Darshan Kumar Mehra And Sons Wholesale Cloth vs M/S Mohd Alfat And Basharat Ahmad Mir And Others

Mohan Lal, J

This Civil 1st Appeal has been preferred by appellants against respondents, whereby, impugned judgment and decree dated 13-12-2012 passed by 2nd Addl. District Judge Srinagar in Civil Original Suit bearing No. 33 of 2007 titled Darshan Kumar Mehra V/s Mohd Altaf Basmar Ahmad Mir and Ors whereby suit of appellants/plaintiff has been dismissed. Being aggrieved of the impugned Judgment and decree, appellants has questioned it’s legality, propriety and correctness and has sought it’s setting aside/quashment on the following grounds:-

(i) that appellant as a wholesale cloth merchant conducting his business at Maharaj Ganj Srinagar being sole proprietor of the concern use to supply the cloth to respondents business concern under the name and style of M/S Mohd Altaf and Bashir Ahmad (retail and wholesale outlet) at Maharaj Ganj Srinagar and subsequently the business of the respondents got shifted to Sarai Bala Srinagar being run under the name and style of “M/S Mir Textiles Cloth Merchant” at Habib Traders Complex Sarai Bala Srinagar and on account of sale purchase transactions the accounts were settled by ending 31-03-2000 on which date respondents business concern acknowledged total liability to the tune of Rs. 3,45,466.33/- which amount was agreed to be liquidated in future;

(ii) that the appellants time and again approached the respondents for liquidation of the arrears and after hard efforts having been put in by the appellant, respondents paid amount to the tune of Rs. 2,11,780/-(w.e.f.6.05.2000 till 4-05-2007) leaving a balance of Rs. 1,33,666 payable in favour of appellant, but despite number of demands made by the appellants, no payment on account of liquidation of arrears was made past 04.05.2007 as a consequence of which notice of demand through Advocate dated 01.06.2007 was issued in the name of respondents for liquidation of the arrears together with interest, but despite umpteen demands, needful was not done by the respondents, whereby, plaintiff was constrained to file suit for recovery of arrears of Rs. 2,50000/- (principle amount 1,33,666.33 + interest Rs. 1,15,783);

(iii) that on institution of suit respondents were summoned but despite receiving summons they choose not to remain present for contesting the suit, as a consequence, ex-parte proceedings were initiated against respondents on 1.11.2007 and 26.11.2008;

(iv) that the appellants on the strength of order passed by the trial court got statements of two of his witnesses namely, Naresh Kumar Mehra & Dalip Kumar Jain recorded in support of the averments made in the plaint in regard to entitlement of appellants to the recovery of suit amount from the respondents, but on the same day counsel for the appellants inadvertently and out of bona-fide error made statement before the trial court for closure of appellant’s evidence least having in his mind that the statement of plaintiff and his own witness has not been recorded, whereby, the trial court after passing the order of closure of evidence on 08-02-2012 posted the matter for arguments on 13-02-2012 and proceeded to decide the suit vide it’s judgment/decree dated 13.2.2012 directing dismissal of the suit for want of getting statement of plaintiff recorded as his own witness;

(v) that the plaintiff was not present personally on 08-02-2012, the matter was posted for final arguments on 13-02-2012 on which date counsel for appellants could not cause his appearance on account of serious health condition of his sister, plaintiff was out of station to attend condolence meeting at Amritsar on 13-12-2012, Mushi of the counsel for plaintiff namely Noor Mohd requested the trial Judge to defer the matter on account of fact that counsel was engaged with ailment of his sister who was on death bed, instead of granting the request the trial Judge asked the Munshi to get the counsel who presented himself on 14.12.2012 and was informed about decision of suit without having the counsel for appellant;

(vi) that the judgment and decree passed by the trial court dismissing the suit of the appellant/plaintiff is not in accordance with law as he was required to follow the procedure to provide opportunity of being heard to counsel for appellant, the impugned judgment demonstrates that the trial Judge has committed a grave error of law in not analyzing the evidence recorded on behalf of appellant by ignoring the contents of statements the trial court has dismissed the suit in slip shod manner without application of judicial mind;

(vii) that no opportunity was provided to the appellant or his counsel to make application seeking permission to get the statement of appellant/plaintiff recorded as his own witness, the appellant and his counsel on that particular day were prevented by sufficient cause from their appearance and in the event judgment and decree is not set aside it would result in greatest injury to the appellant and miscarriage of justice.

In terms of the order of this court dated 14-12-2012 respondents though served through publication, choose not to appear and contest the appeal and were therefore set ex-parte.

