IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.320 of 1997. Reserved on:24.06.2008. Decided on: July 02, 2008. Roop Chand …Appellant. VERSUS Smt.Pritu Devi ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr K.D.Batish, Advocate. For the respondent : Mr Balwant Singh vice Mr.K.D.Sood, Advocate. Kuldip Singh, Judge The defendant has come in appeal against the judgment, decree dated 4.1.1997 passed by learned Additional District Judge, Kullu in Civil Appeal No.29/1996 setting aside judgment, decree dated 31.7.1996 passed by learned Sub Judge 1st Class, Kullu in Civil Suit No.174 of 1993 and decreeing the suit of the respondent for Rs.22,000 along with simple interest at the rate of 12% per annum from the date of filing of the suit till realization. 2. The facts, in brief, are that respondent on the basis of writing dated 20.3.1990 Ext.PW-1/A filed a suit for recovery of Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Rs.33,880 which included Rs.22,000 principal amount and Rs.11,880 interest at the rate of 18% per annum. The case of the respondent is that on the basis of writing dated 20.3.1990, the appellant had purchased apple crop of the orchard of respondent of two years for Rs.48,000. He paid Rs.14,000 at the time of agreement and the balance amount was to be paid in installments more specifically mentioned in the plaint. The appellant paid Rs.7000 and Rs.5000 in the year 1991 and did not pay the balance amount as per the writing. The respondent had received in all Rs.26,000 from appellant. The appellant is liable to pay Rs.22,000 to the respondent as per writing along with interest at the rate of 18% per annum. 3. The appellant contested the suit by filing written statement, he took preliminary objections of maintainability of the suit, limitation and the suit is bad for want of better particulars. On merits, he admitted the writing dated 20.3.1990 but pleaded that he had paid whole of the amount of Rs.48,000 to the respondent and nothing is payable by him to her. The respondent filed replication and reiterated her case. The learned Sub Judge dismissed the suit on 31.7.1996. The respondent filed appeal against the judgment, decree dated 31.7.1996 and the appeal was allowed by learned Additional District Judge, Kullu on 4.1.1997, as noticed above, hence, this appeal by the defendant. 4. In the appeal, following substantial questions of law were framed:- …3… i) Whether the first appellate Court misconstrued and mis-appreciated the pleadings and the evidence adduced by the parties and the same vitiated the impugned judgment and decree? ii) Whether the first appellate Court has mis- interpreted the agreement between the parties where time was the essence of the contract and has thus given a perverse finding? iii) Whether the impugned judgment and decree is sustainable in the eyes of law and in view of the facts and circumstances of the case? iv) Whether the presumption of law in favour of the appellant stood rebutted by oral evidence of the plaintiff? The appeal was admitted on 1.1.1998 without reference to any substantial question of law nor any substantial question of law was framed at the time of admission of the appeal. The above referred four questions of law were treated substantial questions of law at the time of hearing of the appeal and the learned counsel for the parties were heard on the above substantial questions of law. 5. I have heard Mr.K.D.Batish, learned counsel for the appellant, Mr.Balwant Singh, Advocate appearing on behalf of Mr.K.D.Sood, Advocate, learned counsel for the respondent and gone through the record. It has been submitted on behalf of the appellant that learned Addl. District Judge has misconstrued and mis-interpreted the pleadings and evidence on record, time was the essence of contract. The impugned judgment and decree are not sustainable. …4… The appellant plucked the apple crop from the orchard without any objection from the respondent that proves that appellant had paid the amount to the respondent as per writing otherwise the respondent would not have permitted the appellant to pluck apples from the orchard. The learned counsel appearing on behalf of the respondent has supported the impugned judgment and decree. SUBSTANTIAL QUESTIONS OF LAW NO.(i) to (iv): 6. Since all the substantial questions of law are inter- connected, therefore, they are taken up for disposal collectively. The execution of writing dated 20.3.1990 Ext.PW-1/A has not been denied by the appellant. It is the case of the respondent that Rs.14,000 were paid by the appellant to her at the time of execution of the writing, Rs.7000 and Rs.5000 were paid by appellant to her in the year 1991. Thus, according to the respondent, in all she had received Rs.26,000 under the writing. The respondent before filing the suit got issued notice Ext.PW-2/A dated 28.7.1993 to appellant. In the notice, it has been specifically stated that out of Rs.48,000 the appellant had paid Rs.26,000 to the respondent and, therefore, Rs.22,000 along with interest at the rate of 18% per annum were demanded from appellant vide notice Ext.PW-2/A. 7. PW-2 Pritu Devi has reiterated her case. In her statement she has stated that she had received in all Rs.26,000 from appellant and the balance amount Rs.22,000 is payable by appellant to her. The appellant while appearing as DW-1 has not denied the receipt of the notice Ext.PW-2/A. He has stated that he had paid the whole of the …5… amount as per agreement but he does not have any receipt of the payment. The notice was issued on 28.7.1993 before filing of the suit which was filed on 29.8.1993. The appellant before filing the suit never took the stand that he had paid the whole of the amount of Rs.48,000 to the respondent. It is not the case of the appellant that he had not plucked the apple crop which was given to him under the agreement Ext.PW-1/A. It was for the appellant to prove the payment of balance amount of Rs.22,000 to the respondent. In his statement, appellant has not given the details of payments allegedly made to respondent under the agreement. He has not even given the month and year of the payments. He has not produced any witness to corroborate his stand that in fact he had paid entire amount of Rs.48,000 to respondent under the agreement, except for self serving statement of DW-1 Roop Chand there is no other evidence on record to support the contention of appellant that he had paid entire amount of Rs.48,000 to respondent. The respondent had discharged her burden to claim the suit amount by appearing in the witness box and stating on oath that the appellant had not paid the balance amount of Rs.22,000 to her under the agreement. It was for the defendant to rebut the case of the appellant by leading positive evidence that he had paid the balance amount of Rs.22,000 under the agreement to respondent. 8. There is nothing on record to show that the time was essence of the contract. In fact, the orchard was given by the respondent to the appellant for two years and when appellant did not pay the agreed amount as per writing Ext.PW-1/A to respondent then …6… she filed the suit. There is no issue to the effect that time was essence of the contract. The learned counsel for the appellant has failed to point out presumption of law in favour of the appellant for non suiting the respondent. The learned first appellate Court on facts has come to the conclusion that respondent is entitled to balance amount of Rs.22,000 under the agreement. The learned counsel for the appellant has failed to point out how learned lower appellate Court has misconstrued and misinterpreted the pleadings and evidence on record. The appellant has failed to make out any case for interference. In the facts and circumstances of the case, the learned Additional District Judge has rightly appreciated the material on record and no fault can be found with the impugned judgment and decree. The substantial questions of law No.(i) to (iv) are decided against the appellant and in favour of the respondent. 9. No other point was urged. 10. The result of the above discussion, the appeal fails and is accordingly dismissed with costs. July 02, 2008. ( Kuldip Singh ), J. (soni)