Punjab-Haryana High Court
Prem Parkash vs M/S Des Raj Vinod Kumar on 20 December, 2022
RSA-1678-1992(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-1678-1992(O&M)
Date of decision:-20.12.2022
Prem Parkash
...Appellant
Versus
M/s Des Raj Vinod Kumar Main Bazar (Cloth Merchants) and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.R.K. Gupta, Advocate
for the appellant.
Mr.Kanwar Goyal, Advocate
for the respondents.
****
H.S. MADAAN, J.
1. Briefly summed up, the facts of the case are that plaintiff
Prem Parkash son of Sh.Hargobind Rai, resident of Jind had brought
a suit for recovery of Rs.6,500/- against defendants M/s Desraj Vinod
Kumar Main Bazar (Cloth Merchants) Jind through its partner Desraj
as well as Desraj impleading S/Sh. Om Parkash, Sat Parkash, Jain
Parkash, Narinder Kumar sons and Smt.Reshma Devi, Smt.Ram
Devi, Smt.Krishana Devi, Smt.Sona Devi, Smt.Shanti Devi,
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Smt.Savitra Devi, Smt.Saroj Rani, Smt.Usha Devi and Smt.Savita
Rani daughters of Sh.Hargobind Rai as proforma defendants.
2. As per the case of the plaintiffs Lala Hargobind Rai,
since deceased father of the plaintiff was carrying on business of sale
of cloth in Jind Mandi under the name and style of M/s Prabhu Dayal
Hargobind Rai, which was joint Hindu family business and Lala
Hargobind Rai was Karta of that Hindu undivided family; he used to
maintain the regular accounts and struck balance daily; the firm used
to issue bills to the purchasers; after death of Lala Hargobind Rai, the
plaintiffs and proforma defendants are his legal heirs, who had
entered into a family settlement in terms of which plaintiff became
owner of joint Hindu family business; the defendants had purchased
cloth worth Rs.4324.64 on credit from the plaintiff on 20.6.1983 vide
bill No.65; the defendant had appended his signatures on the bill
admitting the same to be correct and carbon copy of the bill was
given to defendant; on the basis of such bill entries were made in the
regular account books of the concern of the plaintiff; the bill amount
along with interest has been outstanding against the defendants,
which had not been paid, giving rise to a cause of action to the
plaintiff to bring the suit for recovery of Rs.6,500/- i.e. Rs.4324.64 as
principal amount and Rs.2175.36 interest thereon. The plaintiff had
served a legal notice upon the defendants to pay this amount but to
no effect, as such suit in question was filed.
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3. On getting notice, defendants No.1 and 2 appeared and
filed a joint written statement contesting the suit, whereas defendants
No.3 to 15 did not appear despite service, as such were proceeded
against ex-parte.
4. In the joint written statement filed on behalf of
defendants No.1 and 2 many assertions in the plaint were denied. The
defendants denied having purchased any cloth on credit from the
plaintiff on 20.6.1983. According to the defendants in ordinary
course of the business, the original bill is given to the purchaser and
duplicate is kept by the seller and it was so stated by the plaintiff in
his original plaint, thereafter the plaintiff by amending the plaint has
taken plea contradicting the matter in defence by the defendants in
their previous written statement; the carbon copy of the bill was torn
by Hargobind Rai on 20.6.1983 and thrown away, which was
collected by answering defendants and then attached with the
previous written statement. According to the defendants, suit had
been filed playing fraud with them. Neither any cause of action had
arisen to the plaintiff to bring the suit nor the suit was within
limitation; as a matter of fact, no amount was due from the
defendants to the plaintiff. The defendants denied their liability to
pay any amount to the plaintiff. The defendants had taken up a plea
that defendant Desraj had gone to the shop of Hargobind Rai in Jind
Mandi on 20.6.1983 and selected clothes for purchase for a
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consideration of Rs.4844.76; on checking, he found that Hargobind
Rai had prepared the bill of some items at higher rates than actual
sale price disclosed to the defendant; that gave rise to a dispute;
Desraj did not accept the cloth worth Rs.520.12 paise and he wrote
about it on the bill No.65 dated 20.6.1983, as such Hargobind Rai
lost tamper and threw back the selected cloth inside his shop and tore
the carbon copies of the bill Nos.62, 63, 64 and 65 dated 20.6.1983
and threw the pieces thereof; defendant No.1 collected those carbon
copies of the bills and produced the same with the written statement;
Hargobind Rai had cleverly kept the original bills No.62, 63, 64 and
65 dated 20.6.1983 with him and if the defendants had purchased the
cloth as alleged then the original said bill should have been with him
and not with Hargobind Rai. In the end, the defendants prayed for
dismissal of the suit.
5. The plaintiff had filed replication controverting the
allegations in the written statement whereas reiterating the averments
in the plaint.
6. On the pleadings of the parties, following issues were
framed:
1. Whether Lala Hargobind Rai was carrying on a joint Hindu
Family business in the name of M/s Prabhu Dayal Hargobind
Rai and he was the karta of the joint Hindu family? OPP.
2. Whether the plaintiff and proforma defendants are the legal
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heirs of deceased Lala Hargobind Rai? OPP.
3. Whether the plaintiff is entitled to recover all the debts owed
by the said Joint Hindu Family by virtue of family settlement?
