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2022 DIGILAW 931 (GAU)

Kardu Marde, S/o Shri Takar Marde v. Nabam Tagi, S/o Shri Nabam Sha

2022-08-26

MARLI VANKUNG

body2022
JUDGMENT : Heard Mr. D. Mazumdar, learned Sr. counsel for the Appellant assisted by learned counsel Mr. P.Borah and Mr. T. Tagum, learned counsel for the Respondents. 2. The SAO was admitted on the following two substantial questions of law: i. Whether the learned trial court was justified in passing the decree in favour of the plaintiff only on the basis of the evidence-in-chief filed by the plaintiff's witnesses without complying with the mandatory requirement of the provisions of Order XVIII Rule 5 of the Code of Civil Procedure, 1908 since the suit filed by the plaintiff/respondent is an appealable one? ii. Whether the judgment and decree passed by the trial courtissubstantial in law, for denying the defendant/appellant the opportunity to lead evidence in support of his case because on 18.11.2016 due to failure of the defendant to cross examine the witnesses of the plaintiff, learned trial court not only closed the cross examination of the plaintiff evidence but also the evidence of the defendant as well, instead of posting the case for evidence of the defendant thereafter as provided under Order XVIII Rule 2 (2) of the Code of Civil Procedure, 1908? 3. The brief facts of the case that led to this SAO is that the plaintiff, who is the respondent in the instant SAO, is a construction contractor in the name and style of M/s Gepong. He was awarded a work order on 24.03.2009 by the Executive Engineer, Dumporijo PWD Division, Government of Arunachal Pradesh for construction of road from Dumporijo to Hali (45 km) under NLCPR Scheme for Rs. 1223.19 lakhs. While the construction was going on in full swing the defendant requested the plaintiff to assign the rest of the work of construction to him proposing to pay all the expenditure including on mobilisation of machineries to the site and construction of 5 (five) labour camps. Accordingly, the expenditure incurred by the plaintiff was determined as Rs. 50.47 Lakhs. Thus, the defendant proposed and promised to pay Rs. 50 lakhs to the plaintiff for handing over the project to the defendant and accordingly an agreement was made on 24.12.2012 in the presence of a few persons. That after execution of the agreement aforesaid, the defendant had taken various tools and machineries from the plaintiff on hire for using the same for the project. The cost of such hire charges was fixed as Rs. 18.56 lakhs. That after execution of the agreement aforesaid, the defendant had taken various tools and machineries from the plaintiff on hire for using the same for the project. The cost of such hire charges was fixed as Rs. 18.56 lakhs. The contention of the plaintiff is that out of Rs. 50 lakhs aforesaid the defendant paid Rs. 15 lakhs by cheque dated 11.04.2013 to the plaintiff. But the remaining amount of Rs. 35 lakhs was outstanding. As regards the hire charges, out of Rs. 18.56 lakhs the defendant paid a sum of Rs. 11 lakhs only by cheque ason 16.04.2013. Thus, the balance amount of Rs. 7.56 lakhs was unpaid. As a result, Rs. 35,00,000 + Rs.7,56,000 = Rs. 42,56,000/-was due to the plaintiff from the defendant. Hence, the suit for realisation of Rs. 42.56 lakhs with interest at the rate of 12% per annu in M.S No. 25/2015. 4. In response, the defendant, who is the instant appellant, filed his written statement wherein apart from denying the averments made in the plaint, he specifically contended that while entering into the agreement dated 24.12.2012 the plaintiff stated that after the award of the contract work, the plaintiff cleared/executed some part of the work for which running bills were pending, therefore, the defendant anticipated to receive bills for the work already completed by the plaintiff. But when the defendant later discovered that no running bills were pending, the defendant urged the plaintiff to amend the condition No. 3 of the agreement and the plaintiff agreed to settle the claim at Rs. 15 lakhs in full and final settlement of the claim of Rs. 50 lakhs. Then the defendant paid to the plaintiff Rs. 15 lakhs as against the claim of Rs. 50 lakhs. As regards, the remaining claim of Rs. 18.56 lakhs towards hire charges for tools and machineries, the defendant has admittedly paid a sum of Rs. 11 lakhs. For the balance amount of Rs. 7.56 lakhs, following a personal discussion with the plaintiff the said claim was settled at Rs. 5 lakhs by the plaintiff. The defendant