State of Madhya Pradesh vs Gulabdas Agrawal

Justice A.K. Shrivastava

This first appeal u/s 96 CPC has been filed by defendant-State of M.P. and its functionaries assailing the judgment and decree dated 13.5.1999 passed by learned Second Additional District Judge, Satna in Civil Suit No. 18B/1994 decreeing the plaintiff''s suit to the tune of Rs. 44,623.10 paise along with interest as mentioned in the impugned judgment. In brief the suit of plaintiff is that he is the proprietor of M/s. Naveen Art Press and carrying on the business of stationary. In the month of August, 1990 defendant No. 2, Executive Engineer (Building and Road) called the plaintiff in his office and in presence of Sub Divisional Officer No. 2 Shri R.B. Shrivastava, Divisional Accountant Shri P.N. Vishnoi and Head Clerk Shri Ram Sajeevan directed him to supply different type of stationary for the office of 2nd and 3rd defendants. He was also told that the bills should be given in the name of defendant No. 3 -Sub Divisional Officer No. 2 from where the payment will be made. The Executive Engineer further directed the plaintiff that on receiving the order slip of Shri Vishnoi and the Head Clerk, he should supply the stationary. Accordingly, the plaintiff started sending the stationary regularly and was also sending regular bills along with the slips which were being sent to him by defendant No. 3 on the basis of which the stationary was being supplied. The defendants were keeping the record of the stationary which was supplied by the plaintiff in the measurement book. Earlier also the plaintiff has supplied the stationary to the tune of Rs. 97,000/-and its payment was also made by the defendants.

It is the further case of the plaintiff that according to the directions of the Executive Engineer Mr. Tulsi, defendants No. 2 and 3 were sending the slips to the plaintiff to supply the stationary and accordingly the plaintiff supplied the stationary of Rs. 44,623.10/-from 29.9.1991 to 9.4.1992. The details of the bills are mentioned along with the Schedule annexed to the plaint from which it is clear that on which particular date of how much amount the stationary was supplied. The entire endorsement of the stationary goods for the aforesaid period and the bill number etc. are mentioned in the measurement book. The stationary which was being supplied by the plaintiff has been endorsed in the stock register also. The defendants 2 and 3 have used the stationary which was supplied by the plaintiff.

Despite plaintiff supplied the stationary of Rs. 44,623.10/-for the period 29.9.1991 to 9.4.1992, its payment has not been made. Eventually, he sent a notice u/s 80 CPC on 24.7.1992 which has been received by the defendants. In the notice, the plaintiff made demand of Rs. 46,529.70/-out of which the defendants have cleared the bill nos. 349, 448 and 449 after receiving the notice but still he has to recover a sum of Rs. 46,623.10/-. Thus, the plaintiff prayed for a decree of realization of Rs. 44,623.10/-and interest @ 6% p.a. which comes to Rs. 7,876.90/-in total Rs. 52,500/-.

A joint written statement has been filed by the defendants and denied the plaint averments. The stand of defendants is that defendant No. 3 never issued any order to the plaintiff to supply the stationary. The plaintiff has never supplied any stationary to the office of defendants 2 and 3. The factum of making payment of Rs. 17,000/-towards the bills of plaintiff has been denied by the defendants. According to them, the said payment made to him is not related to the present dispute. It has also been denied that the stationary which was being supplied by the plaintiff was being endorsed in the stock register nor any endorsement has been made in the measurement book. Hence, it has been prayed that the suit be dismissed.

The learned Trial Court framed necessary issues and after recording the evidence of the parties decreed the suit directing the defendants to make payment of Rs. 44,623.10/-along with 6% interest Rs. 7876.90/-, in total Rs. 52,500/-. The learned Trial Court further passed a decree directing the defendants to pay interest @ 6% p.a. from the date of filing of suit i.e. 30.6.1994. In this manner, this appeal has been filed by the defendants.

I have heard Shri Akhilesh Shukla, learned Dy. Govt. Advocate for the appellants and Shri Pranay Verma, Learned Counsel for respondent/plaintiff.

Having heard Learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed.

The learned Trial Court while deciding issues 1 and 2 has categorically held that plaintiff has proved its case. The oral evidence of plaintiff Gulabdas Agrawal is supported by the documentary evidence the bills as well as the slips which were being issued by defendant No. 3 to supply the stationary. The learned Trial Court while deciding issues 1 and 2 has rightly arrived at a finding that earlier also the plaintiff supplied the stationary and the payment was being made regularly to him.

