* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.530/2011
% 16th February, 2012
SMT. SHAKEELA BEGUM ..... Appellant
Through: Mr. M.K. Sinha, Advocate.
versus
M/S. R.K. SUPPLY CO (1982) PVT. LTD. ..... Respondent
Through: Mr. V.P. Dewan, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal (RFA) filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 24.3.2011 dismissing the suit of the appellant/plaintiff for recovery of moneys, and which was claimed towards supplies of shoe accessories to the respondent/defendant. I may at the outset mention that the trial Court deemed it fit to dismiss the suit although the defendant was exparte and had led no evidence. The appellant/plaintiff had, on the other hand, led evidence through her husband, and who was her power of attorney holder.
2. The trial Court has dismissed the suit by holding that the RFA No.530 /2011 Page 1 of 5 testimony of the husband of the appellant/plaintiff-Sh. Khalil Ahmad who deposed as PW-1 could not be looked into as he did not depose that he was aware of the transactions between the parties. Another reason given by the trial Court for dismissing the suit was that the bills which were filed and exhibited by the appellant/plaintiff were only photocopies and therefore the same cannot be looked into.
3. The impugned judgment is not only illegal but wholly perverse and therefore requires to be set aside in this appeal. Firstly, I am surprised at the finding of the trial Court when it is stated that the husband and attorney of the appellant/plaintiff was not conversant with the facts of the case because a reading of the affidavit shows that the husband-Sh. Khalil Ahmad states that he is aware of the facts of the case. If there was any doubt, the same was cleared from the original power of attorney executed in favour of the husband-Sh. Khalil Ahmad which specifically states in page no.1 thereof that Sh. Khalil Ahmad has been running the firm of M/s. Delhi Trading Company(plaintiff/appellant was its sole proprietor) and is fully conversant with all the transactions entered into with the defendant. I am therefore very much surprised as to how the trial Court without even the basic reading of the affidavit by way of evidence filed and the power of attorney filed, held that Sh. Khalil Ahmad had no knowledge RFA No.530 /2011 Page 2 of 5 of the facts of the case. Therefore, this finding of the trial Court being wholly illegal and perverse is set aside and it is held that Sh. Khalil Ahmad, husband of the appellant/plaintiff, was competent to depose on behalf of the appellant/plaintiff.
4. So far as the issue of the bills which were filed and exhibited by the appellant/defendant as Ex.PW1/2 to Ex.PW1/17 being only photocopies and the same cannot be looked into, this finding is totally illegal and perverse for two reasons. Firstly, a reference to the provision of Section 65(a) of the Indian Evidence Act, 1872 itself shows that the nature of the documents were such that secondary evidence is admissible because the originals of such documents are with the defendant. Surely, in this case goods which were supplied to the defendant were under the subject bills, and the originals of which bills have necessarily to be with the defendant. Therefore photocopies of the bills were secondary evidence which surely can be looked into in term of Section 65(a) of the Indian Evidence Act, 1872. The second reason why photocopies of the bills could be looked into is that there was no challenge to the exhibition of these documents by the respondent/defendant who was exparte. It has been held by the Supreme Court in the case of R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple 2003 & Anr. (8) SCC 752 that once there RFA No.530 /2011 Page 3 of 5 is no objection to the exhibition of the secondary evidence i.e. there is no challenge to the mode of proof of the exhibiting of documents, the right to challenge the exhibition of documents is waived. In the present case, admittedly the defendant/respondent was exparte and therefore there was no objection to the exhibition of documents. The trial Court therefore ought not to have rejected the photocopies in view of the ratio of the judgment of the Supreme Court in the case of R.V.E.Venkatachala Gounder (supra).
5. The appellant/plaintiff has duly proved her case and which becomes clear from para 9 of the impugned judgment which reads as under:-
"9. In support of her case, plaintiff has filed photocopies of 16 bills which were marked as PW1/2 to PW1/17 that are stated to have been raised by against the defendant. All these bills are photocopies and original of the same have not been filed on record. Plaintiff has also filed a statement of accounts which was marked as PW1/1 showing details of the transactions between the parties and a closing balance of ` 16,19,724/- lying outstanding against the defendant. A certificate under Section 65(B) of the Indian Evidence Act, 1872 has also been filed as Ex.PW1/A bearing signature of one Sh. Jitender Jaiswal. However, Sh. Jitender Jaiswal has not been produced as a witness."
6. Accordingly, this appeal is allowed. Impugned judgment and decree dated 24.3.2011 is set aside. The suit of the appellant/plaintiff will stand decreed for a sum of ` 16,19,724/- alongwith pendente lite and future RFA No.530 /2011 Page 4 of 5 interest @ 9% per annum simple till payment. Appellant will also be entitled to costs of this appeal. Decree sheet be prepared. Trial Court record be sent back.
7. A copy of this judgment, alongwith the copy of the impugned judgment be sent to the inspecting committee of Judges of the Judicial Officer who passed the impugned judgment.
VALMIKI J. MEHTA, J FEBRUARY 16, 2012 Ne RFA No.530 /2011 Page 5 of 5