has therefore had a liability of the said amount of Rs. 5 lakhs to be paid to the plaintiff. It is for discharge of this debt that the defendant issued a cheque in favour of the plaintiff for Rs. 5 lakhs by the plaintiff. The defendant has therefore had a liability of the said amount of Rs. 5 lakhs to be paid to the plaintiff. It is for discharge of this debt that the defendant issued a cheque in favour of the plaintiff for Rs. 5 lakhs vide cheque No. 38781 drawn on SBI issued his power of attorney holder on condition that the said amount will be paid after receiving the bills from the department against the contract work. But, the plaintiff having objected to the said cheque, the defendant again issued a cheque by himself being cheque No. 101354 dated 16.12.2013 drawn on ICICI for Rs. 5 lakhs. But, the plaintiff instead of returning the earlier cheque issued by his power of attorney holder, presented both the cheques to the Bank for collection. In the aforesaid facts and circumstances the defendant prayed for dismissal of the suit. 5. From of the pleadings the trial court framed the following issues : i) Whether the present suit is maintainable in the present form? ii) Whether the defendant had entered into an agreement dated 24.12.2012? iii) Whether the plaintiff has consented and agreed for reduction of liability of the defendant in respect of balance amount of hire charges of machineries by the defendant? iv) Whether the plaintiff is entitled to receive an amount of Rs. 42.56 lakhs from the defendant? v) To what relief the parties are entitled to? The plaintiff examined 4 (four) witnesses including himself. Regarding the defendant's evidence, learned Trial Court observed in paragraph-9 of the judgment that after framing of issues the defendant remained absent and as such, cross-examination of the plaintiff's witnesses were closed by order dated 18.11.2016. 6. On the basis of the plaint and the evidence adduced by the plaintiff learned trial court decided issue No. 1 and 2 in favour of the plaintiff. As regards, issue No. 3 issue No. 4 and the trial court held that in the absence of any evidence the defendant failed to prove the plea taken by him that the plaintiff agreed to reduce the said liability to Rs. 5 lakhs for the balance amount of Rs. 7.56 lakhs and failed to proved that in place of Rs. 50 lakhs towards consideration money, the defendant's liability was only to the extent of Rs. 15 lakhs which was actually paid by the defendant by way of a cheque. 5 lakhs for the balance amount of Rs. 7.56 lakhs and failed to proved that in place of Rs. 50 lakhs towards consideration money, the defendant's liability was only to the extent of Rs. 15 lakhs which was actually paid by the defendant by way of a cheque. 7. In view of such findings recorded on issue No.1 to 4 the learned trial court came to the conclusion that the recoverable debt against the defendant is Rs.42.56 lakhs with interest at the rate of 12 % per annum from the date of the suit till the realisation of - the same vide judgment and order dated 13.10.2017. 8. Being aggrieved, the defendant preferred an appeal before the learned Court of District Judge, Yupia being Money Appeal No. 24/2017.The learned District Judge finding the appeal petition devoid of merit, rejected the appeal petition, stating that taking into consideration the fact that the appellant Kardu Marde did not contest the case properly before the learned court below despite of having opportunity, and now has filed application with prayer for adducing defendant’s witnesses and for cross examination of the plaintiff’s witnesses which cannot be allowed. Aggrieved the defendant appellant has filed the instant SAO. 9. Mr. D. Mazumdar, learned Sr. Counsel for the Appellant submits that in the appeal before the learned District Judge, the defendant specifically took the ground that he was denied the opportunity to defend his case because, on 18.11.2016 due to failure of the defendant to cross examine the plaintiff's witnesses the learned Trial Court while closing the evidence of plaintiff, had also closed the evidence of the defendant for which the defendant could not examine his witnesses nor could he produce the relevant document in support of his defence. His plea was that the learned trial court ought to have posted the case for evidence of the defendant in terms of the provisions of Order XVIII Rule 2 (2) of the Code of Civil Procedure, 1908. But, the Id. Trial court committed an error in mixing up these two different stages of hearing which resulted in