The present First Appeal has been filed under Section 96 of the Code of Civil Procedure challenging the impugned judgment and order passed by the City Civil and Sessions Court in Civil Suit No.1120 of 1984 dated 16.4.1990 on the grounds stated in the memo of the Appeal.
The Appellants are the heirs and legal representatives of deceased Smt. Mamoldevi Dharewa who had filed the above Civil Suit No.1120 of 1984 against the Respondents, who are the original defendants, to recover the amount which was to be paid. There is also a reference in the Suit filed by Smt. Fulladevi Dharewa being Civil Suit No.3735 of 1979 for the identical relief for the money decree against the same Respondents - Original Defendants with regard to the claim against the Defendant No.3 - Firm. As it transpires, the Suits were consolidated and they have been disposed of by a common judgment and the Suits have been ordered to be dismissed vide judgment and order dated 16.4.1990. The present Appellants have challenged the judgment and decree contending inter alia that the amount has not been received as agreed between the parties while passing the consent decree or the compromise in Civil Suit No. 3735 of 1979. Learned Advocate Mr. R.A.Mishra for the Appellants has submitted that the entire controversy is raised on the narrow compass as to whether the amount of Rs.35000/- has been paid as per the compromise arrived at between the parties or not. He has stated that though the amount was to be paid and it is believed that it has been received by the present Appellants. There is no evidence and the court below has erroneously come to the conclusion that the amount has been received in cash and therefore the present Appeal.
Learned Advocate Mr. R.A.Mishra for the Appellants has therefore submitted that the conclusion arrived at with regard to the payment of the amount is not supported by any evidence or material and therefore the present Appeal may be allowed. He has also fairly stated that in a cognate matter, I.e. Civil Suit No. 1119 of 1984, the Plaintiff was Fulladevi Dharewa and the heirs had filed First Appeal No.52 of 1993, which is referred in this common judgment, and the Appeal came to be dismissed by this Court by judgment and order dated 24.3.2011.
Though the submissions have been made, as can been seen from the discussion in the impugned judgment as well as the order of this Court in First Appeal No.52 of 1993 arising from the same impugned judgment that the amount has been paid and pursuant to the compromise arrived at in Civil Suit No.3735 of 1979, the Defendant No.3 - Firm was to make the payment to the Defendant No.1. Out of the said amount, the Defendant No.1 in the said Suit was required to disburse and pay the amount to the plaintiffs and other creditors. The said amount which has been received by Defendant No.1 was to the tune of Rs.70,000/- from Defendant No.3-Firm and out of the said amount, Rs.35,000/- was required to be paid by Defendant No.1 to the Original Plaintiff - Smt. Mamoldevi Dharewa, I.e. the Plaintiff in Civil Suit No.1120 of 1984 and the same amount to the Plaintiff in Civil Suit No.1119 of 1984. Though the submissions have been made by learned Advocate Mr. R.A.Mishra that there is no evidence and the amount cannot be said to have been received. There is a reference in the impugned judgment to Exhibits 76 and 84 which is a writing which bears the signature of the Plaintiff. Therefore, considering the documentary evidence at Exhibits 100, 101, 102 and Exhibit 76 and 84, the court below come to the conclusion that the amount as agreed as per the compromise in Civil Suit No.3735 of 1979 has been paid which cannot be said to be erroneous. There is a discussion on the same line referring to the very aspect in the judgment of this Court in First Appeal No.52 of 1993. It has been discussed and quoted that when the payment was made by Defendant No.1 to the Plaintiff, both the Plaintiffs (Fuladevi and Momaldevi) as well as defendant no.1 and Hariram were present. Defendant No.1 did not examine Hariram, but he himself has substantiated the fact about the receipt which is Exhibit 76 and 84. Therefore, considering this overall evidence with regard to the payment which is corroborated by the other evidence as discussed above, it cannot be said that the impugned judgment and order is erroneous.
The Court is in complete agreement with the findings arrived at on the appreciation of evidence, including the evidence of the witnesses as discussed above and therefore, the present First Appeal cannot be entertained and deserves to be dismissed and accordingly stands dismissed.
(Rajesh H. Shukla,J) Jayanti* Top