Kauther vs Kiran
2021 Latest Caselaw 4997 HP

                                        1

    IN   THE   HIGH COURT OF HIMACHAL              PRADESH, SHIMLA
                    ON THE 20TH DAY OF OCTOBER, 2021
                                 BEFORE
                  HON'BLE MR. JUSTICE SANDEEP SHARMA




                                                                 .

                  REGULAR SECOND APPEAL No.19 of 2020
    Between:

    SMT. KIRAN,





    W/O LATE SH. RAKESH KUMAR,
    CLERK M.N.T. DIVISION,
    HPSEB LTD, DIVISION-1,
    NEAR RAILWAY STATION, SOLAN,
    H.P., PRESENTLY RESIDING AT BY PASS





    KAUTHER, SOLAN, P.O.CHAMBA GHATT,
    DISTRIC SOLAN, H.P.
                                                                  ....APPELLANT
    (BY MS. MEERA DEVI AND MS.

    ANITA KANWAR, ADVOCATES).

    AND
    M/S VERMA TRADING COMPANY,
    NEAR GURUDWARA, SAPROON, SOLAN,
    THROUGH ITS PROP. SH. RAMESH VERMA.


                                                               ....RESPONDENT
    (BY. SH. SUDHIR THAKUR,
    SENIOR    ADVOCATE     WITH
    MR. KARUN NEGI, ADVOCATE).




    Whether approved for reporting? Yes.





    __________________________________________________________

    This Appeal coming on for admission this day, the Court passed the following:





                        JUDGMENT

Instant Regular Second Appeal filed under Section 100 of the

Code of Civil Procedure, lays challenge to judgment and decree dated

30.10.2019, passed by learned Additional District Judge-I, Solan, District

Solan, Himachal Pradesh in Civil Appeal No.5-S/13 of 2019, affirming the

judgment and decree dated 27.12.2018, passed by learned Civil

Judge(Junior Division) Court No.2, Solan, District Solan, H.P., in Civil Suit

No. 153/1 of 2016, titled as M/s Verma Trading Company versus Kiran,

.

whereby suit having been filed by the respondent (hereinafter referred to

as the plaintiff) for recovery of Rs. 72,385/- alongwith future interest at the

rate of 18% per annum, came to be decreed.

2. Precisely, the facts of the case as emerge from the record are

that the plaintiff filed suit for recovery in the Court of learned Civil Judge,

Court No.2, Solan, District Solan, H.P., against the appellant (hereinafter

referred to as the defendant), averring therein that the plaintiff being a

firm is dealing in the business of trading building material under the name

and style of M/s Verma Trading Company, near Gurudwara Saproon,

Solan sold Steel/Saria worth Rs. 72,385/- on credit basis to the defendant

through bill No.1455, dated 24.08.2013 Ex.PW1/A. As per books

maintained by the plaintiff a sum of Rs. 72, 385/- is still outstanding in the

name of the defendant. Plaintiff repeatedly requested the defendant to pay

the outstanding amount, but since she did not accede to the request of the

plaintiff, plaintiff was compelled to serve a legal notice, dated 30.5.2016

upon the defendant. Notice was duly sent through registered post, but

defendant despite having received notice ignored request of the

plaintiff on one pretext of other and as such, it was compelled to institute

the suit for recovery, as detailed hereinabove.

3. Defendant by way of written statement refuted the aforesaid

claim of the plaintiff as set up in the plaint and denied that the plaintiff firm

is dealing in the business of building materials under the name and style of

M/s Verma Trading Company. Defendant also denied that she being

customer of the plaintiff purchased steel/Saria worth Rs. 72,385/- on credit

.

basis through bill No.1455, dated 24.08.2013. Defendant also claimed that

she did not purchase steel/Saria on credit basis and if there is any such

type of bill in possession of plaintiff, it is false and forged. While denying

the fact that the plaintiff firm supplied the items in accordance with bill and

the entry of the sale duly made in the ledger account of the firm,

defendant termed such entries in the ledger to be false, fake and forged.

Defendant specifically denied that sum of Rs. 72, 385/- is outstanding for

the period of 32 months.

4. Learned trial Court on the basis of the pleadings adduced on

record by the respective parties framed following issues:-

1. Whether the plaintiff is entitled to recovery of

Rs. 72,385/- alongwith interest as alleged? OPP.

2. Whether the suit is not maintainable in its present form? OPD.

3. Whether the plaintiff has no legal cause of action to

maintain the present suit? OPD.

