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2014 DIGILAW 58 (BOM)

Aronio Agnelo Luis Fernandes v. Richa Vaz

2014-01-10

F.M.REIS

body2014
Judgment : 1. Heard Mr. Bhatkuly, learned counsel appearing for the appellant and Ms. N. Pimenta, learned counsel appearing for the respondents. 2. The above appeal has been admitted on the following substantial questions of law. (1) Whether the impugned judgment and order of both the Lower Courts are vitiated by non-consideration of material evidence, particularly the deposition at pages 12 and 13 of the DW.1 and that the plaintiff was out of Goa from September, 1991 to November, 1992 and returned only once during this period and that too 10 days after the birth of defendant no.2 and therefore, whether the findings in that regard are perverse? (2) Whether the Courts below erred in dismissing the suit by placing the onus of proof on the plaintiff, when due to the admission of DW.1 and pages 12 and 13 of her deposition, the onus of proof had shifted on the defendants? 3. The appellant filed a suit disputing the paternity of the child which came to be born to the respondent no.1. It was the case of the appellant that he had no access to the respondent no.1 as according to him, he was in employment and living in Bombay and not in village Velim where the respondent no.1 was residing. It was further his case that only in November, 1992 he learnt about the birth of the said child wherein his name was shown as being the father when the summons were received by the appellant in the maintenance proceedings filed by the respondent no.1. The respondents filed their written statement disputing the said contention and pointed out that the appellant was a neighbour of the respondent no.1 and he was frequently coming to her house and was even spending nights along with the respondent no.1. It is further her contention that because of his promise to the marriage, she permitted access to the appellant, out of which a child came to be born. The learned trial Judge upon appreciating the evidence on record has come to the conclusion that the appellant has failed to establish his case and consequently dismissed the suit filed by the appellant. In an appeal preferred by the appellant, the learned Lower Appellate Court upon re-appreciating the evidence on record has dismissed the appeal preferred by the appellant. This Court has admitted the above appeal on the aforesaid substantial questions of law. 4. In an appeal preferred by the appellant, the learned Lower Appellate Court upon re-appreciating the evidence on record has dismissed the appeal preferred by the appellant. This Court has admitted the above appeal on the aforesaid substantial questions of law. 4. The learned counsel appearing for the appellant has assailed the impugned judgment and submitted that the admission of DW1 that the appellant was working in Bombay from September, 1991 to November, 1992, would itself disclose that the respondent no.1 has admitted that there was no access for a period of more than nine months prior to the birth of the child on 29.06.1992. The learned counsel further pointed out that on the basis of the said averments itself the learned Judge ought to have decreed the suit. 5. On the other hand, Ms. N. Pimenta, learned counsel appearing for the respondents has pointed out that in the proceedings of maintenance there was a direction to the appellant to subjected himself to paternity test which he has refused and as such, an adverse inference has to be drawn against the appellant. The learned counsel further pointed out that there is no admission at all as sought to be claimed by the appellant and in any event, such admission by itself cannot decree the suit of the appellant as according to her the appellant has failed to establish his case. The learned counsel further pointed out that it is well settled that the plaintiff has to prove his case and considering that the appellant has not entered the witness box and has chosen to depose through his power of attorney would itself show that the appellant was shying away from the cross examination. The learned counsel as such submits that no case is made out by the appellant for any interference in the impugned judgment. 6. I have carefully considered the submissions of the learned counsel and I have also gone through the records. Before I proceed to examine whether there is an admission as alleged by the learned counsel appearing for the appellant, it would be pertinent to find out whether the appellant has been in a position to establish his case to obtain a relief sought in the suit. In the present case, it is not in dispute that the appellant has not entered the witness box. In the present case, it is not in dispute that the appellant has not entered the witness box. The facts pleaded by the appellant in the plaint are matters which are to his personal knowledge and these aspects cannot be deposed through the power of attorney. The Apex Court in the recent judgment reported in (2010) 10 SCC 512 in the case of Man Kaur (Dead) by Lrs. Vs Hartar Singh Sangha has observed at paras 14 and 18 thus: “14. In Vidhyadhar v. Manikrao this Court reiterated the following well-recognised legal position: (SCC pp. 583-84, para 17) “17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct….” 18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: (a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit. (b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved. (c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge. (d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney-holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders. This frequently happens in case of principals carrying on business through authorised managers/attorney-holders or persons residing abroad managing their affairs through their attorney-holders. (e) Where the entire transaction has been conducted through a particular attorney-holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder. (f) Where different attorney-holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined. (g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or “readiness and willingness”. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.” Considering the said observation of the Apex Court the evidence of the appellant through the power of attorney is of no consequence and cannot be relied upon to prove the case of the appellant. Considering the nature of the dispute in the present case, the very fact that the appellant has chosen not to enter the witness box would itself be sufficient to draw an adverse inference against the appellant and the learned Trial Judge was justified to draw such inference against the appellant. On the face of such material on record, the question of examining the alleged admission by DW1 would have no significance. It is well settled that evidence beyond the pleadings cannot be read to substantiate the rival claims of the parties. On the face of such material on record, the question of examining the alleged admission by DW1 would have no significance. It is well settled that evidence beyond the pleadings cannot be read to substantiate the rival claims of the parties. On being asked whether there is any specific averment in the plaint as to when the appellant was away from Goa, the learned counsel appearing for the appellant has fairly stated that there is no such averment in the plaint. Considering that there is no foundation in the pleadings to establish the contention of the appellant that he was away from Goa from September, 1991, the question of examining the said aspect in the manner sought by the learned counsel appearing for the appellant would not arise at all. 7. Apart from that, on perusal of the whole evidence of DW1, I find that there is no admission as sought to be contended by the learned counsel appearing for the appellant. It is well settled that evidence has to be read as a whole. On reading of the evidence in the examination in chief of the respondent, I find that there are categorical averments therein disclosing the manner in which there was access between the appellant and the respondent no.1. Apart from that, the evidence of DW1 has also been corroborated by the remaining witnesses examined by the respondents. 8. It is well settled by the Apex Court that the High Court in Second Appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the Courts below are perverse being based on no evidence or that on the basis of evidence on record no responsible person could have come to that conclusion. Solely because another view is possible on the basis of the evidence on record would not entitle the High Court to exercise jurisdiction under Section 100 of the Civil Procedure Code to interfere in such findings. As pointed out herein above, there is no perversity in such findings and as such the question of any interference by this Court in the present Second Appeal under Section 100 of the Civil Procedure Code does not arise. As there is no admissible evidence to justify his claim in the suit, the Courts below were justified to dismiss the suit filed by the appellant. As there is no admissible evidence to justify his claim in the suit, the Courts below were justified to dismiss the suit filed by the appellant. In such circumstances, I find that no case is made out by the appellant for interference by this Court in the impugned judgment. I find that no admission as sought to be claimed in the evidence of DW1 which would in any way tilt the concurrent findings arrived at by the Courts below. In such circumstances, for the aforesaid reasons, the substantial questions of law are answered accordingly. 9. In view of the above, I find no merit in the above appeal which stands dismissed with costs.