1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants- original defendants to quash and set aside the impugned judgment and decree passed by the learned Principal Civil Judge, Halol dated 27/09/2007 in Regular Civil Suit No. 124/2005 decreeing the suit directing the appellants-original defendants to return the amount of Rs. 30,450/- with 9% interest as well as the impugned judgment and order passed by the learned appellate Court dated 11/10/2011 in Regular Civil Appeal No. 75/2008.
2. The facts leading to the present Second Appeal in a nutshell are as under;
2.1. The respondent-original plaintiff was serving with the appellants-original defendants and he claimed Rs. 11,600/- for LTC and for that he produced receipt/certificate issued by Kumpavat Brothers Tourism. The department sanctioned Rs. 10,150/-, which was paid to the respondent-original plaintiff. It appears that thereafter the respondent-original plaintiff was served with the notice to recover the aforesaid amount of Rs. 10,150/- on the ground that in fact he has illegally recovered the aforesaid amount of LTC as Kumpavat Brothers Tourism was not an authorized agent. It was also the case on behalf of the appellants-original defendants that in fact the respondent-original plaintiff and his family members have not travelled at all and still the amount of LTC was claimed. Having served with the notice, respondent-original plaintiff with objection deposited the entire amount and thereafter had instituted Regular Civil Suit No. 124/2005 in the Court of learned Principal Civil Judge, Halol for recovery of Rs.30,450/-. Though served with the summons, nobody appeared on behalf of the appellants-original defendants and the appellants- original defendants did not contest the suit. The respondent-
original plaintiff led the evidence, oral as well as documentary, and on appreciation of evidence it was found that Kumpavat Brother Tourism was certified/proved agency and the respondent-original plaintiff and his family members have in fact traveled. The learned trial Court decreed the suit directing the appellants-original defendants to return Rs. 30,450/- with 9% interest. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Principal Civil Judge, Halol dated 27/09/2007 in Regular Civil Suit No. 124/2005 in decreeing the suit, the appellants-original defendants preferred Regular Civil Appeal No. 75/2008 before the learned District Court, Panchmahal at Godhra and the learned Second Additional District Judge, Porbandar at Godhra by impugned judgment and order dated 11/10/2011 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court. Being aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below the appellants-original defendants have preferred the present Second Appeal.
3. Shri Uday Shashtri, learned advocate appearing on behalf of the appellants-original defendants has made only one submission that the learned appellate Court ought to have remanded the matter to the learned trial Court to prove that the respondent-original plaintiff and his family members did not travel and still claimed LTC and, therefore, it is requested to remand the matter to the learned trial Court for deciding the suit afresh.
4. Heard Shri Shashtri, learned advocate appearing on behalf of the appellants-original defendants and considered the impugned judgment and order passed by both the Courts below. At the outset, it is required to be noted that though served, nobody appeared on behalf of the appellants-original defendants and even written statement was also not filed and the suit was not contested at all. It is also required to be noted that by a speaking order, the right of the appellants-original defendants to file the written statement as well as to lead the evidence was also closed. Not only that the respondent- original plaintiff also led the evidence, which was not challenged by the appellants-original defendants. It appears that on appreciation of evidence, the learned trial Court has specifically led that the respondent-original plaintiff had travelled through the travel agent, Kumpavat Brother Tourism, which was recognized and approved travel agent. On appreciation of evidence, the learned trial Court held that in fact the respondent-original plaintiff travelled and did not get LTC amount. The learned advocate appearing on behalf of the appellants-original defendants is not disputing that as such the LTC claim of the respondent-original plaintiff while travelling through Kumpavat Brother Tourism is Government recognized travel agent. Considering the aforesaid facts and circumstances, it cannot be said that the learned trial Court has committed any error and/or illegality in directing the appellants-original defendants to return the amount of Rs. 30,450/- with 9% interest, which has been confirmed by the learned appellate Court. As such, no case is made out even to remand the matter to the learned trial Court as despite sufficient opportunity the appellants-original defendants did not appear before the learned trial Court and even did not contest the suit.
5. In view of the above and for the reasons stated hereinabove, there is no substance in the present Second Appeal, which deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 3524/2012 In view of dismissal of the Second Appeal, no order in the Civil Application.
(M.R. SHAH, J.)
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