violation of the basic principles of natural justice of the opportunity to defend the case of the defendant. The trial of suit in this case has therefore being vitiated by an inferable defect. But, the Id. Trial court committed an error in mixing up these two different stages of hearing which resulted in violation of the basic principles of natural justice of the opportunity to defend the case of the defendant. The trial of suit in this case has therefore being vitiated by an inferable defect. In addition the appellant also made a specific prayer under Order XLI Rule 27 of the Code of Civil Procedure, 1908 to allow him to produce additional evidence and documents in support of his case on the ground that despite exercise of due diligence the said evidence could not be produced in the court. The learned Sr. counsel submits that it is a settled law that an unfair trial cannot be cure by a fair appeal and therefore, the judgment and decree passed by the learned Courts below are liable to be set aside on this count alone and with a further requirement of directing the trial court to proceed from the stage of cross-examination of PWs by the defendant. 10. The learned Sr. counsel for the appellant further submits that it is a settled law that even if the First Appellate Court confirms the judgment and decree passed by the Trial Court, it has a minimum duty of independently examining the findings recorded by the trial court to ascertain whether the said findings are supported by evidence or not. However, in the instant case ld. Court of Appeal below without undertaking any such exercise and without examining the correctness of the findings recorded by the trial court on the issues so framed came to an erupt finding that "finding the appeal petition devoid of any merit, the same is rejected without any causes". The judgment and decree passed by the trial court is thus contrary to the requirements of Order XLI Rule 31 of the Code of Civil Procedure, 1908 and committed a grave error in mechanically confirming the judgment and decree passed by the Trial Court without independently assessing the merit of the case and correctness of the findings recorded by the trial court on the issue framed keeping in view the burden of proof of the plaintiff even if there was no evidence of the defendant. The learned Appellate Court below also ignored the question as to whether the decree passed by the trial court was sustainable for denying the defendant the opportunity to adduce evidence only because the defendant failed to cross examine the PWs. The judgment and decree passed by the First Appellate court is apparently a cryptic judgment and the same has been passed without following the provisions of Order XLI Rule 31 of the Code of Civil Procedure, 1908 which mandates that the First Court of Appeal shall state the points for determination, take decision thereon and the reasons for such decision are also required to be recorded. But, surprisingly enough while ignoring the aforesaid requirements, the learned Appellate Court considered only the prayer for adducing witnesses and for cross-examination of the PWs and no discussion was made on the merit of the case. The learned Sr. Counsel has relied on he decisions of the Apex court in Dilbagrai Punjabi Vs. Sharad Chandra reported in (1988) (Supp) SCC 710, Santosh Hazari vs. PurushottamTiwari (Deceased) by LRS reported in (2001)3 SCC179, H.Siddiqui (dead) by LRs vs. A. Ramalingam reported in (2011) 4 SCC 240 . 11. Mr. T. Tagum, learned counsel for the respondent submits that the appellant has failed to make out any ground for invoking of either Rule 21 or Rule 27 of order 41 of the Civil Procedure Code,1908, in filing the instant appeal. It may be mentioned that production of additional evidence in appellate court under Rule 27 of order 41 CPC can only be allowed by the appellate court on the following grounds; (1) if he satisfies the court that the trial court has refused to admit the evidence which ought to have been admitted, or (2) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced by him at a time when decree was passed. But, in the present case, appellant cannot take up any of the above grounds, as because learned trial court below has not refused or denied the defendant appellant the opportunity to lead evidence in support of his case. In fact the defendant appellant, himself has deliberately abstained and avoided from further proceeding of the suit, thereby compelled the trial court to resort to power conferred under Rule 2 & 3(b) of order 17 of CPC. In