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Prem Pradhan vs. Santosh Rai
RFA No 08 of 2019
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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R.F.A. No. 08 of 2019
Prem Pradhan,
S/o late P.K. Pradhan,
R/o Duga, Rangpo,
East Sikkim
..... Appellant
Versus
Santosh Rai
S/o Shri Padam Rai,
R/o Daragaon, Turuk Billing,
Melli, South Sikkim. .... Respondent
Appeal under Order XLI Rules 1 and 2 of the Code of Civil
Procedure, 1908.
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Appearance:
Mr. Sajal Sharma, Advocate for the Appellant.
Mr. Manish Kumar Jain, Advocate for the Respondent.
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Date of hearing : 28.03.2022, 29.03.2022 & 31.03.2022
Date of Judgment: 31.03.2022
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The impugned judgment dated 30.03.2019 passed by
the learned District Judge, Special Division-I, East Sikkim at
Gangtok (learned District Judge) in Money Suit No. 22 of
2016 is assailed in this appeal by the appellant who was the
plaintiff. The learned District Judge has non-suited the
appellant on the ground that he has failed to prove that
during the year 2014 the defendant had purchased day old
chicks and poultry feed from him for which he was liable to 2 Prem Pradhan vs. Santosh Rai RFA No 08 of 2019
pay an amount of Rs.17,60,105/-. Document X sought to be
produced by the plaintiff during trial seems to be central to
the case sought to be established by the plaintiff. In the
plaint the plaintiff produced a copy of document X and
stated:
"5. That on 29th November, 2014, the plaintiff and the defendant signed an agreement letter in the presence of witnesses wherein it was accepted and admitted by both the plaintiff and the defendant that the defendant owed the plaintiff a debt of Rs.17,60,105 (Rupees seventeen lakhs sixty thousand one hundred and five only). The defendant gave the plaintiff four blank cheques bearing cheque numbers 489729, 489728, 489727 and 489726 and agreed that the plaintiff may keep hold of the cheques until the amount owed was fully paid off by the defendant. In the same agreement, it has been mentioned that the first instalment in payment of the debt shall be given by the defendant by the end of December, 2014. The copy of the agreement dated 29th November, 2014 and the copies of the cheques bearing cheque numbers 489729, 489728, 489727 and 489726 are annexed herewith and marked as Annexure-I, II, III, IV and V respectively."
2. The defendant filed his written statement on
03.05.2017. With regard to document X he took the
following plea:
"7. That reference paragraph 5 of the plaint, the defendant vehemently denied all the contents thereof and puts the plaintiff to the strict proof thereof. The defendant submits that since the Defendant stopped buying old-day chicks and feeds from the Plaintiff, in an around the month of August, 2014, the Plaintiff asked this defendant to meet him at Rangpo Bazar and asked to settle dues if any as such he is not maintaining his record of transactions and when this Defendant told him that he would settle the dues if he is owed to pay him after checking the records. Further the plaintiff also requested the Defendant to hand over all documents relating to the transaction made between them in the year 2013 and the defendant declined his request, upon such refusal, out of anger the Plaintiff abused the Defendant and also threatened him with dire consequences.
It is further submitted that the annexure-„I‟ annexed by the Plaintiff is a document executed by the Plaintiff only and I was asked to sign on it being 3 Prem Pradhan vs. Santosh Rai RFA No 08 of 2019
their supplier and further requested to issue blank cheques (i.e., Annexure-II, III, IV and V) by the Plaintiff as well as the Members of the Turuk Poultry Livestock Co-operative Society. It is further submitted that the members of the said co-operative was on the impression that they had some outstanding dues towards the Plaintiff for the transactions made in the year 2013 and that the Plaintiff was failed to show actual credit amount to them."
3. On 06.11.2017 the learned District Judge recorded an
order, at the time of filing of originals, stating that the
learned counsel for the plaintiff claimed the photo copy to be
the original agreement although it looked like a photo copy.
The learned District Judge also recorded the objection of the
learned counsel for the defendant. The learned District
Judge admitted the documents in evidence subject to be
being proved at an appropriate stage.
4. On 07.11.2017 the learned District Judge framed six
issues. Issue no.4 related to document X. Issue no.4 read:
"Whether vide the agreement dated 29.11.2014 the defendant acknowledged the above liability towards the plaintiff? Or, whether the defendant was coerced to simply sign on the said agreement? (OPP) (OPD)".
5. The plaintiff filed his evidence on affidavit dated
26.02.2018. In the affidavit the plaintiff stated:
"the agreement dated 29.11.2014 is exhibited as exhibit 1 wherein exhibit 1(a) is my signature, exhibit 1(b) is the signature of Santosh Rai, the defendant, exhibit 1(c ) is the signature of Prakash Rai, exhibit 1(d) is the signature of Bikash Chettri, exhibit 1(e) is the signature of Krishna Rai, exhibit 1(f) is the signature of Issac Rai, exhibit 1(g) is the signature of Robin Rai and exhibit 1(h) is the signature of Pardeep Rai."
6. At the time of authentication of the evidence on
affidavit the plaintiff explained "though I have also referred to
the concerned agreement-letter dated 29.11.2014 as exhibit 1
in my evidence on affidavit the same can only be marked as 4 Prem Pradhan vs. Santosh Rai RFA No 08 of 2019
document X being a photostat copy." The plaintiff was cross
examined by the defendant on document X.
