Heard Mr. K. Agarwal, learned Senior counsel assisted by Mr. B. Das, learned counsel appearing for the appellant. Also heard Mr. U. Dutta, learned counsel appearing for the respondent.

2. This appeal under Section 96 of the Code of Civil Procedure is directed against the judgment and decree dated 25.07.2008 passed by the learned Civil Judge, Dibrugarh in M.S. No. 38/1997. The respondent was the plaintiff in the suit and the present appellants were arrayed as the defendants No. 1, 2 and 4 respectively in the said suit. The appellant- defendant No. 1 is the proprietress of the appellant No. 3 (defendant No.4) firm. The appellant-defendant No. 2 is the husband of appellant No. 1. The defendant No. 3 in the suit was alleged to be an employee of appellant No. 1 and 4, but he died during the pendency of the suit. Therefore, no decree was passed against the defendant No. 3. The respondent- plaintiff is a road transporter/ carrier of goods.

3. The case in brief is that the respondent had instituted the said suit for recovery of money from the appellant on account of goods delivered by the respondent owned by Colgate Palmolive (India) Ltd. to the appellants in good faith. However, the appellants did not retire the consignment notes in respect of four consignments in question from the concerned bank. Therefore, the consignor, namely, Colgate Palmolive (India) Ltd. adjusted the dues receivable by the respondent against the transportation charges.

4. The present appellants, who were defendant No. 1, 2 and 4 in the suit, had totally denied the receipt of goods. The defendant No. 3 (since deceased) had taken stands that he was working as a labourer with the appellant No. 1 and 3 and he had received the goods as a representative of the appellant. The following issues were framed in the case:

1. Whether the suit is barred by limitation?

2. Whether the court has jurisdiction to try the suit?

3. Whether the suit is bad for non-joinder and mis-joinder of defendant No. 2?

4. Whether the plaint is duly signed and verified by proper person?

5. Whether the four consignments of the products of proforma defendant No. 5 were entrusted with the plaintiff by the profroma defendant to be carried to and deliver to the defendant No. 4 at Dibrugarh on the condition that the delivery shall be effected by the defendant No. 4 on retiring the consignment receipt from bank on payment of value?

6. Whether the plaintiff effected the delivery at Dibrugarh without obtaining the consignment note?

7. Whether the defendant No. 4 failed to retire the documents on payment from bank and the defendant No. 5 realized the value of the suit consignment from the plaintiff?

8. Whether the plaintiff is entitled to get the decree as prayed for?

9. To what other relief/reliefs the parties are entitled?

5. In course of the trial, the respondent had examined three witnesses. The appellant examined two witnesses. The deceased defendant No. 3 had filed evidence on affidavit of two witnesses including himself. Although as per the impugned judgment, the learned trial court has recorded that the D.W. 3 and 4 were not cross-examined by the plaintiff, the trial records reveal that the D.W. 3 (i.e. defendant No. 3) expired on 08.07.2007 and D.W. 4 had not appeared before the court for his cross examination. As per the learned trial court’s record, prior to the death of the defendant No.3, due to the continued absence of the D.W. 3 and 4, by order dated 16.03.2007, their prayer for adjournment was rejected and the evidence of the defendant’s side was closed. On perusal of trial court’s record, it appears that the counsel for the defendant No. 3 vide petition No. 1335/2007 dated 20.07.2007 had duly informed the court about the death of defendant No. 3. However, this Court could not find any order by the learned trial court about the abetment of suit against the deceased defendant No. 3. However, in the impugned judgment, it is mentioned that the plaintiff had not taken any steps for substitution