Bombay High Court
Kusumbai Shripatrao Kadam (L.Rs.) ... vs Sahebrao Dhondiba Gholap on 14 January, 2025
2025:BHC-AUG:1766
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sa140.94.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 140 OF 1994
Kusumbai w/o Shripatrao Kadam
died through LRs.
1. Shripatrao s/o Limbajirao Kadam
died through LRs.
1A. Vilas s/o Shripatrao Kadam
age 38 years, occ. Nil
(unsound mind since childhood)
u/g of Sow Mangal w/o Sundarrao More
age 39 years, occ. Household
r/o Beed, Tq. & Dist. Beed.
1B. Sow. Alka w/o Bapurao Choure
age 32 years, occ. Household
r/o Solapur, Tq. & Dist. Solapur
1C. Sow. Mangal w/o Sundarrao More
age 39 years, occ. Household
r/o Beed. Tq. & Dist. Beed.
2. Vilas s/o Shripatrao Kadam
age 36 years, occ. Nil
(unsound mind since childhood)
3. Alka d/o Shripatrao Kadam
age 21 years.
4. Kumari Mangal d/o Shripatrao Kadam
age 30 years, occ. Househodl
r/o Beed.
No.2 u/g of Shripatrao s/o Limbajirao
Kadam, r/o Beed. .. Appellants
versus
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Sahebrao s/o Dhondiba Gholap
age 55 years, occ. Agriculture
r/o Talwat Borgaon, Tq. Georai
Dist. Beed. .. Respondent
Mr. V. R. Dhorde, Advocate for the Appellants.
Mr. S. D. Jaybhar, Advocate holding for Mr. D. R. Jaybhar, Advocate
for Respondent.
CORAM : R. M. JOSHI, J.
DATE : 14th JANUARY, 2025.
JUDGMENT :
1. This appeal under Section 100 of Code of Civil Procedure
takes exception to the judgment and decree dated 25.11.1993 passed
by the First Appellate court in Regular Civil Appeal No. 128/1983
dismissing the suit and thereby reversing the judgment and decree
passed by the Trial Court in Regular Civil Suit No. 106/1974.
2. Parties are referred to as Plaintiff and Defendants for the
sake of convenience.
3. In order to appreciate the submissions of rival parties, it
is necessary to take note of the facts of the case in brief as under :
Plaintiff claims herself to be the proprietor of Champavati
Adat Shop and Champavati Oil Mill at Beed. Suit is filed against
Defendant Nos. 1 and 2. Defendant No. 2 is said to be working as a
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Manager in Marketing Society's Adat Shop run by Beed District
Cooperative Marketing society. It is alleged that Defendant No. 1 has
received the amount from Plaintiff for its further payment to Beed
District Cooperative Marketing Society Limited and since the said
payment was not made, it was recovered by the said society from the
Plaintiff. It is claimed by Plaintiff before the Trial Court that on
30.06.1971, Defendant No. 1 went to the Adat shop of Plaintiff and
made demand of Rs. 4,738.70/- of society's Adat shop. Plaintiff
directed Defendant No. 2 to make payment of the said amount to
Defendant No. 1. A voucher (Exhibit 70) was obtained from
Defendant No. 1 in that regard. Instead of paying the said amount to
the account of the society, Defendant No. 1 used the said amount
personally. A proceeding under Section 91 of the Maharashtra
Cooperative Societies Act came to be initiated against Plaintiff by the
society for recovery of the said amount. It was thus noticed by
Plaintiff that the amount has not been paid to the society by
Defendant No. 2. Hence, the suit came to be filed for recovery of the
said amount.
3. Defendant No. 1 resisted the suit by filing written
statement denying the allegations made by Plaintiff. It is admitted
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that he was working in the Adat shop. He denied to have approached
Defendant No. 2 and made any demand on 30.06.1971. According to
him, he had signed the voucher (Exhibit 70) on 17.08.1971, the day
on which the said amount was paid settling his private account. It is
claimed that Plaintiff in collusion with Defendant No. 2, who is
employee of Plaintiff, has falsely taken entries in the said voucher
(Exhibit 70).
4. Defendant No. 2 accepted that he was serving with
Plaintiff and for want of knowledge denied that Plaintiff was to pay
any amount to society's Adat shop. He also denied that he was
directed to make any payment of Defendant No. 1. Further,
contentions about Defendant No. 1 approaching him, demanding
money and payment thereof etc. are denied by this Defendant too.
5. Learned Trial Court framed issues. Plaintiff examined
Shripatrao (husband of Plaintiff) and also led evidence of Vaijinath
Shete. She relied upon extract of account book and voucher (Exhibit
70). Defendant No. 1 led his oral evidence.
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6. Learned Trial Court decreed the suit partly against
Defendant No. 1 directing him to pay sum of Rs. 4,378.70/- with
interest at the rate of 4% per annum from the date of the suit till
realisation of the amount. Decree was refused against Defendant No.
2. Defendant No. 1, being aggrieved by the said decree, preferred
Regular Civil Appeal No. 128/1983. Learned First Appellate Court
allowed the appeal and dismissed the suit. Hence, this appeal.
