Smt. Shakeela Begum vs M/S. R.K. Supply Co (1982) Pvt. ...
2012 Latest Caselaw 1096 Del

*              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

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

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

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

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