7. In the defendant's evidence on affidavit he took the plea
that the documents filed by the plaintiff are false, fabricated
and that he was made to execute the alleged document on
misrepresentation. He also took the plea that the plaintiff
had committed fraud upon him and his family members and
he was forced to sign on the alleged documents and made to
issue the cheques. He pleaded that the cheques were in
custody of the plaintiff and same were given as security and
further that he had already paid the entire money to the
plaintiff. The defendant was cross examined by the plaintiff.
He admitted that the initials on document X was his and
that he had signed it. He explained it by saying that the
contents thereof were not explained to him.
8. On 01.05.2018 the defendant filed a petition under
section 45 of the Indian Evidence Act, 1872 read with
section 151 of the CPC seeking leave of the court for sending
document X to RFSL for its analysis.
9. On 19.05.2018 the learned District Judge allowed this
application and sought the opinion of the RFSL on "(a)
agreement letter dated 29.11.2014 (in its front as well as
reverse side) marked X for identification is a genuine original
document or photostat copy of the original?" The opinion of
the RFSL, Saramsa was that document X is the reproduction
of the original copy.
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Prem Pradhan vs. Santosh Rai RFA No 08 of 2019
10. The learned District Judge examined documents X and
held that it is inadmissible and cannot be looked into.
11. The appellant has preferred an appeal under Order XLI
Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC)
against the impugned judgment and decree dated
30.03.2019 dismissing the suit filed by the appellant. The
appellant has also preferred an application under Order XLI
Rule 27 read with section 151 C.P.C. for production of
additional evidence.
12. The appellant was represented by Mr. Sajal Sharma,
learned counsel. Mr. Manish Kumar Jain represents the
respondent. Mr. Sharma submits that the original of
document X placed along with the application for additional
evidence is vital to the case and a perusal thereof makes it
evident that the respondent had clearly admitted his liability
to pay the sum of Rs. 17,60,105/- towards payment of the
purchase of the day old chicks and poultry feed by him. He
relied upon two judgments of this court and one of the
Andhra Pradesh High Court for the said purpose. They are
Shri T.Ongyal Bhutia vs. Smt. Phumpi Bhutia & Ors.1; Shri
Damber Singh Chettri vs. Shri Lachuman Chettri2; and The Land
Acquisition officer and Sub-Collector, Vijayawada and etc. Vs.
Chigurupati Umamaheswara Rao & Ors.3 The appellant
explains that the original of document X that was misplaced
in a pile of files and documents has now been located. Mr.
1 2014 SCC OnLine Sikk 127 2 2019 SCC OnLine Sikk 159 3 AIR 1993 Andhra Pradesh 8 6 Prem Pradhan vs. Santosh Rai RFA No 08 of 2019
Jain referred to the judgment of the Supreme Court in H.S.
Goutham vs. Rama Murthy & Anr.4 and submitted that it is
impermissible to direct taking additional evidence in appeal
without following procedure under Order 41 Rule 27 to 29
CPC.
13. As held by the Supreme Court it is required to be noted
that as per the provisions of Order 41 CPC, the appellate
court may permit additional evidence to be produced
whether oral or documentary, if the conditions mentioned in
Order 41 Rule 27 CPC are satisfied after the additional
evidence is permitted to be produced in exercise of powers
under Order 41 Rule 27. Thereafter, the procedure under
Order 41 Rule 28 and 29 is required to be followed.
14. The appellant has been able to satisfy that the
appellant could not genuinely produce the original of
document X (referred to as the original of document X in this
judgment only for convenience) as he had misplaced it
during the trial. The appellant has now placed a document
stating to be the original of document X along with the
application. Prima facie, when compared with document X it
does seem to be its original. The appellant has also been
able to satisfy that it is vital and relevant to determine the
issues involved in the present suit. As noticed above the
entire case of the plaintiff is based primarily on this
document, a copy of which had been filed by the plaintiff
along with the plaint itself. Although an application for 4 (2021) 5 SCC 241 7 Prem Pradhan vs. Santosh Rai RFA No 08 of 2019
leading secondary evidence had been filed during trial the
learned District Judge rejected that application. It was then
the case of the appellant that he had mysteriously lost the
original of document X and lodged a report about it.
Consequently, the document X was not considered.
15. It is incomprehensible that when the appellant was
banking so heavily on document X he would have withheld
its original on his own free will. A perusal of the original of
document X sought to be produced as additional evidence
does reflect that it is an important document to determine
the outcome of the suit which was dismissed for lack of
evidence. In the circumstances the application for
production of the original of document X as evidence is
allowed. The file is sent back to the court of learned District
Judge, Special Division-I at Gangtok to take additional
evidence on the original of document X (agreement letter
dated 29.11.2014 filed along with I.A. No.01 of 2020) and
after completion of recording of the additional evidence to
send it back to this court. While taking the additional
evidence as directed, the learned District Judge shall
consider the genuineness and authenticity of the additional
evidence, including as to whether the contents thereof have
been proved by the party relying thereon, and thereafter, to
return the evidence to this court together with its findings
thereon and reasons therefor within a period of three weeks
hence. The learned District Judge shall afford an 8 Prem Pradhan vs. Santosh Rai RFA No 08 of 2019
opportunity to the respondent to adduce evidence in
rebuttal, but confined to the aspects covered by the original
of document X.
16. Money Suit shall be restored to its original number in
the files of the learned District Judge for the said purpose.
17. A copy of this judgment be sent forthwith to the Court
of the learned District Judge.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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