fact the defendant appellant, himself has deliberately abstained and avoided from further proceeding of the suit, thereby compelled the trial court to resort to power conferred under Rule 2 & 3(b) of order 17 of CPC. Since no any illegality has been committed the learned trial court below, therefore learned District Judge, West Session Division, Yupia being the first appellate court has no any reason to invoke the provision of Rule 27 of order 41 of CPC. 12. The learned counsel for the respondent further submits that with regard to the issue No. 1, it is submitted that the examination-in-chief of plaintiff witness under the provision of order XVIII, Rule 5 of CPC is not the statutory requirements, since such witnesses are produced in the form of Affidavit which has already been shown before the competent authority. Thus, there is no requirement under order XVIII, Rule 5 that in appealable cases, the witness must enter the witness box for production of his affidavit and formally prove the affidavit. However, the requirement and purpose of order XVIII, Rule 5 of CPC is for limited purpose of cross examination and if necessary re-examination and not for examination-in-chief, as because the witness had already given their examination-in-chief in the affidavit form which are administered on oath before the competent authority. Therefore, the learned trial court has committed no any error by passing decree in favour of plaintiff only on the basis of evidence in-chief filed by the plaintiff's witness in affidavit form. It is further submitted that the defendant/appellant had deliberately avoided the proceeding before the trial court and did not afford to cross examine the witnesses, despite of having granted ample opportunities by the learned trial court. 13. The learned counsel further submits that with regard to the issue No. 2, it is submitted that the learned trial count had not denied the defendant to lead his evidence or cross examine the plaintiff's witnesses. After furnishing the copy of deposition of evidence-in-chief in the form of affidavit to the defendant's counsel, the same was filed before the learned trial court below on 03-08-2016. Thereafter, matter was listed on 27-10-2016 for cross examination of PWs by the defendant's counsel, on which date the counsel for defendant was also present, but the cross examination of PWs could not be done due to paucity of time. Thereafter, matter was listed on 27-10-2016 for cross examination of PWs by the defendant's counsel, on which date the counsel for defendant was also present, but the cross examination of PWs could not be done due to paucity of time. Therefore, vide order dated 27-10-2016, the matter was again fixed on 18-11-2016 for cross examination of PWs as per consent of the defendant's counsel. Thus, accordingly the case was listed up on 18-11-2016 for cross examination of PWs. But, both the defendant and his counsel remain absent without any application or intimation to the learned trial court below on the said appointed day. Since, the both defendant and his counsel did not turn up for cross examination of PWs, on 18-11-2016, therefore the learned court below had closed the both PWs and DWs vide order dated 18-11-2016 and fixed for final argument. Thereafter the matter was remained pending for almost 1 (one) year (i.e. from 18-11-2016 to 13-10-2017), but neither the appellant/defendant nor his counsel had made any prayer for allowing them to adduce any evidence or prayer for granting of time or adjournment of the proceeding. Since, there was no prayer or application from the appellant/defendant or from his counsel for adjournment or for cross examination or adducing of any evidence for about 1 (one) year, the question of denying the defendant/appellant the opportunity to lead evidence in support of his case does not arise. Hence, Judgment & Decree dated 13-10-2017, passed by learned trial court in Money Suit No. 25 of 2015 in favour of plaintiff requires no any interference of this Hon'ble Court as same is sustainable in law. 14. Having considered the submissions of both the parties and on perusal of the documents on record, I find that this court has formulated two substantial questions of law for consideration. 14. Having considered the submissions of both the parties and on perusal of the documents on record, I find that this court has formulated two substantial questions of law for consideration. Regarding the first substantial question of law, Order XVIII Rule 5 of the Code of Civil Procedure, 1908 provides that – ‘In cases in which an appeal is allowed, the evidence of each witness shall be- (a) taken down in the language of the Court,- (i) in writing by, or in the presence and under the personal direction and superintendence of, the Judge, or (ii) from the dictation of the Judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge”. 