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Himjit Construction Vs. Tarun Sarkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 215 of 1983
Judge
Reported inAIR1985Cal200
ActsCode of Civil Procedure (CPC) , 1908 - Section 100 - Order 6, Rule 2; ;Evidence Act, 1872 - Section 114
AppellantHimjit Construction
RespondentTarun Sarkar
Appellant AdvocateBhaskar Bhattacharya and ;Asit Kumar Bhattacharya (3), Advs.
Respondent AdvocateBidyut Kumar Banerjee and ;Tapan Kumar Dutta, Advs.
DispositionAppeal dismissed
Cases ReferredCouncil v. Ranglal Nandlal
Excerpt:
- .....by mr. bhattacharyya, but we find little substance in either of the same. so far as the first point raised by mr. bhattacharyya is concerned, since the defendant at no point of time in his written statement disputed the authority of sri tarun sarkar to present the plaint on behalf of the plaintiff or to verify the same, such a point, in our opinion, should not have been allowed to be raised at all. it should not have been allowed for the simple eeason that the plaintiff had no previous notice of any such dispute so that he could produce material evidence to meet the same. it was rightly pointed out by the two courts below that the power of attorney in favour of sri tarun sarkar was filed in court and it was there on the record until delivery of judgment though it was not formally.....
Judgment:

Anil K. Sen, J.

1. This appeal from the appellate decree is at the instance of the defendant and it arises out of a money suit. Inthe money suit th plaintiff claimed a sum of Rs. 9,252/- as his outstanding dues for the works done on a sub-contract on behalf of the defendant for adjustment of the amounts paid and also claimed a sum of Rs. 748/- by way of interest. According to the plaintiff, he was given a sub-contract to effect certain painting and whitewashing of premises No. 4, Raja S. C. Mallick Road, Calcutta in March 1978. He completed the work in April 1978 and submitteda bill for a sum of Rs. 16,752/- for the works so done along with a job chart indicating the job undertaken by him on behalf of the defendant. According to the plaintiff, out of the aforesaid sum of Rs. 16,752/- he received payment of Rs. 7,500/- and what remained due by way of balance was Rs. 9,252/-. Since the said amount was not paid in spite of repeated reminders the plaintiff instituted the suit for recovery of the said sum together with interest as indicated hereinbefore. The suit was contested by the defendant. After taking all sorts of possible defences that can be taken in a general way the specific defence which the defendant took was that the sub-contract was not given to the plaintiff but was given to one Jayanta Kumar Sarkar. According to the defendant, the work undertaken by Jayanta Kumar Sarkar was less in volume than as claimed by the plaintiff. The value of the work done, according to the defendant, was Rs. 7873.26 but of which a sum of Rs. 7500/- being paid what remained due was merely Rs. 373.26. The defendant denied that any bill was submitted to the defendant by the plaintiff or that any such bill with a job chart was ever submitted. This in substance was the defence taken.

2. Upon the pleadings as aforesaid several issues were framed. Parties adduced evidence, both oral and documentary. The learned Subordinate Judge on consideration of the evidence answered the issues all in favour of the plaintiff and he further found that on the evidence adduced the case of the plaintiff had been well proved. Accordingly, the learned Subordinate Judge gave a decree for Rs. 10,000/- in favour of the plaintiff. On an appeal by the defendant all the findings recorded by the learned Subordinate Judge having been affirmed the learned Additional District Judge has dismissed the appeal. Hence the present second appeal.

3. Mr. Bhattacharyya appearing in support of this appeal has first contended thatthe plaint that was filed on the verification of one Tarun Sarkar was not maintainable as the said Tarun Sarkar had not proved the power of attorney in his favour under which he could derive authority to present the plaint or verify the same. Though no specific defence in this regard was raised in the written statement this issue was gone into by the two Courts below but was concurrently overruled because in view of the Courts below it was not for the defendant to dispute his authority and also because the power of attorney was duly filed though it was not exhibited because no specific issue was raised in that regard. The next point which has been urged by Mr. Bhattacharyya is that what appear to be the findings of fact are not really so because such findings are not based on evidence or are based on adverse inferences drawn contrary to law. These are the two points which have been convassed by Mr. Bhattacharyya in support of this appeal

4 . We have carefully considered the two points thus raised by Mr. Bhattacharyya, but we find little substance in either of the same. So far as the first point raised by Mr. Bhattacharyya is concerned, since the defendant at no point of time in his written statement disputed the authority of Sri Tarun Sarkar to present the plaint on behalf of the plaintiff or to verify the same, such a point, in our opinion, should not have been allowed to be raised at all. It should not have been allowed for the simple eeason that the plaintiff had no previous notice of any such dispute so that he could produce material evidence to meet the same. It was rightly pointed out by the two Courts below that the power of attorney in favour of Sri Tarun Sarkar was filed in Court and it was there on the record until delivery of judgment though it was not formally proved and exhibited for the simple reason that on the pleadings of the parties no such dispute had at all been raised. In that view, we propose to support the view of the learned Judges in the Courts below more on the ground that such a point was not available to the defendant on his pleadings.

