RSA No. 4250 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM Nos. 12861, 12862, 12863, 12864, 12865 & 12866 -C of 2009 and RSA No. 4250 of 2009 (O&M) Date of Decision: November 25 , 2009 The Punjab State Cooperative Supply and Marketing Federation Limited and another ...... Appellants Versus M/s Bansal Rice Mills ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Rajiv Malhotra, Advocate for the appellants. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. CM No. 12861 - C of 2009 For the reasons recorded, delay of 2 days in filing the present appeal against the impugned judgment is condoned. CM stands disposed of. CM No. 12862 - C of 2009 For the reasons recorded, delay of 11 days in filing the present appeal against the impugned order is condoned. CM stands disposed of. RSA No. 4250 of 2009 (O&M) 2 CM No. 12863 - C of 2009 Learned counsel for the applicant-appellant states that this CM may be dismissed as having been rendered infructuous. Ordered accordingly. CM No. 12864, 12865 and 12866 -C of 2009 CMs allowed. Documents taken on record. RSA No. 4250 of 2009 (O&M) This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondents to the effect that the appellants were contractually obliged to supply paddy to them which they failed to do to the required extent. The defence of the appellant was that in fact the requisite contractual amount of paddy had been supplied to the respondent. Both the Courts below found that the appellants were not able to establish their claim that the contractually required amount of paddy had been supplied to the respondent and, therefore, decreed the suit. An order whereby an application under Order 41 Rule 27 C.P.C.filed by the appellants was dismissed, has also been impugned. By that application the appellants wished to examine a handwriting expert to prove that some application had been written by one Vinod Kumar and that the said Vinod Kumar had validly executed a consolidated receipt for the requisite amount of paddy. In this connection the learned lower Appellate Court found that right from the beginning the stand of the respondent was that the said Vinod Kumar was neither a partner nor an authorised signatory of the respondent-firm and that the evidence now sought to be proved was admittedly a document which was in the possession of the appellants themselves. The Court also took into RSA No. 4250 of 2009 (O&M) 3 consideration the fact that as per the appellants' witness independent record was also required to be maintained of the despatch of paddy to various firms. However, the said record was inexplicably also not produced. It was in these circumstances that the application for additional evidence was declined. The following questions have been proposed:- i) Whether the Ld .Addl. Distt. Judge, Sangrur in not allowing the application U/O 41 Rule 27 CPC,which would have ultimately nailed the lie set forth by the plaintiff/respondent, has committed a gross error of law? ii)Whether the non allowance of the expert opinion (Hand writing Expert) on the signatures scribbled by Vinod Kumar has led to travesty of justice? iii)Whether the Ld.Addl. Judge, Sangrur has not erred in law by wrongly relying on the evidence of Vinod Kumar (PW2) who has deposed that he never executed the receipt dated 15.12.98 (Exhibit D1/A) to conclude that Vinod Kumar was not authorised to act on behalf of the defendant/plaintiff in the matter of receipt of paddy? iv)Whether the Ld.Additional District Judge, Sangrur in the face of glaring evidence has wrongly swayed the decision in favour of the defendant/plaintiff by wrongly relying on the deposition of Vinod Kumar who had intentionally denied the execution of receipt Exhibit D1/A and who intentionally signed in Punjabi when his evidence as PW2 was closed? Questions No. (iii) and (iv) are pure questions of fact. As regards questions No. (i) and (ii) learned counsel has relied upon the judgmemt of the Hon'ble Supreme Court in Zahira Habibulla H. Sheikh and another v. State of Gujarat and Ors.(also referred to as the Best Bakery Case) reported as 2004(2) RCR(Criminal) 836 wherein the Hon'ble Supreme Court has said as follows:- “The necessity for additional evidence arises when the RSA No. 4250 of 2009 (O&M) 4 Court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in. In all cases it cannot be laid down as a rule of universal application that the Court has to first find out whether the evidence already on record is sufficient. The nature and quality of the evidence on record is also relevant. If the evidence already on record is shown or found to be tainted, tailored to suit or help a particular party or side and the real truth has not and could not have been spoken or brought forth during trial, it would constitute merely an exercise in futility, if it considered first whether the evidence already on record is sufficient to dispose of the appeals. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the object of any trial. The exercise has to be taken necessary for rendering a verdict different from what was rendered by the trial Court. In a given case even after assessing the additional evidence, the High Court can maintain the verdict of the trial Court and similarly the High Court on consideration of the additional evidence can upset the trial Court's verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused.” In my opinion firstly the appellants are guilty of not having produced the best evidence available viz. their own record regarding despatch of paddy which could have been in the shape of excerpts from their own despatch documents, records from the transport company/agency allegedly used by the appellants and such other. Sole reliance was sought to be placed on a consolidated receipt executed by Vinod Kumar. The said receipt was put to him in cross-examination and he denied his signatures RSA No. 4250 of 2009 (O&M) 5 thereon. Admittedly at that time the appellants had access to gate passes which were relied upon by the respondent itself which according to learned counsel for the appellants were signed by the same Vinod Kumar. These gate passes were also never confronted either to Vinod Kumar or to the partners of the said firm. In the circumstances even if the application for additional evidence was allowed, in my opinion the tenuous link sought to be established by the appellants would not be such as would be able to prove that they had in fact supplied the requisite amount of paddy as has been stated by the Hon'ble Supreme Court in the above quoted judgment. Questions No. (i) and (ii) also thus have to be answered against the appellants since in my opinion there was no illegality in the order declining the application under Order 41 Rule 27 C.P.C. Consequently holding all the questions proposed against the appellants, this appeal as well as the application for stay are dismissed. No costs. (AJAY TEWARI) JUDGE November 25, 2009 sunita