1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 213 OF 2006 Marutirao s/o Bhimrao Chavan .. APPELLANT VERSUS Firm M/s Mahera and company & another .. RESPONDENTS Mr. B.V. Dhage, Advocate holding for Mr. A.M. Gaikwad, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 7 th October, 2009. PER COURT : 1 Original plaintiff is raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted suit claiming recovery of amount of Rs.1,09,500/- towards hire charges in respect of tractors, which according to the plaintiff were given on hire basis to the defendants. According to plaintiff, two tractors which belonged to the plaintiff were handed over to the defendants since 1 st January 1981 to 31 st December 1983 on hire basis. Daily hire charges 2 were at the rate of Rs.100/- per day. Defendants failed to pay hire charges to the plaintiff and as such, plaintiff is constrained to institute the suit against defendants. 3 Defendants appeared and resisted the suit by filing written statement. According to them, the tractors in question were purchased in the name of plaintiff. However, there was an agreement between defendants and plaintiff to the effect that the tractors purchased in the name of plaintiff would be appropriated by the defendants and they would repay the price alongwith additional sum of Rs.5000/- to the plaintiff in due course of time. According to defendants they have paid the price of the tractor amounting to Rs.47,000/- and have also paid an amount of Rs.5,000/- in addition to the price to the plaintiff. Defendants denied the hire agreement as contended by the plaintiff and have also denied their liability in respect of payment of hire charges to the plaintiff. Defendants as such pray for dismissal of the appeal. 4 Trial court after receiving evidence led by the parties came to the conclusion that the plaintiff has failed to establish oral agreement in respect of hire of tractors by defendants on daily charges of Rs.100/-. It is also 3 recorded by the trial court that the defendants have etablished that they have parted with the consideration amount in favour of the plaintiff and as such they became owners of the tractor in question. Trial court thus dismissed the suit by judgment and decree dt. 31-12-1982. Judgment and decree passed by the trial court was subjected to challenge at the instance of plaintiff in Regular Civil Appeal no. 200/2000 which came to be heard and disposed of by the 2 nd Additional District Judge, Jalna who was pleased to dismiss the same by judgment and decree dt. 17-11-2003. 5 I have perused the judgments recorded by both the courts below. Both the courts below have recorded finding of fact that the plaintiff has failed to establish oral agreement in respect of hire of tractors in favour of the defendants. Plaintiff has also not led any reliable evidence in respect of settlement of hire charges nor has placed on record any account in that regard. In this view of the matter, view adopted by the courts below based on appreciation of evidence appears to be reasonable and proper. In exercise of powers conferred under section 100 of the Code of Civil Procedure, no interference is called for in the instant appeal. Appeal therefore stands dismissed summarily. 4 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa213.06.odt 5 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 8947 OF 2009 IN SECOND APPEAL NO. 213 OF 2006 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 7 th October, 2009. 1 This is an application seeking condonation of delay of 80 days occurred in presenting application for bringing legal representatives of deceased respondent no. 2 on record as well as for impleadment of legal representatives of deceased respondent no. 2 on record. 2 Heard learned counsel for the applicant. For the reasons stated in the application, application is allowed. Legal representatives of deceased respondent no. 2 are permitted to be brought on record. Delay of 80 days occurred in presenting the application stands condoned. Record be amended accordingly. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sa213.06.odt 6