5. So far as the second point raised by Mr. Bhattacharyya is concerned, it appears to us that the learned Judges in the two courts below considered the oral evidence of the plaintiff together with the documentary evidence in coming to a concurrent finding that the plaintiffs case had been wellestablished Apart from the oral evidence on record the plaintiff had proved copy of the bill which was submitted to the defendant. The copy of the bill so produced incorporates all the necessary particulars as to the quantum of work done and the rates agreed. That document by itself proves the plaintiff's claim. It is no doubt true that the learned Judges in the courts below tried to find support for the concurrent finding from an adverse inference raised against the defendant. Such inference was raised because the defendant failed to produce the original bill along with the job chart attached thereto that was submitted to the defendant by the plaintiff and also the copies of the plaintiff's own bill to his employer which could have given a clear idea about the quantum of the work done through the subcontract. When the defendant denied receipt of the bill the plaintiff proved submission of the bill by proving acknowledgment by the defendant's brother under his signature and the learned Judges observed that the defendant's denial of receipt is not believable when he had not examined his brother to disown the acknowledgment. It has been strongly contended by Mr. Bhattacharyya now before us that all these adverse inferences should not have been raised by the courts below for two reasons. In the first place, it is contended by Mr. Bhattacharyya that no adverse inference for non-production of documents could have been drawn when the plaintiff had not called for those documents from the defendant. It is also contended by Mr. Bhattacharyya that the courts below should not have drawn any adverse inference against the defendant for non-examination of his brother when the plaintiff could as well have summoned him as a witness.

6. We should point out here and now that this is a second appeal before us where findings of fact are generally binding on us. In the present case even if we exclude adverse inferences drawn by the Courts below still there remains sufficient evidence on record which could support the findings arrived at. As a matter of fact, the courts below had arrived at those findings on consideration of the positive evidence adduced by the plaintiff though they have supported those findings by adverse inference raised. Even if we exclude the support we are unable to hold that the other evidence cannot justify the finding or that such exclusion will render the findingsbased on no evidence as contended for by Mr. Bhattacharyya.

7. So far as point of law raised by Mr. Bhattachrya is concerned, no doubt he has strongly relied upon the decision of the Supreme Court in the case of Ramrati Kuer v. Dwarika Prosad Singh, : [1967]1SCR153 . But, in our view, perhaps it will not be correct to think that the Supreme Court had laid down an invariable or inflexible rule that no adverse inference can be drawn without prior calling for of the evidence either documentary or oral from the custody of the defendant. In our view, it has to be decided in each case on its facts to find out whether the evidence is really in the custody of the defendant and in the facts and circumstances there is a clear obligation on the part of the defendant to produce it. Where there exists such an obligationnon-production can very well justify the Court to raise an adverse inference even though such evidence had not been specifically called for by the plaintiff from the defendant. As a matter of fact, the Supreme Court in the case of Aryam Veerraju v. Pechetti Venkanna, : [1966]1SCR831 raised such an inference for non-production of documents constituting the best evidence which was lying in the custody of the paryy who having failed to produce it the inrrrence was drawn. That was also the view expressed by the Patna High Court in the case of Governor General in Council v. Ranglal Nandlal, AIR 1948 Patna 237 where the earlier Privy Council cases on the point having been considered the correct principle was indicated by the Patna High Court. We, are, therefore, of the opinion that the learned Judges in the courts below were not entirely wrong in raising the adverse inference as raised in the present case. Be that as it may, as we have already pointed out when the defence rests upon positive evidence which well justifies such a conclusion without support from the inference even if the courts below were wrong on the point of raising adverse reference (inference) that can be no ground for interference by us in the second appeal. Both the points raised by Mr. Bhattacharyya, therefore, fail, the appeal fails and is, dismissed.

8. There will be no order as to costs.

Prabir Kumar Majumdar, J.

9. I agree.


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