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Firm Sohan Lal Kishan Lal Vs. Firm Talwaria Bros. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 363 of 1973
Judge
Reported in1984WLN(UC)212
AppellantFirm Sohan Lal Kishan Lal
RespondentFirm Talwaria Bros.
DispositionAppeal dismissed
Cases ReferredRamchandra and Ors v. Ramalingam and Ors. A.I.R.
Excerpt:
evidence act - late production of document--receipt mentioned but not produced along with written statement--receipt produced & admitted in evidence--held, no presumption can be drawn on account of late production of receipt & concurrent finding not to be disturbed;once the document has been produced and admitted in evidence, no presumption should be raised from its late production. more over, the mere circumstances of a bit late production of receipt ex. a 2 is not a serious matter to disbelieve the evidence of the defendant. a concurrent finding cannot be disturbed merely by the non production of the receipt along with the written statement.;(b) civil procedure code - reply to notice--necessity of--defendant not replying to notice by plaintiff--receipt taken as genuine document..........dismissed. hence this second appeal. i have heard the learned counsel for the parties.3. mr. mehta, learned counsel appearing for the plaintiff-appellant raised two contentions before me which according to him were not properly appreciated and taken into consideration by the courts below.4. the first contention is that receipts ex. a2 was not filed by the defendant along with the written statement. in the written statement, though the existence of the receipt was alleged, it was not filed for the reason that it was not readily available. it was argued by mr. mehta that had this receipt been in existence at the time of filing the written statement, it must have been filed along with it. the non-production of receipt ex. a2 along with the filing of the written statement is a major.....
Judgment:

S.S. Byas, J.

1. This is plaintiff's civil second appeal who lost its suit for the recovery of a sum of Rs. 4400/- in both the lower courts.

2. The plaintiff which is a registered partnership firm, instituted a suit for the recovery of a sum of Rs 4400/- against the defendent firm in the Court of Civil Judge, Ganganagar. According to the averments made in the plaint, certain transactions took place between the parties as a result of which a sum of Rs. 4360.42p. stood due against the defendant firm. A notice was issued to the defendant firm calling upon it to mike the payment of the aforesaid amount, The attempt proved abortive. The plaintiff-firm, therefore, instituted a suit for the recovery of a sum of Rs. 4360.42p. as principal and Rs. 39.58p as interest thereon. The total claim was for the amount of 400/-. The suit was constested by the defendent firm. The main defence taken by it was that the defendent had made a payment of Rs. 4360.86 p. to the plaintiff on February 20, 1968 and obtained receipt Ex. A2. The trial court held that the payment as pleaded by the defendant has been made to the plaintiff and receipt Ex A 2 was issued to the defendant by the plaintiff in lieu of the aforesaid payment. The suit was, therefore, dismissed. The plaintiff went in apple which was heard by the learned Additional District Judge. Ganganagar. It was contended before him by the plaintiff that receipt Ex. A2 was not genuine and no payment as alleged by the defendant has been made. The learned Additional District Judge concurred with the finding of the trial court. He also held that receipt Ex. A2 was genuine document executed by or on behalf of the plaintiff firm The payment of Rs. 46086 p. was made under the aforesaid receipt to the plaintiff by the defendant. The appeal was consequently dismissed. Hence this second appeal. I have heard the learned Counsel for the parties.

3. Mr. Mehta, learned Counsel appearing for the plaintiff-appellant raised two contentions before me which according to him were not properly appreciated and taken into consideration by the courts below.

4. The first contention is that receipts Ex. A2 was not filed by the defendant along with the written statement. In the written statement, though the existence of the receipt was alleged, it was not filed for the reason that it was not readily available. It was argued by Mr. Mehta that had this receipt been in existence at the time of filing the written statement, it must have been filed along with it. The non-production of receipt Ex. A2 along with the filing of the written statement is a major circumstance to make it a suspicious document.

5. A perusal of the record of the trial court shows that receipt Ex. A2 was submitted on May 31, 1968 when the issues were framed. No objection by the plaintiff was taken that the receipt EX. A2 should not be allowed to be produced. Since no such objection was taken in the trial court and receipt Ex. A2 was admitted in evidence without any protest from the plaintiff, it is difficult for me to accept the contention of Mr. Mehta. Once the document has been produced and admitted in evidence, no presumption should be raised from its late production. More over, the mere circumstances of a bit late production of receipt Ex. A2 is not a serious matter to disbelieve the evidence of the defendant. A concurrent finding cannot be disturbed merely by the non-production of the receipt along with the written statement.

6. Coming to the second contention, it was argued by Mr. Mehta that before filing the suit, the plaintiff served notice Ex. 2 on the defendant calling upon it to make the payment of a sum of Rs. 4360.42p. Despite this demand, in clear terms, the defendant gave no reply of denying the liability to make the payment or disclosing the receipt Ex. A2. It was argued that this silence on the part of the defendant heavily speaks against it. This silence shows that no payment was made as alleged by the defendant had receipt Ex. A 2 was not in existence at the time of the aforesaid notice.

7. This very contention was raised in the lower appellate court. The view of the learned Additional District Judge was that the non-replying the notice by the defendant has no material hearing on the evidence of the partice.

8. It is true that the defendant sent no reply to the plaintiff to its demand-notice Ex. 5. It would have been better on his part to send the reply denying its liability for the payment of the suit money and disclosing the receipt Ex. A 2 then and there. However this omission on the part of the defendent has no material bearing. It is atleast not sufficient when the evidence of the parties has been thoroughly discussed and receipt Ex. A 2 has been taken as a agenuine document by both the lower courts.

9. Thus, both the contentions raised by Mr. Mehta hold no ground.

10. Both the courts below have held receipt Ex. A 2 to be genuine document. They have further held that under this receipt the defendant has made the payment of a sum of Rs. 4360.86p. to the plaintiff. This Court should not interfere with the conclusions of the fact recorded by the lower courts even if the conclusions appear to be erroneous, The observations made in v. Ramchandra and Ors v. Ramalingam and Ors. A.I.R. 1963 S.C. 902 may be quoted on the point.

11. For the reasons stated above, the appeal fails and is hereby dismissed with costs.


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