Prem Kumar vs Raj Kumar
2018 Latest Caselaw 3679 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No. 341/2017

%                                                        4th July, 2018

PREM KUMAR                                                 ..... Appellant

                          Through:       In person with Mr. Rakesh
                                         Kumar, Advocate.

                          versus

RAJ KUMAR                                               ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

RFA 341/2017 and C.M. Appl. No. 12443/2017 (under Order 41 Rule 27 CPC)

1. This Regular First Appeal under Section 96 of the cOde

of Civil Procedure,1908 (CPC) is filed by the plaintiff in the suit

impugning the judgment of the Trial Court dated 25.11.2016 by which

the trial court has dismissed the suit for recovery of Rs.3,90,000/- filed

by the appellant/plaintiff/Advocate, suit amount was claimed being

the fees not paid by the respondent/defendant to the appellant/plaintiff

with respect to two cases in the High Court being Crl.M.C. Nos.

3576/2010 and 3748/2010 against the judgments passed by Additional

Sessions Judge in Criminal Revision Nos. 38/2010 and 39/2010.

2. At the outset it may be noted that whereas the

appellant/plaintiff led evidence and proved his case, no evidence was

led by the respondent/defendant, and nor did the respondent/defendant

cross-examined the appellant/plaintiff. In fact, the

respondent/defendant was proceeded ex-parte vide order dated

17.2.2014. The respondent/defendant moved an application under

Order IX Rule 7 CPC which was dismissed as withdrawn and another

application under Order IX Rule 7 CPC was then dismissed on

18.4.2016.

3. The facts of the case are that the appellant/plaintiff pleads

that he was engaged as an Advocate by the respondent/defendant to

appear in two cases in the High Court being Crl. M.C. Nos. 3576/2010

titled as Raj Kumar Vs. Uma Shankar and Others and 3748/2010 titled

as Raj Kumar Vs. States against the judgments passed by Additional

Sessions Judge in Criminal Revision Nos. 38/2010 and 39/2010. The

case of the appellant/plaintiff is that the respondent/defendant agreed

to pay a sum of Rs.55,000/- for each case for drafting and filing of the

two criminal petitions in the High Court and also agreed to pay a sum

of Rs.25,000/- per hearing. Appellant/plaintiff pleaded that only a

sum of Rs.10,000/- each was paid for the two cases but the

respondent/defendants did not pay the balance fees for drafting and

filing of Rs.45,000/- for each case and also did not pay charges for

hearings in which the appellant/plaintiff appeared in the High Court in

the aforesaid two criminal M.C.

4. Appellant/plaintiff filed his affidavit by way of evidence

and proved on record various documents being the order sheets in the

two Criminal M.C. petitions filed in this Court as also the legal notice

dated 17.7.2013 along with the postal receipts. The documents have

been proved as per the affidavit by way of evidence of the

appellant/plaintiff as Ex.PW1/1 to Ex.PW1/7. As already stated above

appellant/plaintiff was neither cross-examined by the

respondent/defendant nor the respondent/defendant led evidence.

5. Trial court by the impugned judgment has dismissed the

suit by observing that appellant/plaintiff led only oral evidence and

therefore the same is not sufficient to discharge the onus of proof.

6. In my opinion, the impugned judgment of the trial court

is clearly against law and is bound to be set aside inasmuch as once

the appellant/plaintiff appeared in the witness box, proved his case by

filing the necessary documents being the order sheets of two criminal

cases, as also legal notice which was duly served upon the

respondent/defendant and which was not replied to, in cases such as

the present such oral evidence has to be believed for decreeing of the

suit. This is all the more so when the respondent/defendant has not

contested the suit and has no courage of conviction to appear in the

witness box to prove his case and stand the test of cross-examination.

6. At this stage, appellant/plaintiff who appears in person,

states that no hearing fees would be charged for appearances on

18.11.2010, 19.12.2011 and 16.5.2012 as the appellant/plaintiff was

not personally present. Also, no hearing fees would be payable for

24.11.2011 when the Hon'ble Judge was on leave. There a sum of

Rs.1,00,000/- is to be reduced from the total suit amount of

Rs.3,90,000/- and consequently appellant/plaintiff only claims a

decree for a sum of Rs.2,90,000/-.

7. In view of the aforesaid discussion this appeal is allowed

and the impugned judgment of the trial court dated 25.11.2016 is set

aside. Suit of the appellant/plaintiff will stand decreed against the

respondent/defendant for a sum of Rs. 2,90,000/- along with pendente

lite and future interest till payment at 6% per annum simple.

Appellant/plaintiff will be entitled to costs of this appeal as also the

suit. Appeal is accordingly allowed and disposed of in terms of the

aforesaid observations. Decree sheet be prepared.

JULY 04, 2018                               VALMIKI J. MEHTA, J
AK