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2020 Supreme(HP) 304
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Vivek Singh Thakur, J.
Madhwa Nand Semwal - Appellant
Versus
Girish Gupta - Respondent
Regular Second Appeal No. 517 of 2007
Decided On : 09-06-2020
Seema K Guleria, Advocate, Romesh Verma, Advocate
The burden of proof lies with the party alleging a fact, and the failure to prove alleged facts can burden the plaintiff. Defects in filing affidavits in support of pleadings are curable.
Headnote:
Burden of Proof - Recovery of Payment - Code of Civil Procedure - Order 6 Rule 15(4), 1 CPC - G.M. Siddeshwar vs. Prasanna Kumar, (2013) 4 SCC 776 - T.M. Jacob vs. C. Poulose and others, (1999) 4 SCC 274 - Murarka Radbey Shyam Ram Kumar vs. Roop Singh Rathore, (1964) AIR SC 1545 - R.P. Moidutty vs. P.T. Kunju Mohammad and another, (2000) 1 SCC 481 - K.Laxmanan vs. Thekkayil Padmini and others, (2009) 1 SCC 354
Fact of the Case:
The plaintiff supplied sand to the defendant for construction work and claimed recovery of Rs.1,05,100. The defendant denied the agreement and payment, leading to a civil suit.
Finding of the Court:
The District Judge's judgment was set aside due to misconstruction, misreading, and misappreciation of evidence, resulting in perversity. The trial Court's judgment and decree were upheld, and the plaintiff was entitled to recover Rs.1,03,000 with costs.
Issues: The issues included the entitlement for recovery, estoppel, maintainability of the suit, filing against the proper person, concealment of material facts, and relief.
Ratio Decidendi: The court found that the defendant failed to prove the alleged facts and misconstrued the evidence, leading to a perversity in the judgment. The court also clarified the curability of defects in filing affidavits in support of pleadings.
Final Decision: The appeal was allowed, and the judgment and decree passed by the trial Court were upheld, entitling the plaintiff to recover Rs.1,03,000 with costs.
JUDGMENT
Vivek Singh Thakur, J. - This regular second appeal has been preferred against the judgment of reversal, whereby learned District Judge, Shimla, vide judgment dated 01.09.2007, passed in Civil Appeal No. 23-S/13 of 2007, titled as Greesh Gupta vs. Madhwa Nand Semwal, has set aside the judgment and decree dated 01.03.2007, passed in favour of the plaintiff (appellant herein) by learned Civil Judge (Junior Division), Court No.(V), Shimla, H.P., in Civil Suit No.8-1 of 2005, titled as Madhwa Nand Semwal vs. M/s Girish Gupta, wherein plaintiff was held entitled for recovery of Rs.1,03,000/- from defendant. Appellant is plaintiff and respondent is defendant in the Civil Suit. For convenience in this judgment they would be referred as plaintiff and defendant respectively.
2. On 12.12.2007, appeal was admitted on following substantial questions of law:-
"1. Whether the onus to prove a facts can be burdened on plaintiff/appellant when the said fact is alleged by defendant/respondent and the defendant has failed to prove the fact by leading any cogent evidence?
2. Whether even though the defendant/ respondent has failed to prove the fact that he used to make payments of material by producing any documentary or oral evidence on record can Ld. Court base its findings on sole oral submission/statement of defendant/ respondent?
3. Whether written statement, which has not been duly supported with an affidavit as required by law be given any credibility for the averments made therein and can Ld. Court base its findings on those averments which is only supported by oral testimony of the respondents?"
3. During hearing, on perusal of the record, it is found that learned District Judge has misconstrued, misread and ignored the oral as well as documentary evidence on record, which has resulted into perversity in the impugned judgment. Therefore, following question of law is also framed:-
4. Whether learned District Judge has misconstrued, misread, mis-appreciated and ignored the oral as well as documentary evidence on record, resulting into perversity in the impugned judgment?
4. It is the case of the appellant (hereinafter referred to as plaintiff) that on demand raised by the respondent (hereinafter referred to as defendant) he had supplied 81 trucks of sand for construction work undertaken by the defendant and the rate was fixed as Rs.2100/- per truck, including cost of the sand. Plaintiff has also placed on record 81 bills alleged to have been issued on behalf of the defendant for receipt of sand. According to the plaintiff, against total amount of Rs.1,70,100/-, defendant had paid only Rs.65,000/-and thus suit for recovery of remaining amount of Rs.1,05,100/-.
5. In written statement, it is denied that defendant had ever agreed for supply of sand @ Rs.2100/- per truck and defendant had always hired the vehicles on the basis of transportation charges and value of the goods, transported, was borne by the defendant and he had hired various vehicles at different times, but all those vehicles were hired on the basis of transportation cost and neither rate @ Rs.2100/- per truck was prevalent at relevant time nor there was any occasion for defendant to agree for the same. Even payment of Rs.65,000/- by defendant to the plaintiff has been denied in response to para-4 of the plaint and it was alleged that entire story put forth by the plaintiff is false. Receipt of notice served upon the defendant by the plaintiff has also been denied.
6. Replication to the written statement has also been filed by the plaintiff reasserting the claim put forth in the plaint.
7. On the basis of pleadings of the parties, following issues were framed by the trial Court on 04.07.2005, which read as under:-
"1) Whether the plaintiff is entitled for recovery of Rs.1,05,100/-, as prayed? OPP
2) Whether the plaintiff is estopped from filing the present suit, on account of the his own acts, deeds and conduct, as alleged? OPD
3) Whether the suit of the plaintiff is no