Indeed, the case of plaintiff has been proved by Shri P.N. Vishnoi, Divisional Accountant of PWD who has been examined by the plaintiff as PW-2. This witness has categorically stated that from July 1990 to July 1993 he was serving as Divisional Accountant in the office of Executive Engineer, PWD (Building and Road) and presently he is serving in PWD Department at Katni. By corroborating the evidence of plaintiff this witness has categorically stated that the Executive Engineer Mr. Tulsi called this witness in his office and also called the Sub Divisional Officer PWD and the Head Clerk and directed them that whatever stationary is required to the office of defendants 2 and 3, the same may be purchased from the plaintiff''s shop and the payment of the bills shall be made by Sub Divisional Office No. 2, PWD, Satna office (defendant No. 2). Further he has stated that from time to time and according to the demand, the stationary was being purchased from the shop of the plaintiff. The order slips Ex. P/1 to P/9 were issued to the plaintiff to supply the stationary and these slips bear his signature. The order Ex. P/10 was issued by Ramsajeevan Sharma of the office of Sub Divisional Office No. 2 of PWD. This witness has categorically stated that he is acquainted with the handwriting and signature of Ramsajeevan because said person had worked with him. Now said Ramsajeevan Sharma has been retired. He has also proved order slips Ex. P/11 to P/18 which were issued by the office of defendants and all these documents bear his signature. Indeed, this witness has proved the entire case of plaintiff and has corroborated his evidence completely. The learned Trial Court in paras 8 and 9 has marshalled the evidence of plaintiff and his witnesses vis-a-vis to the evidence of Prem Shankar Shrivastava (DW-1) and came to hold that earlier also from the shop of plaintiff, stationary of Rs. 97,000/-was purchased by defendants 2 and 3 and its payment was also made. Thus, for the period in between 29.9.1991 to 9.4.1992, on the basis of documentary and oral evidence it is proved that plaintiff supplied the stationary of Rs. 44,623.10/-.

The interesting feature in the present case is that defendants'' own witness Prem Shankar Shrivastava (DW-1) has categorically admitted in paras 12, 13, 15, 17, 22 and 25 that despite the order was made by the learned Trial Court on 29.11.1995 to produce the measurement book of the year 1991-92 he has not brought the said measurement book nor the defendants ever produced the same. Thus, rightly adverse inference has been drawn by the learned Trial Court in this regard. No decision is required because Section 114 Illustration (g) of the Evidence Act is quite clear on this point. However, for the ready reference the decision of Supreme Court Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, is hereby relied upon. According to me, the best evidence which is in the power and possession of the defendants and which could throw sufficient light in the controversy has been deliberately suppressed by the defendants. The learned Trial Court has taken note of this aspect of the matter in paras 9 and 11.

In the present case, the defendants have not examined defendants 2 and 3 and looking to the facts and circumstances of the case as proved by the plaintiff, they should have come in the witness box to rebut the statement of plaintiff and its witness P.N. Vishnoi (PW-2). Indeed Mr. Vishnoi is the witness of defendants only because at the relevant time of time he was serving as Divisional Accountant in the office of defendant No. 2. Thus, the facts which were pleaded by the defendants 2 and 3 in their written statement and which are in their personal knowledge should have been proved by examining atleast any one of them by appearing in the witness box. It is well settled in law that facts which are in the knowledge of a party, he should have come and appear in the witness box and in this regard the Division Bench judgment of this Court Kasturchand Vs. Kapurchand 1975 JLJ 333 can be relied upon. I shall be failing in my duty not to place reliance upon the landmark decision of Privy Council Sardar Gurbakhsh Singh Vs. Gurdial Singh and another AIR 1927 Privy Council 230 wherein it has been held that the practice of not calling the party as witness with a view to force the other party to call him, and so suffer the discomfiture of having him treated as his, (other party''s) own witness is a bad and degrading practice. The true object to be achieved Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to cross-examination. This decision is still holding the field.

So far as the stand of the defendants that no written order was supplied to the plaintiff and, therefore, they are not bound to make any payment is concerned, suffice it to say that they are estopped from raising such a dispute for the simple reason that continuously for a long period by adopting the same practice to obtain the stationary from plaintiff by issuing order slips to him, the defendants 2 and 3 were receiving the stationary so supplied by the plaintiff and it was being used in the office of defendants. Earlier the payment of Rs. 97,000/-was also made to the plaintiff but for the period in between 29.9.1991 to 9.4.1992 the bills of plaintiff were not cleared. Thus, the doctrine of estoppel as envisaged u/s 115 of the Evidence Act is squarely applicable in the present case because the defendants 2 and 3 by their declaration and act intentionally allowed the plaintiff to believe that his bills shall be cleared upon supplying the stationary and by acting upon such belief, on receiving the order slips if the plaintiff had supplied the stationary, the defendants are estopped to deny the truth.

Having given my anxious and bestowed consideration to the reasonings assigned by learned Trial Court, I do not find any illegality in it and, therefore, the impugned judgment and decree passed by learned Trial Court cannot be set aside. Resultantly, this appeal fails and is hereby dismissed with costs. Counsel fee according to Schedule, if pre-certified.