IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 324 of 2000 with RSA 319 of 2000 Reserved on: 18.10.2010. Date of decision: 09.11.2010 1. RSA No. 324 of 2000: Bharam Dev Sood ... Appellant Versus Smt. Asha and others … Respondents 2. RSA No. 319 of 2000: Smt. Asha and others …. Appellants Versus Bharam Dev Sood … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. 1. RSA No. 324 of 2000: For the appellant: Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. N.K. Thakur, Advocate. 2. RSA No. 319 of 2000: For the appellants: Mr. N.K. Thakur, Advocate. For the respondent: Mr. Karan Singh Kanwar, Advocate. V.K. Ahuja, J. (Oral) : This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/plaintiff against the judgment and decree of the Court of learned Additional District Judge, Solan, dated 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 10.3.2000, modifying the judgment and decree passed by the Court of learned Sub Judge Ist Class, Kandaghat, dated 2.7.1999. 2. Briefly stated, the facts of the case are that the appellant hereinafter also referred to as the plaintiff filed a suit for recovery of Rs.45,093.55 Paise as against the respondent hereinafter also referred to as the defendant. The suit was filed as against the original defendant Mohan Singh, now represented by his L.Rs. It was alleged by the plaintiff that he owns and runs a saw mill for the last about 30 years. The defendant in the first week of May, 1992, in the company of one Shri Tulsi Ram approached the plaintiff to run the saw mill on 50% basis. As per the agreement, labour etc. was to be provided by the defendant and in addition, the defendant was to provide 50% investment and the plaintiff was to hand over the saw mill for manufacturing boxes for vegetable etc. As per agreement dated 5.5.1992, which was entered into orally in presence of Tulsi Ram, the defendant started running the saw mill on 9.5.1991 and ran the mill till 15.12.1992. It was also alleged that the accounts etc. were being maintained by the defendant and the plaintiff has nothing to do with the accounts and after 15.12.1992, the defendant gave the detail of accounts to the plaintiff and as per the said accounts settled, a sum of Rs.45,093.55 Paise is due against the defendant, which he promised to pay within a month, but the same was not paid inspite of a registered notice served upon the defendant, hence the suit for recovery of the amount filed by the plaintiff. 3 3. This judgment shall also dispose of an appeal bearing RSA No. 319 of 2000 filed by defendant Mohan Singh as against the judgment and decree of the Court of learned Appellate Court. 4. Defendant denied all the averments made in the plaint. He pleaded that there was no agreement between the parties nor any amount is due against the defendant. He admitted that a notice was received from the plaintiff, which was duly replied by the defendant and further nothing is due to plaintiff from the defendant. The suit is liable to be dismissed. 5. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the plaintiff is entitled to recover Rs.45,093.55 paise from the defendant on the basis of agreement, as alleged? … OPP 2. Relief. 6. Parties led their evidence and the learned trial Court vide its impugned judgment, decreed the suit of the plaintiff for recovery of full amount of Rs.45,093.55 paise. On appeal, the decree passed by the learned trial Court was modified and a decree for recovery of Rs.30,000/- only was passed as against the respondent on the basis of a statement made by the learned counsel for the respondent. The plaintiff aggrieved by non-granting of interest and cost has filed the present appeal. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The appeal has been admitted on substantial question of law as to whether the learned Additional District Judge has erred in not awarding any cost and interest on decretal amount of 4 Rs.30,000/- without assigning any reason. Another appeal bearing RSA No. 319 of 2000, the appeal was admitted on the ground as to whether the decree could be passed on the basis of Ext.PW1/A and Ext. PW1/B, which were in admissible in evidence. On perusal of the record of the case, it is clear that the agreement in question entered into in between the parties was oral and only witness to the said agreement was PW-2 Tulsi Ram. The plaintiff in his statement as PW-1 has stated that the agreement was executed orally in May, 1992 and the defendant agreed on 50% basis to run the saw mill. PW-2 Tulsi Ram had proved the oral agreement that these were the terms settled in between the parties. He also stated that the defendant worked for the whole season and he had been seeing the defendant doing the work. 9. Defendant denied the pleadings in full. He pleaded that no account was handed over by the defendant to the plaintiff. He also stated that Annexures A-1 to A-3 and other statement were prepared by the plaintiff himself and no sum is due against the defendant. He never took any plea that the suit for rendition of accounts only was maintainable as was sought to be argued by the learned counsel for the respondent. During the course of arguments another plea was raised just to be rejected that the partnership firm was not registered, which was raised for the first time before this Court. The defendant nowhere pleaded specifically that no such agreement was executed in between him and the plaintiff orally except denying the agreement in question. He did not plead that he worked as a labourer and was entitled to the charges as sought to be 5 argued or was entitled for some adjustment as has now been urged before this Court. 