15. The Apex Court in A.T. Corpn. Ltd v. Shapoorji Datta Processing Ltd. AIR 2004 SC 355 (358) held that R.5 of Order XVIII CPC refers to the evidence which is required to be taken in cases where the appeal is allowed in contradiction with cases where appeal is not allowed as envisaged in R13 of Order XVIII of the CPC. R5 therefore envisages a situation where the court is required to take down in the manner laid down therein which would mean where cross examination and re-examination of the witnesses is to take place in the court and does not mean that the statement of witnesses are required to be recorded in the court. In the instant case the opportunity to cross examine the plaintiff witness was closed by the learned trial court vide its order dated 18-11-2016 on the absence of the defendants for cross examination of the plaintiff witnesses. 16. The learned trial court in its order dated 18-11-2016 had also closed the chance of the defendants to adduce their evidence and thereafter, no date was fixed for evidence of the defendant as provided under Order XVIII Rule 2 (2) of the Code of Civil Procedure, 1908. Herein the next substantial question of law that emerges is whether the learned trial court had erred in not giving the defendant the opportunity to adduce his evidence as provided under Order XVIII Rule 2(2) Civil Procedure Code which provides for the other party to state his case and produce his evidence (if any) and may then address the Court generally on the whole case. The trial court in its order dated 18-11-2016 had closed the cross examination of the plaintiff evidence and a perusal of the records of the lower court shows that the defendant was absent without any explanation, in spite of the given date for cross examination of the plaintiff witnesses, I thus find that it need not interfere with the decision of the learned Trial court for the closure of cross examination of plaintiff witnesses. However in the order dated 18-11-2016 passed by the learned trial court, the trial learned court had also closed the opportunity for the defendant to adduce their evidence without assigning any reason whatsoever. I find that this outright closure of opportunity, for the defendants to adduce their evidence is against what is provided under Order XVIII Rule 2 (2) of the Code of Civil Procedure, and therefore held unsustainable. 17. Further, on perusal of the order of the learned Court of District Judge, Yupiain Money Appeal No. 24/2017 it is seen that the learned District Judge, found the appeal petition devoid of merit, stating that ‘taking into consideration the fact that the appellant Kardu Marde did not contest the case properly before the learned court below despite of having opportunity, and now has filed application with prayer for adducing defendant’s witnesses and for cross examination of the plaintiff’s witnesses which cannot be allowed.’ This court finds that the learned appellate court in passing this order, has failed to explain how it came to such a conclusion and also failed to address the issue whether it was appropriate for the learned trial court below to close the opportunity of the defendant to adduce evidence which is not as per the provisions of Order XVIII Rule 2 (2) of the Code of Civil Procedure, 1908. 18. 18. It is also seen that the defendant in his written statement has clearly rebutted the claim of the plaintiff for the alleged recoverable debt against the defendant amounting to Rs.42.56 lakhs with interest at the rate of 12%, thus this court is of the considered view that the ends of justice would be met by setting aside the Judgement & Decree dated 13.10.2017 in Money Suit No. 25 of 2015 passed by the learned Civil Judge senior Division, Yupia and the order dated 16.11.2018 passed by the District Judge, West session division, Yupia in Money Appeal No. 24(YPA)/ 2017 and by giving the appellant/ defendant the opportunity to adduce his evidence before the trial court. In view of this finding, both the parties are to appear before the Learned Trial Court of Civil Judge Senior Division, Yupia on 24.09.2022 for further proceedings. 19. With the above directions the SAO NO.01(AP)/2019 accordingly stands allowed and disposed. 20. LCR to be returned.