IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Nirmal Kodwani Vs. Krishan Gopal Verma (S. B. Civil First Appeal No.338/2010) S. B. Civil First Appeal under Section 96 read with Order 41 Rule 1 C.P.C. Against the judgment and decree dated 26-5-2010 passed by Additional District Judge (Fast Track) No.3, Ajmer Camp Kishangarh in Civil Suit No.45/2009 (49/2007), whereby the suit for recovery has been decreed. Date of Judgment: August 25, 2010 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Vishwajeet Mantri, for the appellant. BY THE COURT: Aggrieved by the judgment and decree dated 26-5-2010, passed by Additional District Judge (Fast Track) No.3, Ajmer, Camp Kishangarh whereby the learned Judge has decreed the suit for recovery of Rs.66,990/- in favour of the plaintiff-respondent, the defendant-appellant has challenged the same before this court. 2. The brief facts of the case are that Krishan Gopal Verma, the plaintiff-respondent, instituted a civil suit for recovery of Rs.66,990/- against Nirmal Kodwani, the appellant, on the ground that the defendant had engaged services of plaintiff for videography and photography of the marriage of defendant's daughter, Pooja, which was solemnised in Delhi on 6-12-2005. According to the plaintiff he had raised two different bills, namely first one for Rs.10,660/-, and second one for Rs.48,285/-. Initially the defendant promised to pay the bills, but subsequently, he failed to do so. Therefore, on 25-6- 2007, the plaintiff sent a legal notice to the defendant. Since the defendant still did no pay the bills, the plaintiff filed the suit for recovery of the due amount. 3. The defendants-appellants filed written statement and denied the averments made in the plaint. On the basis of pleadings of the parties, the learned trial court framed five issues, including the issue with regard to relief. In order to buttress his case, the plaintiff examined two witnesses, including himself, and exhibited twenty-five documents; the defendant examined two witnesses, including himself, and exhibited a single document. After going through the oral and documentary evidence, vide judgment dated 26-5-2010, the learned trial Judge decreed the suit in favour of the plaintiff- respondent. Hence, the present first appeal before this court. 4. Learned counsel for the appellant, Mr. Vishwajeet Mantri, has vehemently contended that the the appellant happens to be a resident of Dubai, and his daughter's marriage was performed at Delhi. Thus, there is no reason why the appellant would have hired the services of the plaintiff at Kishangarh. Secondly, the plaintiff has fabricated a false case against the appellant, and has falsely pleaded that the appellant owes money for the alleged videography and photography. Thirdly, the learned Judge has overlooked these glaring facts. Fourthly, the learned Judge has not given any cogent reason for believing the evidence produced by the plaintiff. Thus, the impugned judgment is a non-speaking one. 5. Heard learned counsel for the appellant and perused the impugned judgment. 6. A bare perusal of the impugned judgment clearly reveals that the learned Judge had framed five issues, including the issue of relief. The very first issue was whether the plaintiff had done photography and videography at the wedding of defendant's daughter Pooja at Delhi on 6-12-2005 or not? In order to prove this issue, the plaintiff had produced both the video, and the negatives of photographs before the court. Although the defendant had denied the fact that he had hired the services of plaintiff, but in his cross- examination he had admitted that photographs and videograph were that of his daughter's marriage. He also admitted that negatives submitted by the plaintiff were that of his daughter's marriage. Learned counsel for the appellant has argued that the video, and the negatives of the photographs were made available to the plaintiff by relatives of the appellant for the purpose of developing. However, a bare perusal of the impugned judgment clearly reveals that such a plea was never raised by the defendant before the trial court. Hence, the learned counsel has raised a new plea before this court. Needless to say, a new plea based on facts cannot be raised before the appellate court. Therefore, the defence claimed by the appellant is unsustainable. 7. It is pertinent to note that in his cross-examination the defendant had clearly admitted that both photographs and the video do relate to his daughter's marriage. It is also essential to note that the defendant has neither pleaded nor proved that, in fact, the photography and videography were done by some other person. Considering the fact that in his cross-examination the defendant has admitted that videograph and photographs, shown to him in court, were of his daughter's wedding, thus, the conclusion drawn by the learned trial Judge that the plaintiff has succeeded in proving the first issue, such a conclusion is unshakable. The learned trial Judge has also noticed the fact that although the defendant had claimed that the bills produced by the plaintiff were forged, but still the defendant did not take any legal action against the plaintiff. In case the bills submitted by the plaintiff were fabricated, certainly, the defendant would have lodged a criminal case against the plaintiff. Therefore, the silence on this issue by the appellant clearly proves that plaintiff's bills are genuine bills. Hence, the learned trial Judge was certainly justified in concluding that the plaintiff has established his case against the defendant. Since, the learned trial Judge has properly discussed the evidence, the contention of the learned counsel for the appellant that the impugned judgment is a non-speaking one is clearly untenable. 8. For the reasons, stated above, this first appeal is devoid of merit. It is, hereby, dismissed. Decree be prepared accordingly. ( R.S. CHAUHAN ) J. arn