant. Ext. A4 is the copy of bill dated 23rd June, 2000 for Rs. 1,36,776/-. PW 1 claimed that appellant paid Rs. 80,000/- to him towards printing charges (Rs.40,000/- directly and Rs. 40,000/- through DW 2). Original of Ext. A4(a), letter dated 2nd March, 2001 was sent to the appellant demanding payment of the balance sum of Rs. 56,776/-. Since there was no response, respondent sent Ext. A5, notice dated 27th July, 2001 demanding payment of the said amount. Appellant did not reply to the notice. While so respondent received Ext A12, letter dated 6th March, 2001 from DW 2 stating that since the arrangement regarding printing work was between himself and respondent and it was unfortunate that appellant was dragged into the matter. A5, notice dated 27th July, 2001 demanding payment of the said amount. Appellant did not reply to the notice. While so respondent received Ext A12, letter dated 6th March, 2001 from DW 2 stating that since the arrangement regarding printing work was between himself and respondent and it was unfortunate that appellant was dragged into the matter. DW2 owned up liability to pay printing charges excluding Rs 6,000/- which according to DW2, respondent has agreed to adjust on account of the damage caused to the books due to printing defect The balance sum payable was Rs. 50,776/- and in discharge of that liability he sent DD of Rs. 31,776/- and cheque for Rs. 19,000/- in favour of the respondent. PW1 sent Ext A13, letter dated 6th November, 2001 to DW 2 asserting that he had no transaction with DW 2, printing work was arranged by the appellant himself and hence there was no necessity for DW 2 to interfere in the matter PW 1 also returned the demand draft and cheque to DW 2 along with Ext. A13, letter. As the addressee (DW 2) was absent the letter and contents were returned to the appellant. Appellant as DW 1 stated that except authoring Exts, A1 series and A2 either singly or along with Dr. Muralikrishna he had nothing to do with the printing of the said books and that right for publishing Ext. A1 series was given to the Indian Institute of Police Studies and that printing work was arranged by DW 2. He denied that he had paid any amount to the respondent either personally or otherwise or taken delivery of the printed books. He claimed that plates for printing of cover pages was taken from him by DW and given to the respondent. According to him on receipt of Ext. A5, notice he handed over the same to DW 2 who in turn sent reply to the respondent with a copy of it to him. DW 2, owner of M/s. Bharath Books claimed that printing work of Ext. A1 series was entrusted to him by DW 3 on behalf of Indian Institute of Police Studies. Printing work of Ext. A2 was entrusted to him. Accordingly, he engaged respondent for printing work. DW 2 claimed to have pail Rs. 80,000/- towards the printing charges. DW 2, owner of M/s. Bharath Books claimed that printing work of Ext. A1 series was entrusted to him by DW 3 on behalf of Indian Institute of Police Studies. Printing work of Ext. A2 was entrusted to him. Accordingly, he engaged respondent for printing work. DW 2 claimed to have pail Rs. 80,000/- towards the printing charges. DW 2 claimed to have handed over the plates he collected from the appellant to the respondent. He claimed that since there was a mistaken the printing of first set of cover pages it was understood between him and respondent that Rs. 6,000/- will be adjusted towards the loss and accordingly balance sum payable by him was Rs. 50,776/- for which along with Ext. A12 he sent the demand draft and cheque. DW3 is a professor of St. Johns College, Anchal and Treasurer of Indian Institute of Police Studies, He stated that right for publication of Ext. A1 series was reserved with that institute and the printing work was given to the respondent through DW 2. In answer to a question whether there are any documents to prove the same, he stated that he has to peruse the minutes. 4. Learned Munsiff referred to the oral and documentary evidence and took a view that there is no reason to disbelieve the evidence of DWs 1 to 3. According to learned Munsiff, mere fact that carbon copy of certain receipts or delivery challan were produced by the respondent is not sufficient to disbelieve the evidence of DWs 1 to 3. Learned Munsiff held that preponderance of probability is in favour of the truth of the case pleaded by the appellants and holding that there is no privity of contract between appellant and respondent non-suited the latter. Learned Additional District Judge however took a different stand. He has referred to certain cases in which the appellant was allegedly involved during the time he was in the police service, he was once suspended and CBI had registered a case against him for acquiring wealth disproportionate to his known income. Learned Additional District Judge was also not impressed by the version of DW 1 that he is not aware of Copy Right Laws. Learned Additional District Judge observed, having regard to the said circumstances that learned Munsiff ought not have placed 'blind reliance' on the evidence of such a person. Learned Additional District Judge was also not impressed by the version of DW 1 that he is not aware of Copy Right Laws. Learned Additional District Judge observed, having regard to the said circumstances that learned Munsiff ought not have placed 'blind reliance' on the evidence of such a person. So far as DW 2 is concerned, it is stated by learned Additional District Judge that he is a book seller has not published any other book and there was no document to show that he had engaged respondent for the printing work. Hence DW 2 was disbelieved. So far as the evidence of DW 3 is concerned, find from the judgment that learned Additional District Judge has not even referred to his evidence. 