4. Whether the plaintiff is estopped by his own act, conduct and acquiescence? OPD.

5. Whether the plaintiff has not come to this Court with clean hands and suppressed the material facts from this Court? OPD.

6. Relief:-

5. Subsequently, on the basis of the pleadings as well as

evidence adduced on record by the respective parties, learned trial Court

vide judgment dated 27.12.2018, decreed the suit of the plaintiff for a sum

of Rs. 72, 385/- against the defendant alongwith pendent lite and future

interest at the rate of 6% per annum till its realization. Being aggrieved and

.

dissatisfied with the aforesaid judgment and decree passed by learned trial

Court, defendant filed an appeal in the Court of learned Additional District

Judge-I, Solan, District Solan, H.P., which also came to be dismissed vide

judgment and decree dated 30.10.2019. In the aforesaid background,

defendant has approached this Court in the instant appeal, praying therein

to dismiss the suit of the plaintiff after setting aside the judgments and

decrees impugned in the instant appeal passed by learned Courts below.

6. Though, today matter was ordered to be listed for admission,

but during the proceedings of the case learned Senior counsel representing

the plaintiff-respondent vehemently argued that no question of law

muchless substantial arises in the instant proceedings, enabling this Court

to admit the instant Regular Second Appeal and as such, this Court heard

the matter finally at the admission stage with the consent of learned

counsel for the parties.

7. Ms. Meera Devi, learned counsel representing the defendant-

appellant vehemently argued that since entire suit of the plaintiff was based

upon the entries made in the ledger, learned courts below ought not have

entertained the suit of the plaintiff without there being production of account

books. While referring to provisions of Order 7 Rule 17 CPC, Ms. Meera

vehemently argued that otherwise also suit for recovery based upon entries

in the account books could not be decreed without there being production

of account books by the plaintiff. She further argued that since there is

total non-compliance of provisions of 7 Rule 17 CPC, judgments and

decrees passed by learned courts below are not sustainable in the eyes of

.

law. Since both the courts below have totally ignored the provisions of

Order 7 Rule 17 CPC, which is mandatory and in the absence of same suit

could not be entertained/decreed by the courts below as such,

substantial question of law arises for consideration of this Court.

8. Learned Senior Counsel representing the plaintiff-respondent

vehemently argued that once factum with regard to purchase of the

steel/Saria has been duly admitted by the defendant in her

cross-examination and she has been not able to dispute the bill adduced

on record by the plaintiff qua purchase made by her, non production, if any,

of account books could not be made basis for dismissing the suit of the

plaintiff by the courts below. While referring to the record, learned Senior

Counsel representing the plaintiff-respondent further argued that plaintiff

filed suit against the defendant on the basis of bill Ex.PW1/A and ledger

entry Ex.PW1/B. Learned trial Court at the time of evidence of the plaintiff

allowed the plaintiff to produce bill Ex.PW1/A and ledger entry Ex.PW1/B

and as such, documents were produced by PW-1, Sh. Ramesh Verma,

proprietor of M/s Verma Trading Company, but at no point of time objection,

if any, ever came to be raised on behalf of the defendant qua production

and exhibition of aforesaid documents and as such, at this stage defendant

cannot be allowed to raise the plea that there is no compliance of provision

contained in Order 7 Rule 17 CPC.

9. Having heard learned counsel representing the parties and

perused the material available on record, this Court finds that vide bill

.

Ex.PW1/A Steel/Saria came to be sold by the plaintiff to the defendant for a

sum of Rs.72,385/- on credit basis. Learned counsel representing

the appellant-defendant while referring to aforesaid documents vehemently

argued that bare perusal of aforesaid documents suggests that the plaintiff

firstly ticked the column of cash, but subsequently cut the same and ticked

column of credit. However, having carefully perused the aforesaid docu-

ment, this Court finds that plaintiff has clearly cut the column of cash and

ticked the column of credit, meaning thereby Saria/Steel was sold to de-

fendant on credit basis.

10. Interestingly, in the case at hand though defendant has

claimed that the provisions of Order 7 Rule 17 CPC have not been

complied with but existence of bill Ex.PW1/A has been not disputed.

Defendant in her cross-examination admitted that she purchased

Steel/Saria from the plaintiff vide bill Ex.PW1/A. There is no dispute with

regard to purchase of Steel/Saria from the plaintiff firm, but only dispute is

with regard to payment. As per defendant she made payment in cash,

whereas as per the plaintiff Steel/Saria was sold on credit basis to the

defendant. In her cross-examination, defendant made altogether new plea

by stating that she made payment in cash, which is otherwise totally

contrary to her pleadings. In her pleadings, she nowhere stated that sum of

Rs. 72,385/- was paid by cash. Since, it is specific case of the defendant

that she made payment in cash, onus was upon her to prove such

transaction. However, in the instant case there is no evidence, worth cre-

dence, available on record suggestive of the fact that sum of Rs. 72,385/-

.

ever came to be paid to the plaintiff firm in cash by the defendant.

