1. By this appeal under section 100 of the Code of Civil Procedure, 1908 (the Code), the appellants – original defendants have challenged the judgment and decree dated 29th January, 2008 passed by the learned Additional District Judge, Fast Track Court No.1, Surendranagar in Regular Civil Appeal No.23/2006 whereby the appeal has been allowed and the judgment and decree dated 13th October, 2000 passed by the learned Civil Judge (S.D.), Surendranagar in Special Civil Suit No.98/1990 has been quashed and set aside.
2. The respondent - plaintiff instituted the above referred suit in the Court of the learned Civil Judge (S.D.) at Surendranagar contending that he is the proprietor of Gopal Metal Rolling Mills situated at Wadhwan city and dealing in brass and utensils etc. That the defendant is dealing in production of brass, copper and aluminium circles and that the defendant No.4 – National Watch Company situated at Ujjain is a sister concern of defendants No.1, 2 and 3. It was the case of the plaintiff that the defendant had come to the shop of the plaintiff and booked an order of 1000 kgs. brass circles and delivery was to be given at Wadhwan city. The order was booked by the defendant on 27th September, 1987 and as per the terms between the parties, the plaintiff had paid an advance of Rs.1,000/- on 3rd October, 1987. Accordingly, brass articles were to be delivered to the plaintiff at Wadhwan city and the rate of the brass circle was fixed at the rate of Rs.43/- per kg. and that the final rate was to be determined on checking the goods. The plaintiff had given Rs.1,000/- by way of advance to the defendants by a demand draft of the State Bank of Bikaner. It was alleged that instead of 1000 kgs. of brass circles, the defendants had supplied only 181.500 kgs. of brass circles under the bill dated 10th October, 1987 of Rs.8159.35 through Transport Corporation of India under the consignment dated 10th October, 1987 and that the goods were received by the plaintiff who had also paid an amount of Rs.103/- to the transporter. It was the case of the plaintiff that the defendant supplied 181.500 kgs. of brass circles but failed to supply the remaining amount hence, the defendant had to purchase brass circles at an increased rate of Rs.15/- per kg. The plaintiff accordingly issued a notice dated 30th December, 1987 which was duly received by the defendants claiming damages of an amount of Rs.24,650/- as the defendant had failed to supply the goods and also claimed interest at the rate of 18% per annum over the said amount. It was further the case of the plaintiff that he had to purchase goods from Jaipur Metal Rolling Mills on 5th January, 1988 and the bills for the same for an amount of Rs.22,349.23 and 11,779.25 were on record and prayed that the defendant be directed to pay Rs.49,729/- with interest at the rate of 18% per annum.
3. Initially the defendants failed to appear pursuant to summons issued by the court and hence an ex parte decree came to be passed. Thereafter, an application came to be moved for setting aside the ex parte decree which was ordered to be set aside on condition that the defendant pays costs at Rs.1,000/- to the plaintiff. Subsequently, the defendant filed written statement at Exhibit-60 alongwith various documents.
4. The trial court on the basis of the pleadings framed more than ten issues. Upon appreciation of the evidence on record, the trial court by a judgment and decree dated 13th October, 2000 dismissed the suit. The respondent - plaintiff carried the matter in appeal before the learned Additional District Judge and Fast Track Court – I, Presiding Officer, Surendranagar which came to be allowed by the impugned judgment and decree. Being aggrieved, the appellants–original defendants have preferred the present second appeal.
5. While admitting the appeal, this court, vide order dated 2nd July, 2009 had formulated the following two substantial questions of law:-
A) In the facts and circumstances of the case, whether the First Appellate Court was justified in setting aside the judgment and decree of the trial court without assigning proper reasons?
B) In the facts and circumstances of the case, whether the First Appellate Court was justified in passing the judgment and decree against the Appellant No.4 – National Watch Co., Ujjain?