OPP.
4. Whether the defendant purchased on credit the cloth worth
Rs.4324.64 paise from M/s Prabhu Dayal Hargobind Rai and
appended his signatures on the bills? OPP.
5. Whether the suit has been filed by the plaintiff by playing a
fraud over the defendant as alleged by defendants? OPD.
6. Whether the plaintiffs entitled to recovery any interest, if so, at
what rate and to what amount? OPP.
7. Whether the suit is time barred? OPD.
8. Relief.
7. The parties were given opportunities to lead evidence in
support of their respective claims.
8. After hearing learned counsel for the parties, the trial
Court decided issue No.1 in favour of plaintiff and against the
defendants, issues No.2 and 3 in favour of the plaintiff and against
defendants No.1 and 2, issue No.4 in favour of the plaintiff, issue
No.5 against the defendants No.1 and 2 and in favour of the plaintiff,
issue No.6 in favour of the plaintiff and against the defendants No.1
and 2, issue No.7 against defendants No.1 and 2 and in favour of the
plaintiff. Resultantly, suit of the plaintiff was decreed and a decree
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for recovery of RS.6500/- along with costs of the suit and future
interest at the rate of Rs.1.50% per mensem from the date of filing of
the suit till realisation was passed in favour of the plaintiff and
against defendants No.1 and 2. This was so done vide judgment and
decree dated 16.8.1991.
9. Feeling aggrieved by the said judgment and decree, the
defendants had filed an appeal in the Court of District Judge, Jind,
which was assigned to Additional District Judge, Jind, who vide
judgment and decree dated 22.5.1992 accepted the appeal and set
aside the judgment and decree passed by the trial Court and
dismissed the suit of the plaintiff.
10. Now it was the turn of the plaintiff to feel dissatisfied
with the judgment and decree passed by Additional District Judge,
Jind and he has knocked at the door of this Court by way of filing
regular second appeal praying that the same be accepted, the
impugned judgment and decree passed by Additional District Judge,
Jind be set aside and the suit filed by them be decreed.
11. On getting notice of regular second appeal, the
respondents have appeared before this Court through counsel.
12. I have heard learned counsel for the parties besides going
through the record.
13. I find that the judgment passed by the First Appellate
Court of learned Additional District Judge, Jind is much more
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convincing than the judgment by the trial Court. Learned Additional
District Judge, Jind has gone into depth of the matter and considering
various doubts and suspicious circumstances came to the conclusion
that case of the plaintiff was not proved. It has been noticed in para
No.10 that facts pleaded by defendants that when defendant No.1 had
gone to the shop of plaintiff where some dispute had arisen as a
result of which the plaintiff had torn the original bills throwing of the
pieces which had been collected by the defendant and plaintiff had
thrown back the selected cloth inside the shop, have not been
specifically denied in the replication. It was observed that the version
of the defendants inspires confidence since normally original bill is
given to customer, who purchased the cloth and carbon copy is
retained but in this case in one breath it is stated that the carbon copy
had been given to defendant purchaser while in another breath, it is
stated that original bill had been given to the defendant and further
no notice of demand was ever served by the plaintiff upon the
defendant. It was further observed that bill Ex.P2 to Ex.P5, which
have been made basis by the trial Court to decree the suit of the
plaintiff were not properly proved since those were not signed by
PW2 Yash Pal, who had proved the bills stating that he had issued
the same. Furthermore, there is no reference in the plaint that it was
PW2 Yash Pal, who is real nephew of the plaintiff, who had prepared
those bills and issued the same to defendants thereafter making
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entries in the account books. It was also noticed that Desraj
defendant appearing as DW1 had stated that writings Mark A, Mark
B and Mark C were prepared by him regarding return of cloth worth
Rs.520/12 Naya Paisa and regarding striking out balance of
Rs.4324/64 naya paisa. Corroboration to the version of defendants
also came from the evidence adduced by the plaintiff that original
bills Ex.P2 and Ex.P3 were affixed in the bill book with supporting
chits whereas it is not so with regard to other bills, which showed
that some objection was raised by defendants when the original bill
was being torn from the bills book for the purpose of giving to
defendant purchaser and then there took place a dispute between the
two and consequently delivery of cloth was not given. It is also
explained by the defendant that he took away carbon copies of the
bills because he had put his signatures on the original bill.
14. After discussing the various factors and the evidence
learned Additional District Judge, Jind has come to the conclusion
that PW2 Yashpal was not present at the time of transaction and he
was introduced later on after death of Lala Hargobind Rai. Therefore,
purchase of clothes by defendants from the plaintiff is not proved.
Therefore, finding recorded by the trial Court on issue No.4 were
reversed and the issue was decided in favour of the defendants
against the plaintiff. Findings on issue No.5 were also reversed. The
judgment passed by the trial Court is based upon assumptions and
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presumptions as well as conjectures. Whereas, the judgment passed
by Additional District Judge, Jind is well reasoned, based upon
proper appraisal and appreciation of evidence and correct
interpretation of law. There is no illegality or infirmity therein, which
might have called for interference by this Court by way of accepting
the regular second appeal.
15. No substantial question of law arises in this appeal.
16. The appeal stands dismissed accordingly.
Since the main appeal stands dismissed, the
miscellaneous application(s), if any, stand disposed of accordingly.
20.12.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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