1 S.A.No. 473.07. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 473 OF 2007 M.V.Papaih S/o Puliaiah,Age about 65 years,Occupation Business, Prop. Mahalaxmi Fruit Co. Fruit Merchant and Commission Agent, Bus stand Hanamkonda District Warangal, Andhra Pradesh State APPELLANT V E R S U S Safdar Alikhan S/o Maheboob Ali Khan Aged about 55 years, Occupation Business R/o Ardhapur, Ta.Ardhapur,District Nanded. Through Special Power of Attorney Irfan Ali Khan S/o Safdar Ali Khan, Age 30 years Occupation Business, R/o Ardhapur, Ta. Ardhapur, District Nanded RESPONDENT Mr.S.V.Kurundkar,Advocate for Appellant Mr.G.R.Sayed,Advocate for respondent CORAM : A.V. NIRGUDE,J. DATED : 11TH MARCH,2010 PER COURT 1] This appeal takes exception to the Judgment and decree passed by the learned Adhoc District Judge -1 Nanded in Regular Civil Appeal No. 40 of 2000, which arose from the Judgment and decree passed in Regular Civil Suit No. 671 of 2000, dated 7th February, 2004. The appellant was the original defendant. The respondent filed the suit 2 S.A.No. 473.07. for recovery of price goods, which he had sold to the appellant. 2] The case of the respondent was as under - . The respondent was inhabitant of Ardhapur District Nanded and was supplier of Banana fruits. He said that during the course of his business, he supplied Banana fruits to the appellant, who had his business of fruits at Hannamkonda, District Warangal ( Andhra Pradesh). 3] The respondent stated that he used to sent the bills with each batch of fruits supplied periodically. He said,in each bill he would give particulars of balance amount payable by the appellant as well as the price of fruits supplied at the particular time. The last of such bill was sent on 11th January, 1992 alongwith the batch of fruits sent by a motor truck. In this bill, the respondent clearly mentioned that the out standing balance against the appellant on that day as Rs.91,158.35 inclusive of the the payment received till then and the price of goods sent on that day. With this pleading he filed suit for recovery of the amount. 4] The appellant took up a stand opposing the suit that he would not admit the suit claim because he said the claim was inflated and incorrect. In view of this, the only question between the parties was “whether the respondent 3 S.A.No. 473.07. could prove his claim?” The respondent led the evidence and brought on record office copy of bills sent periodically to the appellant. The last bill was exhibited at Exh.73. Despite of cross examination nothing come out to discard and disbelieve the respondent's case. The trial Court, however, dismissed the suit. 5] The matter went in appeal and the learned Judge of the first Appeal Court held that the learned Judge of the Trial Court committed grave error in appreciating the evidence of the parties, in framing of the issues etc. The learned Judge of the first Appeal Court placed reliance on the evidence of the respondent and accepted his case and decreed the suit. 6] Upon hearing the submissions of the learned Advocates of the parties, the following question arises for my consideration - Whether the case required to be remanded back to the lower Court ? 7] The learned Advocate appearing for the appellant mainly contended that the learned Judge of the first Appeal Court erred in not recording his findings on the relevant issues. He said, looking to the issues framed by the Trial Court it was incumbent upon the learned Judge of the first Appeal Court to formulate the relevant and necessary points for determination and since this exercise was not undertaken properly, the entire 4 S.A.No. 473.07. Judgment of the first Appellate Court vitiated, he said it deserve to be set aside and case deserve to be remanded back to the first Appellate Court. I am afraid, this exercise is not necessary. I could see that the learned Judge of the trial Court did not conduct the case properly in as much as he did not frame necessary issues putting burden on the respondent plaintiff to prove his claim. He erroneously framed number of (unnecessary)issues and wrongly directed the appellant-defendant to prove certain facts. Despite of erroneous issues, fortunately, the respondent took care to lead necessary evidence to prove his case. He put forwarded the documentary evidence to show that the parties were continuously engaged in transactions and at the foot of the account on 11th February, 1992 the amount due against the appellant was Rs.91,158.35. Despite of this cogent and overwhelming evidence, the learned Judge of the trial Court erroneously dismissed the suit. The learned Judge of the first Appeal Court re-appreciated the evidence and recorded his finding on the facts mainly holding that the respondent-plaintiff had proved his claim of the suit amount. 8] The fact that the learned Judge of the Trial Court framed erroneous issues would not come to the aid of the appellant at this stage, when the appellant's advocate asserted that the learned Judge of the first appeal Court did not frame 5 S.A.No. 473.07. proper points for determination etc. This submission is not acceptable because, as said above, the learned Judge of the first appeal court rightly ignored the mess of the learned Judge of the trial Court had created in the case and simplified the discussion. 9] The Appeal should fail. The Appeal stands dismissed. The amount deposited by the appellant be handed over to the respondent or his advocate. The request of the appellant's Advocate to defer the execution of the decree for a period of six weeks, is rejected. Sd/- ( A.V. NIRGUDE, J.) 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