Defendant in her cross-examination categorically admitted that she cannot

produce any evidence to show cash payment in respect of the bill amount.

11. To the contrary, plaintiff firm successfully proved on record by

placing on record bill Ex.PW1/A and ledger entry Ex.PW1/B that it had sold

Steel/Saria worth Rs. 72,385/- to the defendant on credit basis and such

amount is still outstanding in the ledger Ex.PW1/B. There is yet another

aspect of the matter, that plaintiff firm issued legal notice Ex.PW1/D calling

upon the defendant to make the payment but she after having received the

legal notice never bothered to reply the same. If nothing was payable by

the defendant, it is not understood that what prevented defendant from

replying the legal notice Ex.PW1/D. In her cross-examination, defendant

admitted that she received legal notice and she also admitted that she did

not reply the legal notice. True, it is that as per provisions contained in

Order 7 Rule 17 CPC, a documents on which plaintiff sues, if is an entry in

the shop book or other account in his possession or power, he/she shall

produce the book or account at the time of filing of the plaint, together with

a copy of the entry on which he relies. But, in the case at hand, though

plaintiff not produced the accounts book at the time of filing of the plaint,

but during trial he besides producing bill Ex.PW1A qua the sale made in

favour of the defendant also produce ledger entry Ex.PW1/B, which at no

point of time ever came to be disputed by the defendant. Record of the

court below clearly reveals that learned trial court allowed the plaintiff to

produce the bill Ex.PW1/A and ledger entry Ex.PW1/B at the time of

.

examination of PW-1, Sh. Ramesh Verma, proprietor M/s Verma Trading

Company, but at no point of time objection, if any, qua the exhibition of

aforesaid documents ever came to be raised on behalf of the defendant.

Moreover, once there is no dispute with regard to issuance of bill Ex.PW1/A

qua the sale made in favour of the defendant by plaintiff, non-production of

account books otherwise has lost its relevance in the instant case. Once

defendant herself admitted the factum with regard to purchase of

Steel/Saria and took the specific stand that she had made payment in

cash, onus was upon her to prove the mode and source of the payment,

especially when such fact was seriously disputed by the defendant by

placing heavy reliance on ledger entry Ex.PW1/B, wherein sum of

Rs.72,385/- was shown to be outstanding against the defendant.

12. Having perused the material available on record, this Court is

fully satisfied and convinced that both the Courts below have very

meticulously dealt with each and every aspect of the matter and there is no

scope of interference, whatsoever, in the present matter. No question of

law muchless substantial arises in the instant case for adjudication.

Besides above, this Court sees no reason to interfere in the

concurrent finding of facts and law recorded by the court below, especially

when learned counsel representing the appellant has been not able to

point out any perversity in the findings recorded by the Court below.

13. Hon'ble Apex Court in Laxmidevamma and Others vs.

Ranganath and Others, (2015)4 SCC 264, it has been held as under:

.

"16. Based on oral and documentary evidence, both

the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose

in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that

premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be

perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded

by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."

(p.269)

14. Aforesaid exposition of law clearly suggests that High Court,

while excising power under Section 100 CPC, cannot upset concurrent

findings of fact unless the same are shown to be perverse. In the case at

hand, this Court while examining the correctness and genuineness of

submissions having been made by the parties, has carefully perused

evidence led on record by the respective parties, perusal whereof certainly

suggests that the Courts below have appreciated the evidence in its right

perspective and there is no perversity, as such, in the impugned judgments

and decrees passed by both the Courts below. Moreover, learned counsel

representing the appellants was unable to point out perversity, if any, in the

impugned judgments and decrees passed by both the Courts below and as

such, same do not call for any interference.

15. Consequently, in view of the detailed discussion made

hereinabove, this Court sees no illegality and infirmity in the impugned

.

judgments and decrees passed by courts below which otherwise appear to

be based upon proper appreciation of evidence and as such, same are

upheld. The present appeal fails and same is accordingly dismissed.

Interim directions, if any, are vacated. All miscellaneous applications are

disposed of.

    20th October, 2021
          (shankar)
                          r         to                 (Sandeep Sharma),
                                                             Judge