Point in Issue :
Whether in the facts and circumstances of the case judgment to dismiss summary suit is legal and sustainable.

Rajesh H. Shukla, J.—The present appeals have been filed by the appellant original plaintiff under sec. 96 read with Order 41 of the Civil Procedure Code being aggrieved by the judgment and order passed by the City Civil Court, Ahmedabad, in Summary Civil Suits Nos. 3220 of 2000 and 3128 of 2000 dated 11.11.2009 on the grounds set out in the memo of appeals, inter alia, that the learned Judge has erred in not relying upon the documents produced and has failed to appreciate the material and evidence on record. It is also contended that the court below has erred in not giving exhibits to the documents produced including the agreement and has erred in holding that there was no contract of supervision between the appellant and the respondent.

2. Heard learned advocate Mr. Vivek Mapara for the appellant original plaintiff and learned advocate Mr. Tejas Satta for the respondent original defendant.

3. Learned advocate Mr. Mapara referred to the papers and the R&P in support of his submission and he has particularly referred to the deposition of the plaintiff Exh. 37 as well as exhs. 49 & 50 where the witnesses are examined. Learned advocate Mr. Mapara referred to the deposition of the plaintiff at Exh. 37 and referring to the same he has stated that the agreement has been admitted and therefore considering the material and evidence on record there is no dispute that the work of supervision was given to the appellant for which the amount was due and payable. He submitted that the court below has failed to appreciate this aspect. He has also referred to Exh. 45 which is filed in Summary Suit No. 3128 of 2000 with regard to the loan transaction and submitted in detail that the transaction has been established by the fact that cheque has been given.

4. Learned advocate Mr. Mapara submitted that the court below has committed an error in not exhibiting the agreement and what is required for exhibiting a document is that the original should be produced and the content should be proved with the evidence of the witnesses. He submitted that since the agreement has not been exhibited it has affected his right. However, he submitted that in another case admittedly the cheque has been issued and therefore the burden was cast upon the other side which has not been discharged. He submitted that it was not creditor’s payment for which the cheque was given and the presumption in favour of the plaintiff would arise. He therefore submitted that the present appeals may be admitted.

5. Learned advocate Mr. Satta for the respondent original defendant referred to the papers as well as the impugned judgment in detail and pointedly referred to the fact that in the suits which have been filed the agreement or contract has not been even exhibited. He submitted that there is an inconsistent stand with regard to the entire demand of the claim as, on one hand, it is claimed towards the supervision charge and on the other it has been claimed that it was borrowed and no evidence has been placed on record except the mere say of the plaintiff. He submitted that therefore the court below having considered the evidence in detail has rightly dismissed the suits and the present appeals may not be entertained. He pointedly referred to the observations made in this judgment to emphasise that though the documentary evidence has been produced casually no attempt has been made to exhibit the same according to the Indian Evidence Act. He further submitted that not only the plaintiff but the other two witnesses who have been examined at Exh. 49 & 50 have not supported the case of the plaintiff as discussed in detail by the court below.

6. Similarly, learned advocate Mr. Satta submitted that the amount which is being claimed as a monetary transaction by advancing the loan has not been reflected in the Income-tax Return which is also noted by the court below. He further submitted that there is not even a writing or a kachha slip for any such loan which has also been noted b