The plaintiff, who asserts a fact, has the burden of proving it. In the absence of sufficient evidence, the court cannot grant relief.

Mr. Dinesh Mehta, J.

The appellant has filed the present appeal under Section 96 of the Code of Civil Procedure, oppugning the judgment and decree dated 25.07.1990, whereby the suit for recovery of money instituted by him, registered as Civil Original Suit No. 17/1980 has been dismissed.

2. The facts in brief, appertain to the present appeal are that the plaintiff-appellant filed a suit for recovery of a sum of Rs. 25,326/- with an assertion that defendant's firm - M/s Madhav Lal. Shrilal, a wholesaler dealer and a licensed commission agent to trade in tobacco orally agreed to purchase tobacco on commission basis, through his firm - M/s Bohra Brothers; also engaged in the business of purchase and sale of tobacco, having license to carry on the trade and storage of tobacco. As per the agreement, the plaintiff was required to procure tobacco on behalf of the defendant and after weighment and filling the same in the bags, was supposed to send the same to the defendant's village i.e. Jasma, for which the plaintiff was promised a commission of Rs. 5/- per mann (40 Kg), apart from the cost of tobacco, which was fixed as Rs. 75/- per mann.

3. As per the terms agreed, the plaintiff was also entitled to reimbursement of the cost of packing, transportation and interest at the rate of 1% on the due amount of the cost of tobacco. The plaintiff's case has been that after the aforesaid oral agreement, he started purchasing tobacco from various agriculturists/producers of tobacco of the area and sent the same to the defendant. The total quantity he purchased during relevant period was 21,000 Kgs or 210 quintal/525 'mann', valuing Rs. 39,375/-, apart from such cost, commission of Rs. 2625/- at the rate of Rs. 5/- per 'mann' was also payable to him.

4. The plaintiff filed a suit with an assertion that apart from the cost and commission above-mentioned, the defendant owes to him, a sum of Rs. 2625/- being commission, Rs. 2,000/- being cost of filling 500 bags at the rate of Rs. 4/- per bags, Rs. 250/- for the fare of Truck, Rs. 150/- for octroi, Rs. 400/- for Loading and unloading and remaining amount being cost of the Tobacco.

5. Plaintiff averred that after adjustment of the part amount the defendant had paid, in all a sum of Rs. 18,900/- is due from the defendant, whereupon interest @ 1% to the tune of Rs. 6,426/- become payable for delay in payment of the aforesaid amount. The plaintiff further averred that in response to the notice dated 25.02.1980 he had sent, vide registered post to the defendant, the defendant though agreed to purchase the tobacco through him, disputed the due amount, as according to him, he himself had paid the consideration to the purchasers/villagers.

6. In response to the plaint as filed by the plaintiff, the defendant filed a written statement denying the assertions made in the plaint, while completely refuting the appointment of the plaintiff as his commission agent and transacting any business through/with him.

7. The defendant's stance in the written statement has been that the plaintiff had filed the suit with a motive to harass the defendant, as a counter blast to the family dispute, with the defendant's sister, as a result of strained matrimony. The defendant asserted that either he himself or his son went to the area and purchased the tobacco at the relevant time in the truck(s) engaged by him, alongwith the bags to procure the tobacco. The tobacco so purchased was got weighed, packed in the bags and transported in such trucks to their place, in which process the plaintiff was never involved. It has been stated that the defendant had purchased 18,854 kgs of tobacco, out of which, 130 kg was however purchased from the plaintiff.

8. It has also been contended by the defendant that tobacco was a licensed commodity, for which, transactions could be carried on, only after obtaining the requisite permits namely T.P.-2 and T.P.-3, while maintaining that the commission business of Tobacco is impermissible in law.

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