Ld. Counsel for appellant has vehemently sought the setting aside of impugned judgment and decree dated 13-02-2012 passed by the Ld. 2nd Addl. District Judge Srinagar by projecting arguments, that the ex-parte decree impugned against defendants dismissing the recovery suit of appellant/plaintiff has been passed without hearing and in absence of plaintiff’s counsel, without allowing plaintiff’s counsel to file application under Order 18 Rule 3 CPC and without considering the evidence led by the plaintiff which was already on record and was not discussed whether it was sufficient to direct dismissal of the suit. To support his arguments, Ld. Counsel has relied upon the judgments reported in (i) AIR 1981 SC 2235[Pandurang Jivaji Apte—Appellant Versus Ramchandra Gangadhar Ashtekar (dead) by LRs and Ors.—Respondents]& (ii) AIR 1984 Bombay 340 [Nathulal Gangabaks Khandelwal and others, Petitioners V. Smt. Nandubai and others, Respondents].

I have heard Ld. Counsel for appellant, perused the averments of Civil 1st Appeal and gone through the case law relied upon by Ld. Counsel for appellant. It is apt to reiterate here, that the Ld. Trial Court of 2nd Addl. District Judge Srinagar vide impugned judgment dated 13-02-2012 dismissed the recovery suit of the appellant/plaintiff for an amount of Rs. 2.50 lacs against respondents/defendants on the ground that appellants/ plaintiff has not stood in the witness box and inference can be drawn that plaintiff has no case to state before the court. In AIR 1981 SC 2235[Pandurang Jivaji Apte—Appellant Versus Ramchandra Gangadhar Ashtekar (dead) by LRs and Ors.— Respondents] relied by Ld. Counsel for appellant, Hon’ble Supreme Court held that question of drawing adverse inference against a party for his failure to appear in the court would arise only when there is no evidence on record. AIR 1984 Bombay 340 [Nathulal Gangabaks Khandelwal and others, Petitioners V. Smt. Nandubai and others, Respondents]. relied by Ld. Counsel for appellant, Division Bench of Bombay High Court in a conviction Suit held, that application for eviction by Landlord cannot be rejected merely on the ground that landlord had not appeared as his own witness. It is unambiguously reiterated here, that based on the proposition of law laid down in the judgments (Supra), this court as appellate court can exercise powers vested in it to rehear the appeal as provided u/s 107 of CPC to set aside the impugned judgment and decree. Keeping in view the sequence of events happened in the court of 2nd Addl. District Judge Srinagar before the passing of impugned judgment and decree it transpires that counsel Mr. Noor Mohd appearing before the trial court had noticed that on 10-02-2012 in his office chamber while examining the brief that the statement of appellant/plaintiff as his own witness has not been recorded, as such, he intended to apprise the trial court about the bona-fide mistake, but on the next date of hearing on 13.02.2012 on account of sudden ailment of his sister adjournment was sought by his clerk and the matter was posted on 14.02.2012, but the trial judge informed the counsel that impugned judgment has been announced on 13-02-2012. From the above, it appears, that no chance was provided to the counsel for appellant to make submission for allowing him to get the statement of plaintiff recorded. A separate motion was filed before the trial court in terms of Order 18 Rule 3A r/w Order 14 Rule 27 for grant of permission to get the statement of appellant/plaintiff recorded. The memo of appeal is accompanied by personal affidavit of Mr. Noor Mohd Advocate appearing on behalf of appellant which makes a prima facie case in favour of appellant. The trial court had already examined two witnesses of the appellant/plaintiff namely, Naresh Kumar Mehra & Dalip Kumar Jain, and therefore, the trial court in view of ratio decidendi of the judgments (Supra) relied by Ld. Counsel for appellant, was legally incorrect to dismiss the suit of plaintiff for the reasons that statement of plaintiff/appellant was not recorded.

Having regard to nature of controversy in the manner in which suit of appellant has been dismissed by the trial court, I allow the appeal, set aside the impugned judgment and decree dated 13-02-2012 passed in COS file No. 33/Numbri dated 12-09-2007 rendered by the court of Ld. 2nd Addl. District Judge Srinagar and by restoring the suit to its original file, remand the case to the trial court for retrial and deciding the same afresh on merits after granting appellant/plaintiff opportunity to get the statement of plaintiff/appellant recorded in accordance with law. Appellants to appear before the trial court on 08-12-2022. Copy of this order be forthwith provided to the trial court for information and compliance. Record of the trial court be sent back forthwith.

Disposed off accordingly.