Shri Surinder Pal vs Shri C. R. Verma

Justice Sanjay Karol, J.—This regular second appeal filed u/s 100 of the CPC was admitted on the following substantial question of law:-

(2) Whether both the courts below wrongly rejected the material, documentary evidence, Exhibit DW-3/A from consideration which, if taken into consideration, would have tilted scale in favour of the Defendant-Appellant? Whether both the courts below have wrongly drawn adverse inference against the Defendant-Appellant for his non-examination when there was more than sufficient evidence available on the record in proof of the defence put forth by the Defendant-Appellant?

Plaintiff''s civil suit for recovery of Rs. 99,000/-was decreed by the Court of Sub Judge Ist Class, Arki Camp at Nalagarh, District Solan, H.P. in terms of judgment and decree dated 24.2.2000. The same was assailed by defendant No.2 Surinder Pal and his Civil Appeal No.48-NL/13 of 2000 stands dismissed in terms of judgment and decree dated 15.11.2000 passed by Additional District Judge, Solan, Camp Court at Nalagarh, District Solan, H.P. Hence, the present appeal has been filed against concurrent findings of facts.

In the instant case, in terms of agreement dated 12.2.1996 (Ex.PW1/A), plaintiff Shri C.R. Verma agreed to purchase vehicle i.e. truck bearing registration No.HP-12-2939 for a total consideration of Rs. 2,05,000/-from defendants i.e. Shri Raj Pal (defendant No.1) and Shri Surinder Pal (defendant No.2) who claimed themselves to be owners of the vehicle. The agreement undisputedly was entered into between Shri C.R. Verma (plaintiff) and Shri Surinder Pal (defendant No.2). Certain dispute arose between the parties with regard to execution of the agreement. Thereafter, according to the plaintiff, the vehicle was forcibly taken away by the defendants from his possession. Whereas according to the defendants while the vehicle was in possession of the plaintiff it met with an accident as a result of which the same was severely damaged. According to the defendants, certain negotiations took place between the parties and fresh agreement dated 18.8.1996 (Ex.DW3/A) was executed between the parties whereby defendant No.2 agreed to pay a sum of Rs. 32,000/-to the plaintiff, whereas according to the plaintiff, defendant No.2 was liable to refund a sum of Rs. 99,000/-being the amount of advance as part of the sale consideration of the vehicle. Plaintiff also served notice dated 18.12.1996 (Ex.PW1/C) which was duly replied by the defendants on 1.1.1997 (Ex.PW1/D) but the dispute stood unsettled.

On 3rd February, 1997, plaintiff instituted a suit for recovery of a sum of Rs. 99,000/-, which was resisted by the defendants and on the basis of pleadings of the parties, trial Court framed the following issues:-

Issue No.1 Whether the plaintiff is entitled to recover suit amount from the defendant? ... OPP

Issue No.2 Relief.

Trial Court decreed the suit in toto and in terms of judgment and decree dated 24.2.2000, defendants were directed to pay a sum of Rs. 99,000/- alongwith interest @ 18% per annum. Trial Court specifically held that agreement (Ex.PW1/A) stood frustrated and could not be performed. With regard to agreement (Ex.DW3/A), trial Court held that same was not acted upon by the parties.

The lower appellate Court has upheld the aforesaid decision.

The fact that agreement dated 18.8.1996 (Ex.DW3/A) bears the signatures of plaintiff cannot be disputed by the plaintiff. In fact, plaintiff has tried to explain and justify the same in his replication by stating as under:-

This para of the written statement as alleged is wrong and denied. Neither any accident occurred when the truck was in possession of the plaintiff nor any amount as alleged had been spent and this is an afterthought concocted story to defeat the towards the plaintiff. (sic) The further allegation that in the Khangi Panchayat the plaintiff agreed to get Rs.32,000/- as full and final payment for the liability of the defendants is also wrong and denied. In fact, earlier settlement for Rs.80,000/- was effected, the document of which was executed and the same was written by the defendant-1 Rajpal by his own hand and when the plaintiff went to get the payment of Rs.80,000/- as per the settlement in the Khangi Panchayat, the defendant alongwith his persons surrounded the plaintiff and started threatening him and got his signature on a paper alleging that receipt will be prepared of the amount which the defendants will pay as per the decision of the persons collected there and some of the persons were under the influence of liquor and now it seems that the defendants might have executed some writing by diminishing their liability for payment to the plaintiff. Original para of the plaint is re-affirm.

(Emphasis supplied)

Significantly, in the plaint, plaintiff did not specifically take up the aforesaid plea. Even in the notice (Ex.PW1/C) this fact was not so stated. In notice (Ex.PW1/D), defendants took a specific stand that the matter stood settled by the Gram Panchayat, Duggri yet the plaintiff did not rebut the said allegation either by sending a notice or making an averment in the plaint/seeking a declaration that his signature had been forcibly obtained on a piece of paper by the defendants. Even during trial, defendants did not get a specific issue, with regard to the validity of the execution of agreement (Ex.DW3/A) framed by the trial Court. Also no report was lodged with the Panchayat or the Police.

The execution of the agreement (Ex.DW3/A) categorically stands proved by the defendants'' witnesses and more particularly Shri Hans Raj (DW-3) who in no certain term has deposed that the said agreement was got scribed by him in the presence of the parties. He has specifically denied the suggestion that the plaintiff appended his signatures thereupon under threat, coercion or pressure.

Consequently, in my considered view, courts below seriously erred in appreciating the evidence led by the parties which has resulted into travesty of justice. Courts also misdirected themselves in ignoring this cogent and material piece of evidence while decreeing the plaintiff''s suit.

In the given facts and circumstances, when plaintiff himself admits the signatures on agreement (Ex.DW3/A) and the same having been proved in accordance with law, by a relevant witness namely Shri Hans Raj (DW-3), it was not incumbent upon the defendants to have stepped into the witness box to depose with regard to the execution of the said agreement. Significantly, agreement (Ex.DW-3/A) is in supersession of all earlier agreements entered into between the parties. It categorically does not state that the amount incurred by the defendants for getting the vehicle repaired was to be deducted. It does not talk of any repairs at all. There is also nothing to show that parties had decided not to act upon the same. In this background, Courts below also mis-directed themselves in coming to the conclusion that defendants had only incurred an expenditure of Rs. 10,000/-and not Rs. 80,000/-for getting the vehicle repaired.

Agreement (Ex.DW3/A), in supersession of the earlier agreements, categorically records that only a sum of Rs. 32,000/-was liable to be paid to the plaintiff. In this background, the Courts below seriously erred in decreeing the plaintiff''s suit to the extent of Rs. 99,000/-. Defendants have to pay the amount agreed upon in terms of agreement (Ex.DW3/A). Consequently, appeal is partly allowed and the impugned judgment and decree dated 15.11. 2000 is modified to the extent that in stead of Rs. 99,000/-, plaintiff shall be entitled to a sum of Rs. 32,000/-alongwith interest as stands decreed in terms of judgment and decree passed by the Courts below.

In view of the aforesaid observations, the present appeal stands disposed of, so also the pending application(s), if any.