M/s Yuvraj Motor and Others vs Vandana Sood

L.N. Mittal, J.—Defendants M/s Yuvraj Motor and its partners have filed the instant second appeal from order.

Respondent - plaintiff Vandana Sood filed suit against defendants/appellants alleging that the defendants borrowed Rs 3,60,000/-from the plaintiff as loan on interest @ 18% per annum and executed receipt for the same. Defendants continued to pay interest on the loan amount till 30.9.2002 and had been issuing certificates of income tax deducted at source (TDS) in Form No. 16-A. However, thereafter the defendants neither paid interest amount nor returned the principal loan amount inspite of demands. Accordingly, the plaintiff sought recovery of Rs 3,60,000/- as principal amount and Rs 1,08,000/- as interest thereon since 30.9.2002 till 31.5.2004 i.e. till before the filing of suit.

Defendants in the written statement pleaded that they have already returned the amount due against them and now nothing is due from them. Suit was also alleged to be time barred. Some other objections were also raised. It was denied that defendant no. 2 had approached the plaintiff for loan. On the other hand, the plaintiff approached the defendants to get her money financed in the market. The plaintiff was not entitled to interest at such high rate. TDS certificates are false documents. Various other pleas were also raised.

Learned Civil Judge (Junior Division) Ludhiana vide judgment and decree dated 28.2.2008 dismissed the plaintiff''s suit. In first appeal preferred by plaintiff, she also moved application for additional evidence to prove documents Ex. P4 income tax return and Ex. P5 and Ex. P6, TDS certificates allegedly issued by defendants by summoning concerned income tax official. Learned first appellate court i.e. learned Additional District Judge, Ludhiana vide impugned judgment dated 29.1.2010 allowed plaintiff''s application for additional evidence and remanded the suit to trial court for deciding the same afresh. Feeling aggrieved, defendants have filed the instant second appeal.

I have heard learned counsel for the parties and perused the case file.

Counsel for the appellants vehemently contended that in view of Order 41 Rule 28 of the CPC (in short, CPC), the appellate court after allowing additional evidence should have recorded additional evidence itself or should have required trial court to record the same but should not have remanded the suit to trial court for fresh decision. It was also contended that the documents now sought to be proved were already in the knowledge of the plaintiff and therefore, there was no sufficient ground for allowing proposed additional evidence.

On the other hand, counsel for respondent-plaintiff contended that the documents have already been pleaded and also adduced in evidence but the same could not be formally proved by examining the concerned income tax official and therefore, proposed additional evidence has been rightly allowed by the lower appellate court.

I have carefully considered the rival contentions. It is unfortunate that counsel for the parties are not aware if any objection was raised to mode of proof of the aforesaid documents when the same were accepted in evidence in the trial court. However, be that as it may, plaintiff has pleaded the aforesaid documents in the plaint and has also produced the same in evidence in the trial court. The same were, however, not formally proved by examining concerned income tax official. The trial court held that the aforesaid documents have not been proved in accordance with law. In these circumstances, the plaintiff was left with no option but to prove the same by way of additional evidence by summoning concerned income tax official. The documents are not likely to be fabricated as documents Ex. P5 and Ex. P6 purport to have been issued by defendants/appellants themselves and would be forming part of the record of income tax authorities. Similarly, income tax return Ex. P4 would also be in the record of the income tax authorities. In addition to it, the defendants shall get opportunity to lead evidence in rebuttal of the aforesaid additional evidence of the plaintiff.

Lower appellate court has observed that these documents are required to be proved for proper decision of the case going to the root of the case. Additional evidence in first appeal can be allowed under Order 41 Rule 27 CPC if the court requires proposed additional evidence to enable it to pronounce judgment or for any other substantial cause. However, it has to be observed that the plaintiff had to be subjected to costs for granting permission to lead additional evidence because the plaintiff failed to produce the proposed additional evidence in the trial court at appropriate stage.

As regards necessity of remanding the suit, since the proposed additional evidence goes to the root of the case, it was rightly thought proper by the lower appellate court to remand the suit to the trial court for fresh decision in accordance with law because the proposed additional evidence may even change the fate of the suit. Moreover, opportunity is also to be granted to the defendants to lead evidence in rebuttal of the aforesaid additional evidence of the plaintiff.

In view of the aforesaid reasons, I find no merit in the instant second appeal except that the plaintiff has to be subjected to cost for proposed additional evidence. Impugned judgment of the lower appellate court does not warrant interference except to this extent. Accordingly, the instant appeal is dismissed except that the plaintiff-respondent shall pay Rs 5000/- as costs precedent for leading proposed additional evidence. The defendants shall be given opportunity to lead evidence in rebuttal thereof.