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Judgment
Prakash Tatia, J.—This is an appeal against the judgment and decree dated 2.2.1982 passed in Civil Original Suit No. 13/74 by the Court of District Judge, Bikaner.
Heard learned Counsel for the parties and perused the record. Learned Counsel for the appellant provided the photostat copies of the statements of the witnesses, which were taken on record with the consent of learned Counsel for the respondent.
Brief facts of the case are that plaintiff filed the suit for recovery of Rs. 42,870/-and interest against the defendants on the ground that in pursuance of the contract given to the plaintiff, the plaintiff completed the work, but the defendants have not made payment of Rs. 17,000/-and also have not paid security amount of Rs. 23,070/-. Therefore, defendant claimed above amount alongwith interest of Rs. 2800/-. Total amount, therefore, comes to Rs. 42,870/-.
Defendants, in their reply, admitted that work was given to the plaintiff, but the plaintiff has not completed the work awarded to the plaintiff and he left the work in between. Therefore, the defendants, by incurring expenses, completed the work for which the defendants are entitled for the cost of the work from the plaintiff and are also entitled for penalty @ Rs. 10% i.e., Rs. 20,310/-for first contract and Rs. 10,500/-for the second contract. The defendants also submitted that defendants incurred expenses of Rs. 3,438/-for completion of the work. Therefore, the defendants submitted counter claim of Rs. 21,742/-by amending the written statement on 7.1.1977.
The trial Court framed the issues. The plaintiff gave statement on oath before the trial Court as PW-1 and produced witnesses PW-2 Ranveer Singh, PW-2 Nandram and PW-3 Sriram whereas defendants produced DW-1 Shobhachand, DW-2 Kalayan Mal and DW-3 Rawat Singh in documentary evidence. The plaintiff produced registration certificate Ex.1, notice Ex.2, postal receipts Ex.3 to 6, acknowledgment receipts 7 to 10 and letters Ex.11 to 14, entries in the MB Ex.14A, 17 and 18 and the defendants produced letter Ex.D31. The trial Court after hearing the parties decreed the suit of the plaintiff for Rs. 31,713/-with interest @ 6% per annum.
The appellant has challenged the judgment and decree of the trial Court. The learned Counsel for the appellant vehemently submitted that it was the duty of the plaintiff-respondent to prove by positive evidence that he completed the work, which was awarded by the defendant-appellant to the plaintiff and he should have produced the documentary evidence in proof of his case. It is also submitted that the plaintiff even did not produce any expert to prove the work, after getting the measurement of the work. Therefore, the suit of the plaintiff should have been dismissed only on this ground. It is also submitted that in view of Ex.17 and 18 it is clear that whatever work was done by the plaintiff was recorded in the measurement book in presence of the plaintiff himself and plaintiff accepted the correctness of the measurement given in the measurement book. Therefore, the defendants proved that plaintiff has not completed the work awarded to him. Therefore, the plaintiff was not entitled for the relief as claimed for and, in fact, the defendants had to complete the work left by the plaintiff by incurring expenditure. In view of the condition of the contract, the defendants are entitled for the penalty amount and the expenditure incurred, from the plaintiff.
I perused the record and the evidence. The trial Court found that Ex.17 and 18, which were relied upon by learned counsel for the appellant, were interpolated. This interpolation was admitted by the witnesses of the defendants and they could not explain under which circumstance the above word of "final bill" in MB Ex.17 was struck off and it was written in read ink as "incomplete". The PW-1 witness of the defendant himself in cross-examination stated that in Ex.17 at page No. 51 the writing of "incomplete" was inserted in different inks, when it was inserted he has no knowledge. In the same way in Ex.18 there is an interpolation by striking off the word "final bill" and by writing "incomplete", which is also in different ink for which also the witness could not disclose the circumstances in which it was done. A bare persual of the document, it is clear that when document is written in one ink and the material portion has been changed by different ink then normally it can be presumed that there is a difference of time in two writings. The witness of the defendants has not stated that the entry by red ink was made prior to the filing of the MB books Ex.17 and 18. Therefore, this document is not safe to be relied upon to prove a fact.
I also, perused the statements of the witnesses produced by the plaintiff as well as defendant. Plaintiff gave letter Ex.13 to the defendant on 23rd May, 1973 stating therein that he has already completed the work. Ex.17 and 18 bears the dates 16th May, 1973 and, thereafter 28th March, 1974. It is stated by the defendants that last measurement was taken on 28th March, 1974. When the plaintiff already intimated the defendants that he has completed the work before 23rd May, 1973 then what was the reason for the defendants for not denying this allegation of the plaintiff by giving a letter to the plaintiff. No letter has been placed on record by the defendants to show that they ever protested against the claim of the plaintiff of completion of work. The measurement dated 28th March, 1974 in Ex.17 and 18 are subsequent to the dispute raised by the plaintiff and when the documents are not worth reliance then there remains evidence of the plaintiff without there being sufficient rebuttal from the defendants.
So far as contention of learned counsel for the appellant that the plaintiff should have proved the fact by producing documentary evidence is concerned, it is suffice to say that in the Government contract matter and particularly in this case, it is an admitted case that contract was awarded to the plaintiff. He started the work. The measurement was taken by the officers of the appellant-department. The measurement books were kept by the appellant-department. The appellant-department either to rely upon the documents, which were in their power and possession and if failed to convince the court with respect to the correctness of the document then after leading evidence, the defendants cannot say in appeal that the plaintiff should have produced the documentary evidence to prove his case, particularly, in view of the fact that it is not the case of the defendants that the record was kept by the plaintiff and defendants both. If the plaintiff relied upon the document kept by the defendants and documents were placed on record by both the parties then the court may draw an inference in accordance with law. It is not even the case of the defendants that plaintiff was having the copies of the record of MB etc. nor it was summoned from the plaintiff nor he was asked to produce the documents. Therefore, it was not a case wherein any adverse inference could have been drawn against the plaintiff, but this is a case where the adverse inference can be drawn against the defendants only, who have not kept the documents in order or failed to produce the complete record before the Court.
Therefore, in view of the above discussion. I do not find any illegality in the judgment and decree of the trial Court. Therefore, the appeal of the appellant is dismissed having no force.