Delhi High Court
Sh. Manoj Kumar & Anr. vs Sh.Bhagwan Dass @ Bhahmchari on 24 December, 2010
Author: Indermeet Kaur
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 24.12.2010
+ R.S.A.No.232/2010 & CM No.23191/2010
SH. MANOJ KUMAR & ANR. ...........Appellants
Through: Mr.S.K.Bhaduri, Advocate.
Versus
SH.BHAGWAN DASS @ BHAHMCHARI ..........Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.(Oral)
CM No.23190/2010 (for exemption)
Allowed subject to just exceptions.
R.S.A.No.232/2010 & CM No.23191/2010 (for stay)
1. This appeal has impugned the judgment and decree dated
05.10.2001 which had reserved the finding of the trial judge dated
06.3.2010. Vide judgment and decree dated 06.3.2010 the suit of
RSA No.232/2010 Page 1 of 6
the plaintiff Bhagwan Dass seeking recovery of Rs.41,900/- stood
dismissed. In appeal vide the impugned judgment and decree dated
05.10.2010 the suit of the plaintiff for recovery of the amount of
Rs.41,900/- stood decreed.
2. On behalf of the appellant, it has been urged that the
judgment of the trial court is perverse. It has admittedly come on
record that PW-1 who was the plaintiff had admitted in his cross-
examination that his affidavit Ex.PW-1/A was neither prepared in his
presence and nor under his instructions; he had put his signatures at
the instance of his counsel. This unreliable testimony of PW-1 had
however been relied upon in this impugned judgment to decree his
suit. This was a perverse finding. It is pointed out that the well
reasoned judgment of the trial court could not have reversed.
Moreover there was no evidence to decree the suit for the principal
amount of `30,000/-; for this amount there was no evidence.
Substantial questions of law have been framed in para 9 of the
memo of appeal.
3. The record has been perused. The plaintiff was alleged to be
engaged in the work of white washing, painting and other ancillary
works. Defendant was no.1 was the proprietor of M/s Neelkanth
construction. The plaintiff was given a contract for the sum of
RSA No.232/2010 Page 2 of 6
`30,000/- for white washing a school building i.e. Government
Sarvodaya Bal Vidyalya, Yamuna Vihar, Delhi. Cheque in the sum of
`22,000/- dated 10.2003 had been issued by the defendant which
had on presentation been dishonoured. The balance amount of
`8000/- was agreed to be paid by the defendant to the plaintiff in
cash which amount was also not paid. Suit was accordingly filed.
4. In the written statement the defendant had contested this
claim. It was admitted that this cheque was issued but the
submission was that this cheque was advanced by the defendant as a
loan to the plaintiff and was not in lieu of any payment which was
due from the defendant.
5. The submission of the learned counsel for the appellant that
the testimony of PW-1 is unreliable for the reason that he has
admitted that Ex.PW-1/A (affidavit by way of evidence) was not read
over to him and he has signed it at the instance of his counsel is
bereft of any merit. PW-1 was Bhagwan Dass. He had reiterated
the averments made in his plaint on oath. The cheque in the sum of
`22,000/- was proved as Ex. PW-1/1. His accounts were maintained
in his personal diary Ex.PW-1/7 showing his entitlement to the sum
of `30,000/-. Cross-examination of PW-1 has also been perused.
RSA No.232/2010 Page 3 of 6
There is not a whisper in the cross-examination that the amount of
`8000/- which was exclusive and over and above the cheque amount
of `22,000/- was not due or payable. PW-1 had studied up to 10th
Class; he could read a little english. He had candidly and frankly
admitted that the affidavit by way of evidence was not prepared in
his presence and the same had been signed in the chamber of his
counsel. He denied the suggestion that this cheque has not been
issued in the discharge of liability. After this deposition of PW-1
there was an endorsement of the Court where it had been recorded
by Presiding Officer that the witness has refused to sign the
statement saying that his statement had not been recorded.
6. The impugned judgment had returned a finding that mere
refusal by the witness to sign his statement would not render the
statement recorded by the court as inadmissible especially keeping
in view the fact that PW-1 had studied only up to 10th Class. The
relevant extract and the finding in the impugned judgment qua this
proposition read as follows:
"4. I have carefully gone through the testimony of PW1 and PW2
examined by the trial court. It is correct that in the statement
recorded of PW1 there is an endorsement that witness refused to
sign the statement stating that his statement has not been recorded.
However, in my considered view mere refusal by the witness in
signing the statement does not render the statement recorded by
the court as inadmissible. PW-1 has only studied up to
RSA No.232/2010 Page 4 of 6
intermediate. He was simply put a question if he was read over the
contents of affidavit Ex.PW-1/A to which he candidly admitted that it
was not so read over to him. He also admitted that affidavit was not
prepared in his presence and that it was signed by him in the
chamber of his counsel and he had not gone to the office of Oath
Commissioner for putting his signatures. In the obtaining scenario
it was incumbent upon Ld.Trial court to have either examined the
plaintiff under Section 165 Indian Evidence Act or under Order 10
CPC to elicit the truth since the facts were in the knowledge of the
plaintiff. In the alternative, the contents of the affidavit could have
been red over to ascertain the veracity thereof. Defendant has
admitted the issuance of cheque. He has also admitted in his cross-
examination that he is the proprietor of M/s Neel Kanth
Constructions (defendant no.2) and he undertakes government
contract of construction, repair and all types of construction. He
also admitted that he had a contract with the government school
No.1, Block-B, Yamuna Vihar for repairs and white-wash including
other repair works which work continued for 2-3 years. In this
background, the claim of the plaintiff assumes significance when he
is in possession of cheque issued by defendant no.1 and when he is
also supported by PW2 in his claim that the cheque was issued for
work done by him at the above school. The observations of Ld.Trial
court that PW2 refused to produce the register regarding the
attendance of labourer is not in consonance with the record as the
cross-examination dated 22/9/09 of PW2 reflects that he had offered
to bring the relevant register on the next date of hearing but it
seems that he was not directed by the court or asked by the
defendant to produce the above register, so no benefit can be given
to the defendant for non-production of such a register. The
observation of Ld. Trial court that PW2 had not mentioned the
names of the labourers working for plaintiff is also not in keeping
with the record as in his cross-examination, PW-2 had categorically
stated that 10-12 labourers were working with the plaintiff and he
also named few as Mr. Ram Kumar, Ram Avtar and Yogender. No
RSA No.232/2010 Page 5 of 6
suggestion has been given in rebuttal that the aforesaid Ram
Kumar, Ram Avtar and Yogender were not working for the plaintiff
for the work of white-washing. In civil case facts can be proved on
the basis of preponderance of probabilities. The non-production of
any document such as work order by the plaintiff, is of no
consequences when the claim of the plaintiff is viewed in the
backdrop of entire facts and circumstances more so when issue
No.3 has been decided against the defendant meaning thereby that
the cheque under reference was issued for consideration."
7. There is no perversity in this finding. PW-1 was a partially
educated witness probably from a rural background and he had most
likely refused to sign his statement in the Court as his statement
was being recorded by the Presiding Officer in english and the
contents of the same probably would not being understood in the
course of the dictation. As rightly held in the impugned judgment,
this did not wash away the version of PW-1 which had admittedly
been given by him on oath. Testimony of PW-2 had also been
adverted to in the impugned judgment before decreeing the claim of
the plaintiff. There is no perversity in these findings. No
substantial question of law is made out. Appeal as also pending
application is dismissed in limine.
INDERMEET KAUR, J.
DECEMBER 24, 2010
nandan