6. Mr. Vasant Shah, learned advocate for the appellants vehemently assailed the impugned judgment and decree submitting that the learned appellate Judge has wrongly interpreted the evidence led before the trial court thereby rendering the impugned judgment and decree perverse. Inviting attention to the impugned judgment and decree passed by the lower appellate court, it was pointed out that the impugned judgment is bereft of any findings of fact. It was urged that the lower appellate court has not adverted to any of the facts on record nor has it independently appreciated the evidence on record. It was pointed out that instead of deciding the appeal on merits, what has weighed with the lower appellate court is the fact that the respondent – original plaintiff is a senior citizen. It was argued that the judgment and decree of the lower appellate court having been passed without assigning any reasons for setting aside the judgment and decree passed by the trial court, deserves to be quashed and set aside on this ground alone. It was submitted that it is the case of the plaintiff that initially an order for 500 kgs. brass circles had been placed and subsequently by a telegram, another order for 500 kgs. of brass circles had been placed. However, firstly the plaintiff has not proved that that he had placed an order for the additional 500 kgs. brass circles; nor has he produced any proof on record as regards sending the telegram; nor has he proved that he had purchased material from Jaipur at a higher rate. It was further submitted that the plaintiff has failed to prove that he had gone to Wadhwan. Hence, the question of jurisdiction of the trial court to decide the dispute also arises. It was submitted that the lower appellate court while reversing the judgment of the trial court has not assigned any reasons therefor. It was submitted that in the circumstances, the appellants are entitled to refund of the amount deposited by them before the trial court. It was submitted that it is an admitted fact that the Profit and Loss account of the plaintiff firm had not been produced. From the entire evidence produced on record, there is nothing to indicate that the defendant No.4 is a sister concern of defendants No.1, 2 and 3. It was submitted that assuming without admitting that the plaintiff had sent a telegram placing an order of additional 500 kgs. of brass circles; even then, unless the order was accepted by the defendant, there was no concluded contract, and that there is no evidence on record to show that the plaintiff had received any confirmation from the defendant. It was submitted that in the circumstances, the lower appellate court was not justified in decreeing the suit. It was further submitted that the appellants had initially delivered goods weighing 181.500 kgs. in respect of which there is documentary evidence on record and that the plaintiff had paid Rs.8159.35 in respect thereof. Subsequently, brass circles weighing 303.500 kgs. had been supplied to the plaintiff which is indicated by the Bill No.152 dated 27th November, 1987. The trial court, however, has not admitted Bill No.152 in evidence though it has made reference thereto in its judgment. It was submitted that thus, the defendants have supplied the goods in relation to the order placed by the plaintiff and that there is no default on the part of the defendants. It was submitted that in the circumstances, the trial court was justified in dismissing the suit and that the lower appellate court was not justified in reversing the judgment and decree passed by the trial court, more particularly, without assigning any reasons therefor.
7. Opposing the appeal, Mr. Kirtidev Dave, learned advocate appearing for the respondent – original plaintiff submitted that the plaintiff had led substantial evidence on record to indicate that he had placed an order for 1000 kgs. of brass circles which is evident from the correspondence of the plaintiff as well as the accounts of the plaintiff. The attention of the court was invited to the documents at Exhibit- 24, 25, 26, 27, 28, 29 and 30 to submit that an amount of Rs.1,000/- was paid by way of draft dated 1st October, 1987 of the State Bank of Bikaner. A further amount of Rs.8159.35 was paid and receipt thereof was obtained as per Exhibit-25. It was submitted that the plaintiff had paid Rs.10,000/- and had also paid further instalments of Rs.2,450/- per day from 22nd November, 1987 to 26th November, 1987 and Rs.1,400/- on 27th November, 1987 totalling to Rs.13,650/-. It was submitted that the plaintiff had accordingly paid Rs.23,650/- to the defendants alongwith advance of Rs.1,000/-, in all Rs.24,650/-. However, the defendants had not fully supplied the goods as per the order placed by the plaintiff, thereby committing breach of the agreement. It was submitted that under the circumstances, the plaintiff was entitled to recover the remaining amount paid by the plaintiff as well as the difference of the amount between the price agreed between the plaintiff and the defendants and the price that the plaintiff was required to pay for purchasing brass circles from a third party. According to the learned advocate the trial court has not properly read the evidence on record. It was submitted that on an earlier occasion, the suit was decreed ex parte against the defendants, which was set aside in an appeal preferred by the defendants. Subsequently, the defendants had filed written statement and a fresh trial had taken place. It was submitted that the trial court while passing the judgment and decree in question, has only considered the evidence which has been recorded subsequent to the setting aside of the ex parte decree whereas the evidence adduced by the plaintiff prior to the setting aside of the ex parte decree has not been taken into consideration. It was submitted that the evidence on record indicates that the defendants have supplied only 181.500 kgs. of brass circles and there is no evidence to indicate that there is any further supply of brass circles. The trial court was, therefore, not justified in holding that 500 kgs. of brass circles had been supplied to the plaintiff by the defendants. Inviting attention to the documentary evidence on record, it was submitted that the trial court has misconstrued the documentary evidence and has referred to the goods delivered by Jaipur Metal Rolling Mills which is the third party from whom the plaintiff had purchased the brass circles at an increased price as goods supplied by the defendants. It was further submitted that the trial court was also not justified in holding that the plaintiff had not proved that he had to pay an increased amount to Jaipur Metal Rolling Mills inasmuch as the bill and other documents evidencing payment at the rate of 56.50 per kg. of brass circles had been placed on record. The lower appellate court was, therefore, justified in setting aside the judgment and decree passed by the trial court and as such, there is no warrant for any interference by this court.
