(Prayer:Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 29.09.1997 made in A.S.No.177 of 1994 on the file of the Subordinate Court, Tuticorin, reversing the Judgment and decree dated 24.03.1994, made in O.S.No.358 of 1993 on the file of the Principal District Munsif Court, Tuticorin.)
1. This Second Appeal has been filed against the judgment and decree dated 29.09.1997 made in A.S.No.177 of 1994 on the file of the Subordinate Court, Tuticorin, reversing the Judgment and decree dated 24.03.1994, made in O.S.No.358 of 1993 on the file of the Principal District Munsif Court, Tuticorin.
2. The appellant is the plaintiff, who succeeded in the Trial Court, but lost in the first appellate Court. The respondent is the defendant.
3. Facts of the case:-
(i) The appellant filed suit in O.S.No.358 of 1993, before the Principal District Munsif Court, Tuticorin, for recovery of a sum of Rs.2,840/- together with interest for the goods sold and delivered. According to the appellant, the respondent on 06.08.1990 purchased two Dunlop Tyres and two Tubes for a total sum of Rs.2,840/- on credit basis as per Bill No.2413. The respondent paid a sum of Rs.500/- on 20.08.1990 and did not pay the balance amount. Therefore, the appellant issued a notice dated 04.08.1993 demanding the amount and the same was returned with an endorsement that as the respondent did not receive the same . Hence, the appellant has filed the suit for recovery of money together with interest at 18% p.a.
(ii) The respondent filed written statement and stated that he did not purchase any goods from the appellant on 06.08.1990 for a sum of Rs.2,840/- and did not pay Rs.500/- on 20.08.1990. The respondent did not receive any notice. The appellant must produce the Ledger and Day Book for the month of August 1990.
4. Based on the pleadings, the learned Principal District Munsif, Tuticorin, framed necessary issues and additional issues.
5. Before the Trial Court, one Kuttalingam, Accountant of the appellant, was examined as P.W.1 and one Ponraj, driver of the respondent was examined as P.W.2 and marked five documents as Exs.A.1 to A.5. On behalf of the respondent, the respondent examined himself as D.W.1 and he did not mark any document.
6. The learned Principal District Munsif, Tuticorin, considering the pleadings, oral and documentary evidence and arguments of the learned counsel appearing for the parties, decreed the suit, accepting Exs.A.1, A.2, A.4 and A.5 and evidence of P.W.2, driver of the respondent.
7. Against the said judgment and decree, dated 24.03.1994, the respondent has filed A.S.No.177 of 1994 before the Subordinate Court, Tuticorin.
8. The learned Subordinate Judge, Tuticorin, framed necessary points for consideration.
9. The learned Subordinate Judge considering the pleadings, oral and documentary evidence and the judgment and decree of the Trial Court, allowed the appeal holding that the appellant failed to prove that P.W.2 was working as Driver of the respondent at the time of purchase and that the respondent has already sold the car in the year 1989 and dismissed the suit.
10. Against the said judgment and decree, dated 29.09.1997, the present second appeal is filed.
11. At the time of admitting the second appeal, this Court framed the following substantial question of law:
When the day book and the ledger (Ex.A4 and Ex.A5) maintained in the usual course of business and proved by P.W.1, the accountant who wrote it, has not the lower appellate court committed an illegality in reversing the judgment of the trial court by not legally evaluating Ex.A4 and Ex.A5?
12. The learned counsel for the appellant contended that the appellant has proved the purchase of two Dunlop Tyres and two Tubes by the respondent on 06.08.1990 on credit basis by producing the Bill Ex.A.1, wherein P.W.2, the Driver of the respondent signed in receipt of the said goods. The appellant also produced and proved the Ledger and Day Book Exs.A.4 and A.5 through his Accountant P.W.1, who marked the same. The lower appellate Court erred in law in not accepting the same. The lower appellate Court erred in holding that the respondent sold the Car in the year 1989 itself and therefore, he could not produce the Trip sheet. Even, on earlier occasion, he had purchased the goods on credit basis and paid the amount in four instalments, as reflected in Exs.A.4 and A.5.
13. Per contra, the learned counsel for the respondent contended that the appellant failed to prove that P.W.2 was the driver on 06.08.1990 and the lower appellate Court has rightly accepted the contention of the respondent that he has sold the car in the year 1989 itself. The lower appellate Court has given cogent and valid reason for allowing the appeal.
14. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel on either side.
15. The lower appellate Court allowed the appeal on the ground that the respondent sold the car in the year 1989 itself and therefore, he was not using the car as Taxi in the year 1990. The lower appellate Court failed to see that the respondent has not produced any document to show that he sold the car in the year 1989 itself. The lower appellate Court wrongly cast the burden on the appellant to prove that the respondent was the owner of the car on 06.08.1990, by summoning the document through Regional Transport Office. On the other hand, it is for the respondent to summon the document from the Regional Transport Officer to prove that he sold the car in the year 1989 itself. The appellant has proved that the respondent purchased two Dunlop Tyres and two Tubes on credit basis on 06.08.1990 by producing Exs.A.4 and A.5. From Exs.A.4 and A.5, it is seen that the appellant has purchased on earlier occasion also on credit basis and repaid the same by four instalments.
16. In view of the above reasons, the lower appellate Court has committed an error in law in allowing the appeal and dismissing the suit without properly appreciating Exs.A.4 and A.5. The substantial question of law is answered in favour of the appellant.
17. In the result, the second appeal is allowed. The judgment and decree dated 29.09.1997, made in A.S.No.177 of 1994, is set aside and the judgment and decree, dated 24.03.1994, made in O.S.No.358 of 1993, is confirmed. No costs.