FA/1169/1989 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1169 of 1989 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== VIJUBHAI BHIMJIBHAI AND OTHERS Versus VIRJIBHAI NARSIBHAI PATEL AND ANOTHER ====================================== Appearance : MR MB GANDHI for Appellants. MR BG PATEL for Respondent No.1. None for Respondent No.2. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/05/2008 ORAL JUDGMENT 1. By way of this appeal, the original judgment debtor has challenged judgment and order of City Civil Court, Ahmedabad dated 9th August 1989, whereby the suit preferred by the plaintiff was allowed. FA/1169/1989 2/4 JUDGMENT 2. The facts in brief, as emerging from record, are as under: 3. Respondent no.1 herein had filed a suit being Civil Suit No.1023 of 1980 before the City Civil Court, Ahmedabad, for recovery of Rs.34,480/- from the defendants. The plaintiff of the suit approached the defendants as he was in need of residential house and since the defendants were doing the work of construction they agreed to sell one tenement to the plaintiff. For that purpose, the plaintiff also paid Rs.32,000/- and the defendants agreed to execute sale deed within a period of two months. However, the defendants sold out the suit tenement to someone else. Therefore, the plaintiff filed the suit. In the said suit, defendants have filed their written statement and prayed for dismissal of the suit on various grounds. 4. After considering the evidence on record, trial Court decreed the suit in favour of the plaintiff and directed the defendants to pay Rs.34,480/- with interest to the plaintiff. Being aggrieved by it, the appellant has filed this appeal. 5. Heard Mr.Gandhi, learned advocate appearing for the appellant and Mr.B.G.Patel for respondent no.1, original plaintiff. Nobody appears on behalf of the respondent no.2. 6. Learned advocate for the appellant, Mr.Gandhi submitted that learned trial Judge failed to consider the provisions of Evidence Act to find whether there is a written document between the parties or not. He further submitted that simply because original defendant no.2 signed the receipts, and that too without authority, he cannot be held to be a partner of the firm. He further submitted that merely on the basis of withdrawal of amount from the bank by a bearer cheque, it cannot be FA/1169/1989 3/4 JUDGMENT presumed that the said amount is paid to the appellants, when there is no entry in this regard in books of account of the appellants. 7. On behalf of respondent no.1, it is submitted that the judgment of the trial is just and proper and it requires no interference by this Court in this appeal. It is submitted that the plaintiff had received loan of Rs.32,000/- and a cheque in this regard was deposited in his bank account, which amount was withdrawn to make payment to the defendants. It is submitted that the plaintiff's brother has also stated in his statement that the plaintiff had made payment of Rs.32,000/- and a writing in this regard was passed, which was exhibited at exh.41/1 and the writing produced by the plaintiff before the trial Court is not controverted by the defendants. It is also submitted that before the trial Court, the defendants failed to prove that the plaintiff has used aforesaid amount of Rs.32,000/- elsewhere. Accordingly, it is submitted that the appeal of the appellant may be dismissed. 8. I have considered the submissions made on behalf of the parties and also gone through the judgment of the trial Court and other relevant documents. In view of above discussion and on perusal of relevant documents, I find that the plaintiff has successfully proved his case before the trial and the trial Court has passed impugned judgment after considering relevant evidence on record. Therefore, I am in complete agreement with the reasonings given and finding arrived at by the City Civil Court while passing impugned judgment. No other evidence is shown to me to take a contrary view. Therefore, I do not find any reason to interfere with the impugned judgment. FA/1169/1989 4/4 JUDGMENT 9. For the reasons stated herein above, the appeal deserves to be dismissed and the same is dismissed with no order as to costs. (K.S.Jhaveri, J.) /malek