8. From the questions formulated by this court while admitting the appeal, what is firstly required to be considered by this court is as to whether the judgment of the lower appellate court suffers from the vice of being a non-reasoned order. A perusal of the impugned judgment passed by the lower appellate court shows that in the first paragraph the lower appellate court has briefly referred to the order which is subject matter of challenge before it. In the second and third paragraphs, the lower appellate court has recorded the submissions made by the learned advocate for the respondent - plaintiff more particularly that the plaintiff is aged 83 years and is a senior citizen. In the fourth paragraph, the lower appellate court has recorded the submissions of the learned advocate for the appellants - respondents. In the fifth paragraph, the court has made reference to the service of process etc. In the sixth paragraph, the court has formulated the points for determination namely, whether the judgment and decree passed by the trial court is not according to law and perverse and capricious and whether the court is required to interfere with the same. In the seventh paragraph, the trial court has referred to the findings on the points, viz., that the same are in the affirmative. The reasoning starts from the eighth paragraph wherein the learned Judge has made reference to the issues, stating that the same are discussed together. In paragraphs 9 to 13, the lower appellate court has referred to the submissions advanced by the learned advocate for the respondent - plaintiff. In paragraph 14, the lower appellate court has referred to the submissions of the learned advocate for the respondent No.2, that is, the appellant No.2 herein. In paragraph 15, the lower appellate court has recorded its findings as under:-
“15. After considering the lengthy arguments of both the parties and considering the facts and circumstances of the case and after perusing the record and proceedings of the learned trial court. It is very much crystal clear that the present respondent No.2 is not coming with clean hand before this court and it is also suppressed that present respondent No.2 who is the son of deceased Shankarlal and the transactions between the parties were also placed and proved before the learned trial court and in the present case the present appellant has sufficiently tried to convince this court and has also drawn the attention regarding the mis-appropriation of the evidence by the learned trial court. However, there were series of transactions were established and at the time of trial the say of the present appellant was also supported by the oral deposition of the present respondent No.2 i.e. Mr. Umeshbhai and at the time of cross examination of present respondent No.2 sufficient material was brought on record before the learned trial court. But the learned trial court has not properly appreciated the same and the evidence which was acceptable was not accepted and the present appellant was treated with discrimination only and in the present case process and notice were also served to the respondent No.1 & 4 also but was not have remained so negligent regarding the appearance before this court in the present case. However, deceased Shankarlal who has been expired but various transactions taken place between the parties were very well established before the learned trial judge and the present respondent Nos.1, 2 & 4 are also liable for the above transactions. Therefore, in my humble opinion in the interest of justice it is required to be analysed the evidence with proper care and caution. Therefore, present appellant cannot be deprived only because of the technicality and formalities and justice cannot be denied to the senior citizen person with discrimination. Therefore, in the present case I fully agree with the forceful submission made by L.A. Mrs. M.P. Karia for the appellant and I cannot accept the submission of L.A. Mr.
K.R. Sheth for the respondent No.2. The say of the appellant is acceptable and according to me in the present case there is substantial and material grounds involved. Therefore, it is required to be allowed and the judgment and decree passed by the learned trial court is not according to law and is perverse and capricious. Therefore, certain interference is also required thereof. In the light of the lengthy discussion, I answer point Nos.1 & 2 in the affirmative. In the interest of justice for the public at large I pass the following final order.”
9. Thereafter, the lower appellate court has passed the operative order allowing the appeal by quashing and setting aside the order passed by the trial court holding that the original plaintiff is entitled to the relief prayed for in paragraph 17 of the plaint alongwith interest at the rate of 9% per annum from the date of the suit till its realization.
10. Before discussing the findings recorded by the lower appellate court it may be germane to refer to the decision of the Supreme Court in the case of Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179, wherein it has been held thus:
“The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on ques-
tions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the ap- pellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The ap- pellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of gen- eral agreement with reasons given by the court, de- cision of which is under appeal, would ordinarily suffice (See Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to re- verse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the tri- al Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and sur- mises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das v. Narayani- bai, (1983) 1 SCC 35) The rule is — and it is nothing more than a rule of practice — that when there is con- flict of oral evidence of the parties on any matter in is- sue and the decision hinges upon the credibility of wit- nesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh, AIR 1951 SC 120) Secondly, while revers- ing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had dis- charged the duty expected of it.”