5. So far as disbelieving the evidence of DW 1 is concerned it would appear that learned Additional District Judge has approached his evidence with an initial distrust on account of his alleged involvement in disciplinary action or the case registered by the CBI. That approach was against the mandate of Section 52 of the Indian Evidence Act insofar as the alleged bad character if any of appellant had no connection with the fact in issue. Evidence of DW 1 ought to have been considered in the correct perspective notwithstanding his alleged involvement in the disciplinary proceeding or the CBI case. Learned Senior Advocate for appellant also pointed out that whatever disciplinary proceedings were there against the appellant, he was re-instated in service with all service benefits. He also submitted that the case registered by the CBI was set aside by this Court in Alexander v. CBI 2006 KHC 358 : 2006 (2) KLT 240 : ILR 13006 (2) Ker. 62 : 2006 (1) KLJ 878 : 2006 (1) KLD 611. Whatever that be, I do not think that existence of those cases at the relevant time was a reason to reject the evidence of DW 1 if it were otherwise acceptable. I also find that evidence of DW 2 was rejected for no cogent reason. 62 : 2006 (1) KLJ 878 : 2006 (1) KLD 611. Whatever that be, I do not think that existence of those cases at the relevant time was a reason to reject the evidence of DW 1 if it were otherwise acceptable. I also find that evidence of DW 2 was rejected for no cogent reason. While observing that DW 2 had no document to prove that he entrusted the printing work to the respondent, learned Additional District Judge failed to note that respondent also had no document with it except of course carbon copy of certain delivery challan (for delivery of the printed books PW 1 stated that delivery was taken though according to him on behalf of appellant, by DW 2) and copy of bill to show that printing work was entrusted to it by the appellant. So far as evidence of DW 3 is concerned learned Additional District Judge has not even adverted to that. 6. Trial Court has referred to the evidence of witnesses and for the reasons stated in the judgment (the correctness of which of course First Appellate Court has to decide) believed the evidence of DWs 1 to 3, rejected the evidence of PW 1 and non-suited the respondent. First Appellate Court of course had the right and authority to re-appreciate the evidence but. when reversing the finding of Trial Court it has to state cogent reasons for that. I find lack of cogent reasons so far as judgment of First Appellate Court is concerned. It is seen that relevant facts were not considered and, irrelevant facts were considered by the learned Additional District Judge to arrive at a conclusion that version of the appellant is not correct. In the circumstance, judgment and decree of the first Appellate Court cannot be sustained. 7. Since the second Appellate Court is not a fact finding Court, consequence of my above finding is that the matter has to go back to the First Appellate Court for proper consideration of the matter. First Appellate Court has to appreciate the evidence in the correct perspective having regard to all the relevant circumstances and come to appropriate conclusion. That invites a remand of the case to the First Appellate Court. First Appellate Court has to appreciate the evidence in the correct perspective having regard to all the relevant circumstances and come to appropriate conclusion. That invites a remand of the case to the First Appellate Court. Since learned third Additional District Judge has already taken a view, I think it will be embarrassing to the learned Additional District Judge also to send the case back to the very same Court. The appropriate course is to send the case to the Court of learned Principal District Judge, so that either learned District Judge himself or any other Additional District Judge not being the learned Additional District Judge who has disposed of the case would hear the case. 8. Resultantly judgment and decree of the First Appellate Court are set aside and the case is remitted to the Court of learned Principal District Judge, Thiruvananthapuram for fresh disposal. I make it clear that I have not expressed any opinion on the merits of the case or about the acceptability of evidence on either side. Parties shall appear in the Court of learned Principal District Judge on 20th May, 2010. Learned District Judge may either hear the case himself or, make over the case to the Court of any of the Additional District Judges at the station not being the Third Additional District Judge who has disposed of the appeal, to avoid any sort of embarrassment to all concerned. Appellant shall pay the balance court-fee payable on this second appeal immediately and on such payment, half of the court-fee shall be refunded to the appellant. Registry shall sent back records of the case to the Principal District Court, Thiruvananthapuram forthwith.