The present appeals have been filed by the appellant original plaintiff under sec. 96 read with Order 41 of the Civil Procedure Code being aggrieved by the judgment and order passed by the City Civil Court, Ahmedabad, in Summary Civil Suits Nos. 3220 of 2000 and 3128 of 2000 dated 11.11.2009 on the grounds set out in the memo of appeals, inter alia, that the learned Judge has erred in not relying upon the documents produced and has failed to appreciate the material and evidence on record. It is also contended that the court below has erred in not giving exhibits to the documents produced including the agreement and has erred in holding that there was no contract of supervision between the appellant and the respondent. 2. Heard learned advocate Mr. Vivek Mapara for the appellant original plaintiff and learned advocate Mr. Tejas Satta for the respondent original defendant.
3. Learned advocate Mr. Mapara referred to the papers and the R&P in support of his submission and he has particularly referred to the deposition of the plaintiff exh. 37 as well as exhs. 49 & 50 where the witnesses are examined. Learned advocate Mr. Mapara referred to the deposition of the plaintiff at exh. 37 and referring to the same he has stated that the agreement has been admitted and therefore considering the material and evidence on record there is no dispute that the work of supervision was given to the appellant for which the amount was due and payable. He submitted that the court below has failed to appreciate this aspect. He has also referred to exh. 45 which is filed in Summary Suit No. 3128 of 2000 with regard to the loan transaction and submitted in detail that the transaction has been established by the fact that cheque has been given.
4. Learned advocate Mr. Mapara submitted that the court below has committed an error in not exhibiting the agreement and what is required for exhibiting a document is that the original should be produced and the content should be proved with the evidence of the witnesses. He submitted that since the agreement has not been exhibited it has affected his right. However, he submitted that in another case admittedly the cheque has been issued and therefore the burden was cast upon the other side which has not been discharged. He submitted that it was not creditor's payment for which the cheque was given and the presumption in favour of the plaintiff would arise. He therefore submitted that the present appeals may be admitted.
5. Learned advocate Mr. Satta for the respondent original defendant referred to the papers as well as the impugned judgment in detail and pointedly referred to the fact that in the suits which have been filed the agreement or contract has not been even exhibited. He submitted that there is an inconsistent stand with regard to the entire demand of the claim as, on one hand, it is claimed towards the supervision charge and on the other it has been claimed that it was borrowed and no evidence has been placed on record except the mere say of the plaintiff. He submitted that therefore the court below having considered the evidence in detail has rightly dismissed the suits and the present appeals may not be entertained. He pointedly referred to the observations made in this judgment to emphasise that though the documentary evidence has been produced casually no attempt has been made to exhibit the same according to the Indian Evidence Act. He further submitted that not only the plaintiff but the other two witnesses who have been examined at exh. 49 & 50 have not supported the case of the plaintiff as discussed in detail by the court below.
6. Similarly, learned advocate Mr. Satta submitted that the amount which is being claimed as a monetary transaction by advancing the loan has not been reflected in the Income-tax Return which is also noted by the court below. He further submitted that there is not even a writing or a kachha slip for any such loan which has also been noted by the court below. Learned advocate Mr. Satta submitted that it has been observed, “The plaintiff himself has admitted in cross-examination that he has not obtained any writing of loan and he has no documentary evidence to show that he has advanced the loan to the defendant. It is an admitted position that after the death of defendant's father, defendant has filed a suit to recover Rs. 1,37,000/- from the plaintiff. The certified copy of the plaint is produced at exh. 79. The said suit has been filed on 10/1/2001 and therefore the plaintiff has filed the present suit as a counter-blast.”
7. Learned advocate Mr. Satta therefore submitted that there is a clear finding that there is no evidence produced in support of the claim made by the plaintiff and on the contrary, as discussed above, it is a counter blast. He therefore submitted that the present appeals may not be entertained.
8. In rejoinder, learned advocate Mr. Mapara submitted that from the fact that cheque has been given presumption could be made that it was not for creditor's payment and a presumption could be made for the amount due. He submitted that the burden has not been discharged by the defendant when the cheque has been produced. He submitted that if it was for any other transaction it could have been established by the defendant with any evidence and therefore the appeals may be admitted.
9. In view of rival submissions it is required to be considered whether the present appeals can be entertained or not.
10. Normally, the appeals are required to be admitted.
However, at the same time, it would require a closer scrutiny and therefore having considered the R&P and the rival submissions, it is evident that Summary Suit No. 3220 of 2000 has been filed based on the agreement for supervision work which has not been exhibited itself. If the submission had to be accepted that the court has committed an error in not exhibiting the document which is the basis or foundation of the suit, it was open for the plaintiff to take appropriate course, which has admittedly not been done. Further, even the two witnesses who have been examined have not supported the case. Moreover, the plaintiff himself in his deposition has given different versions. On the one hand, the claim is made with regard to supervision charges and on the other hand he has claimed that money was advanced. It is in these circumstances, the scrutiny of the evidence clearly establish that there is no reliable evidence on record to establish the case with regard to the claim for supervision charge based on an agreement. The agreement itself is not exhibited. He is not also a registered engineer. In the cross-examination it is stated that the rate of the supervision charge is also not fixed.
11. In another suit which has been filed being Summary Suit No. 3128 of 2000 based on the cheque the claim is made that the fact the fact that cheque has been issued is not for creditor's payment and presumption could be made that the amount was due. Again, the sole basis is the cheque without any corroborative supporting evidence for any transaction. In fact, in the income-tax return it has not been reflected if the amount was advanced as a loan. On the other hand, the defendant has categorically claimed that the suit was filed by him earlier for recovery of the amount from the present plaintiff and thereafter the present suit has been filed as a counter claim. The certified copy of the plaint is also produced on record. It is in these circumstances having examined the entire material and evidence on record, the court below has declined to entertain the suits which cannot be said to be erroneous.
12. It is well accepted that summary suit under O. 37 would be maintainable in respect of the dues subject to fulfillment of the conditions mentioned therein. As discussed above, the plaintiff has failed to establish the claim by any cogent material and evidence and in fact there are different versions. Therefore, it cannot be said that there is any error in the findings recorded or the conclusion arrived by the court below or it has been misdirected. Therefore, the present first appeals cannot be entertained and deserve to be dismissed and accordingly stand dismissed. No order as to costs.
(Rajesh H. Shukla, J.) (hn)