7. Learned counsel for Plaintiff submits that the First
Appellate Court has committed error in reversing the findings of fact
recorded by the Trial Court. It is his submission that the findings of
the First Appellate Court are not in consonance with the evidence on
record and as such they deserve interference. He drew attention of
the Court to the evidence led before the Trial Court in order to
contend that Defendant No. 1 has not disputed that he received
amount of Rs. 4,378.70/- and at the same time has admitted that
the said amount was due and payable to the society's Adat shop. It
is his submission that even in the written statement, there is a
candid admission in this regard. Thus, he claims that Plaintiff has
discharged the burden to prove his case and the onus stood shifted
upon the Defendant to prove contrary.
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8. Learned counsel for Defendant supported the impugned
judgment and order by contending that there is documentary
evidence to indicate that on 17.08.1971, the suit amount was paid by
Plaintiff to Defendant No. 1. It is his submission that the case of the
Plaintiff about the said amount being paid on 30.06.1971 through
Defendant No. 1 is not proved in view of the fact that Defendant No. 2
has denied to have paid any amount on that day to Defendant No. 1
and documents i.e. account books relied upon also do not support
Plaintiff's case. It is his submission that unless Plaintiff discharges
burden to substantiate his case, the onus does not shift on
Defendant and evidence led by Defendant would not help Plaintiff in
any manner.
9. This Court, while admitting the appeal, had framed
following substantial questions of law (Ground Nos.6 to 8 of memo of
appeal) :-
(i) Whether the appellate court has erroneously held
that in absence of any pleadings in the written
statement that he had signed on 17.08.1971 towards his
personal amount he was entitled to lead any evidence ?
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(ii) Whether the appellate court has misread and
misconstrued the documentary evidence, namely, the
entries in he ledger book produced by the appellants-
original plaintiff ?
(iii) Whether it was the duty of the respondent-original
defendant No. 1 to prove that the said amount was
towards the goods supplied by him and not the amount
payable towards dues of the appellant to the said
marketing society ?
10. In view of the pleadings of the parties, initial burden was
on the Plaintiff to prove that the amount involved in the suit was paid
to the society through Defendant No. 1. In this regard, documentary
evidence on record does not indicate any entry in the ledger showing
any amount due to the society. It has further come in the evidence of
Plaintiff's witness that he was not present at the time of execution of
Exhibit 70 i.e. receipt. Section 101 of Evidence Act requires a person
who desires the Court to give judgment as to his rights on the
existence of the fact must prove that those facts exist. Similarly,
according to Section 102, the burden of proof in a suit lies on that
person who would fail if no evidence were given at all on either side.
Thus, the burden to prove the case is cast upon Plaintiff and only
when he gives the evidence to support a prima facie case, onus shifts
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upon Defendant to adduce evidence in rebuttal to meet case of
Plaintiff.
11. Once the Plaintiff was not present at time of payment and
as there is specific denial of Defendant No. 2 about any amount being
paid to Defendant No. 1 on 30.06.1971, there has to be substantial
evidence led by the Plaintiff to prove her contention. Evidence of
witness examined by Plaintiff is of her husband who has no personal
knowledge and the other witness was not party to the document i.e.
voucher (Exhibit 70).
12. It is sought to be argued on behalf of the Plaintiff that in
the written statement as well as in the evidence of Defendant No. 1, it
has come on record that certain amount was due and payable to
society's Adat shop by Plaintiff. Perusal of the written statement as
well as evidence of Defendant No. 1 does not show that there was
any candid admission on his part that amount of Rs. 7,378.40/- was
due and payable to the society's Adat shop. In this regard, it is
pertinent to note that there is documentary evidence placed on
record by Plaintiff in the form of ledger. However, this document does
not show any amount payable to the society's Adat shop. As against
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this, if the amount was not payable to Defendant No. 1, question of
taking entry to that effect in individual name of Defendant No. 1 in
the books of accounts would not arise. Plaintiff's husband admits
that 'Bichayat Khata' means the account belonging to the person who
brought the produce to Adat shop for sale and purchase. Name of
Defendant No. 1 is shown in 'Bichayat Khata'. Pertinently, since there
was no admission of Defendant No. 1 in this regard, no decree was
passed on admission by the Trial Court. As such, the statement of
receipt of amount and some other amount due to society's Adat shop,
would not lead to decreeing the suit.
13. Judgment and decree passed by the Appellate Court is
also sought to be assailed on the ground that in the written
statement, there is no specific pleading taken by Defendant with
regard to the nature of transaction against which the amount is paid
by the Plaintiff. In such circumstances, it is claimed that the
evidence led by Plaintiff with regard to supply of agricultural produce
to Plaintiff cannot be accepted.
14. First of all, unless Plaintiff discharges the initial burden
on her to prove her case, the onus does not shift upon the Defendant.
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Moreover, this is not a case wherein Defendant No. 1 has not claimed
that the amount was payable to him in his personal capacity. He did
state so in the written statement. In such circumstances, evidence of
Defendant No. 1 about he being an agriculturist and supplying
agricultural products to Plaintiff even previously has not been
disputed. In fact, it has come in the cross examination of Defendant
No. 1 that he owns 40 to 45 acres land. Usually he used to sell the
agricultural produce to marketing Adat shop. In the year 1971, i.e.
prior to 17.08.1971, twice he sold groundnuts to Plaintiff. These
suggestions made in cross examination are more than sufficient to
substantiate case of Defendant No. 1.
15. Learned First Appellate Court has rightly considered the
pleadings of the parties and evidence led before it. For want of any
perversity therein, the appeal must fail. Substantial questions of law,
therefore, are answered in negative. Accordingly, appeal stands
dismissed.
( R. M. JOSHI)
Judge
dyb