11. The findings recorded by the lower appellate court may be examined in the light of the aforesaid principles. As is apparent on a plain reading of the impugned judgment, the lower appellate court has neither adverted to the evidence on record nor has it appreciated the same independently. Not even a shred of the evidence adduced by the respective parties before the trial court has been discussed. The lower appellate court has recorded that the respondent No.2 has not come with clean hands before the court and has suppressed something. In the first place, it is difficult to understand as to what the lower appellate court means by the following sentence viz., “It is very much crystal clear that the present respondent No.2 is not coming with clean hand before this court and it is also suppressed that present respondent No.2 who is the son of deceased Shankarlal and the transactions between the parties were also placed and proved before the learned trial court and in the present case the present appellant has sufficiently tried to convince this court and has also drawn the attention regarding the mis-appropriation of the evidence by the learned trial court.” While recording the aforesaid findings, the lower appellate court has not adverted to the nature of the suppression on the part of the respondent No.2 (appellant No.2 herein) and as to how it has come to the conclusion that the said respondent has not come before the court with clean hands and as to what is the nature of evidence to which its attention was drawn to demonstrate that the trial court had failed to appreciate the evidence in proper perspective. While observing that series of transactions were established at the time of the trial which was also supported by the deposition of the respondent No.2, that is, Mr. Umeshbhai defendant No.2, the lower appellate court has not adverted to the relevant evidence to show how and which series of transactions were established and what was stated by Mr. Umeshbhai in his deposition in support thereof. The lower appellate court has further observed that the trial court has treated the appellant namely, the original plaintiff with discrimination only and that the various transactions taken place between the parties were very well established before the trial judge. Except for making vague observations that there was sufficient evidence brought on record before the trial court, the lower appellate court has not referred to any evidence on record nor has it assigned any reasons for arriving at the conclusion that the findings recorded by the trial court are perverse or contrary to the evidence on record. From the tenor of the impugned judgment, it appears that the lower appellate court has been highly influenced by the fact that the respondent - plaintiff is a senior citizen. The observations made by the lower appellate court that the present plaintiff cannot be deprived only because of the technicalities and formalities and justice cannot be denied to senior citizen person with discrimination are beyond comprehension. One fails to understand as to on what basis the said observations have been made by the lower appellate court. The lower appellate court, except for accepting what in its view was the forceful submission of the learned advocate for the appellant – original plaintiff, has not discussed anything to show as to how and why the findings recorded by the trial court were not acceptable to the lower appellate court.
12. Thus, the lower appellate court, in a very cryptic manner has reversed the judgment and decree passed by the trial court without so much as adverting to the findings recorded by the trial court and discussing as to how they were erroneous or contrary to the evidence on record. The judgment of the lower appellate court does not reflect its conscious application of mind and the findings, if at all it can be said that it has recorded any findings, are not supported by any reasons. The lower appellate court has neither referred to the findings recorded by the trial court nor assigned its own reasons for arriving at a different finding. Thus, the lower appellate court has failed to discharge the duty cast on it as a court of first appeal and as such the impugned judgment and decree cannot be sustained. However, as the lower appellate court has failed to record its independent findings after appreciating the evidence on record, the matter is required to be remitted to the lower appellate court for deciding the appeal afresh keeping in mind the aforesaid principles laid down by the Supreme Court.
13. Question No.1 is, therefore, answered accordingly, viz. the lower appellate court was not justified in setting aside the judgment and decree of the trial court without assigning proper reasons.
14. Insofar as the second question formulated by this court is concerned, the same would entail appreciation of the evidence on record. In the absence of the lower appellate court having recorded any findings in this regard, and more particularly since the court is inclined to remit the matter back to the lower appellate court, it does not deem it fit to answer the second question as the same would have some bearing on the final outcome of the first appeal.
15. In the light of the aforesaid discussion, the appeal succeeds and is accordingly allowed to the following extent. The impugned judgment and decree dated 29th January, 2008 passed by the learned Additional District Judge, Fast Track Court No.1, Surendranagar in Regular Civil Appeal No.23/2006 is hereby quashed and set aside. The matter is remitted back to the lower appellate court for hearing and deciding the first appeal afresh. The respective parties shall at the first instance appear before the lower appellate court on 26th March, 2012 and thereafter the matter shall proceed on such date as may be fixed by the said court. However, considering the fact that the civil suit came to be instituted in the year 1990, it is expected that the lower appellate court shall decide the appeal as early as possible, preferably within a period of six months from 26th March, 2012.
16. Registry is directed to forthwith send back the record and proceedings to the District Court, Surendranagar.
( Harsha Devani, J. ) hki