10. The only question to be determined by the learned trial Court was firstly as to whether there was an oral agreement in between the parties and what were the terms and conditions, secondly that the account was settled and this much amount was found due from the defendant towards the plaintiff. Coming to the oral agreement, there was statement of the plaintiff coupled with the testimony of PW-2 Tulsi Ram. The defendant appeared in the witness box as DW-1 and stated that there is no saw mill in the name of the plaintiff, which is in the name of one Prakash. It was also a new plea which was taken by him in his statement in Court and not in the written statement filed by him. He again came up with the plea that he had been working as a labourer and had worked for 2-2½ months, which plea was also beyond the pleadings. He again came up with the plea that the accounts were to be kept by the plaintiff himself and he had not prepared any accounts. He had denied that a sum of Rs.45,000/- was due towards the plaintiff by him. He also stated that a notice was received by him, which was duly replied by him. He came up with the plea in cross-examination that he was getting labour charges at the rate of Rs.50/- and had received Rs.3000 - 4000/- as labour charges. He further came up with the plea that he still has to recover Rs.2500 – 3000/- from the plaintiff. This part of the evidence has been referred to prove that the defendant had been taking different stands in his written statement or in his deposition before Court or even during the arguments. The only point to my mind on which the appeal was admitted is as to whether the 6 plaintiff was also entitled to cost and interest on the sum of Rs.30,000/- awarded by the learned First Appellate Court. Therefore, the point to be considered is only to this extent as to cost and interest and not beyond that. 11. A perusal of the record of the case of the Court of learned Additional District Judge shows that the appeal was pending before the learned First Appellate Court and the learned counsel for the respondent made a statement in Court on 3.3.2000 that the decree of the lower Court be modified and he has no objection to the grant of decree for a sum of Rs.30,000/-. On that basis, the learned First Appellate Court accepted the appeal and modified the decree for recovery of Rs.30,000/- but did not award any cost and interest. To my mind, the statement of learned counsel for the plaintiff should have also been recorded as to whether he accepts this statement made voluntarily by the learned counsel for the defendant agreeing to the decree for Rs.30,000/-, but the learned First Appellate Court did not record any statement and on the basis of the statement made by the learned counsel for the respondent only he decreed the suit of the respondent/plaintiff for recovery of Rs.30,000/-. It has to be interpreted as to whether this offer was for decreeing the suit for Rs.30,000/- in all or whether cost and interest were to be awarded on this amount by the Court. Once the case has been decided on the basis of the statement of the learned counsel for the respondent, it has to be interpreted that this was the amount offered by the respondent in all inclusive of everything and as such, the appellant was not entitled to cost and interest apart from what has been granted by the learned Appellate Court. The learned Appellate Court had mainly 7 decreed the suit on the basis of this statement and it has to be interpreted that this amount was conceded by the learned counsel for the respondent/plaintiff before the Court of learned First Appellate Court inclusive of cost and interest and, therefore, there is no merit in the appeal filed by the appellant Bharam Dev Sood. 12. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by appellant Bharam Dev Sood, which is dismissed for the reasons given above. 13. In view of the fact that the appeal filed by the appellant/defendant Mohan Singh was allowed by the learned Appellate Court on the basis of the admission made by him through his counsel that the suit be decreed for Rs.30,000/-, it has to be concluded that there is no merit in the appeal filed by defendant/appellant Mohan Singh and both these questions raised in regard to admissibility of the document do not arise for consideration and as such, the appeal filed by defendant Mohan Singh is liable to be dismissed 14. In view of the above discussion, both the appeals stand dismissed accordingly. However, the parties are left to bear their own costs. A certified copy of judgment be placed on the record of RSA No. 319 of 2000. ( V.K. Ahuja ), November 09, 2010 Judge (BSS) 8