IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 RSA.NO. 834 OF 2009() ------------------------------------ AS.180/2005 OF ADDITIONAL DISTRICT CURT,KOLLAM OS.863/2001 OF PRL.M.C., KOLLAM .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------------- RAVIKUMAR,AGED 44 YEARS,S/O.MADHAVAN NAIR,ALUVILA VEEDU, KOONAYIL,PARAVUR,KOLLAM DIST. BY ADV. SRI.V.VENUGOPALAN NAIR SRI.C.UNNIKRISHNAN (KOLLAM) RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- GOVINDAN AZHAKESAN,AGED 78,GENERAL MERCHANT AND COMMISSION AGENT,MAIN ROAD,KOLLAM. ADV. SRI.K.K.JOHN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== R.S.A. No.834 of 2009 ==================================== Dated this the 18th day of June, 2010 J U D G M E N T Second Appeal arises from judgment and decree of learned District Judge, Kollam in A.S.No.180 of 2005 confirming judgment and decree for payment of money passed by learned Munsiff, Kollam in O.S. No.863 of 2001. Respondent-plaintiff is a General Merchant and Commission Agent engaged in wholesale of rice. It is his case that appellant who is running retail business in the name and style 'Appu Provision Store' purchased a load of Biriyani rice for Rs.41,410/- on credit basis on 22.07.2000 as per Bill No.2795. Appellant did not pay the amount and thereon respondent issued notice to the appellant through lawyer demanding payment of the amount. In spite of service of notice there was no response. Hence the suit. P.W.1, Accountant of the respondent and P.W.2, his Agent gave evidence regarding the transaction and proved Exts.A1 to A4. Exhibit A1 is the Bill Book showing the alleged sale of Biriyani rice to the appellant on 22.07.2000 as per bill No.2795. Exhibit A2 is the Account Book maintained by the respondent for the period from 01.04.2000 to 10.01.2001. Exhibit A3 is the Bill Book for the period from R.S.A. No.834 of 2009 -: 2 :- 01.04.2000 to 31.03.2001. Exhibit A4 is the Purchase Register. These documents are produced to support evidence of P.Ws.1 and 2 regarding the transaction with the appellant. Stand of appellant is that he had no such transaction with respondent, nor had any transaction before or thereafter. It is also his case that the collection agent of respondent cheated respondent and created documents fraudulently to show alleged sale of Biryani rice to the appellant on credit basis. Appellant gave evidence as D.W.1. Learned Munsiff accepted the evidence of P.Ws.1 and 2 and found in favour of the transaction pleaded by the respondent. In the course of appeal appellant filed I.A. No.1121 of 2007 to receive additional documents producing certain registers allegedly maintained by him. Learned District Judge observed that it is not shown that these documents were not available with the appellant during the time of trial and finding that there is no reason to admit additional evidence dismissed that application. Learned District Judge confirmed the judgment and decree of learned Munsiff in A.S. No.180 of 2005. Hence this Second Appeal urging by way of substantial question of law whether courts below went wrong in finding that appellant is liable to pay the plaint claim in the absence of any evidence binding him and R.S.A. No.834 of 2009 -: 3 :- particularly when the alleged transaction is a commercial transaction and whether first appellate court went wrong in rejecting I.A. No.1121 of 2007 for reception of additional evidence. Learned counsel for appellant contended that there is absolutely no evidence to show that there was any transaction between appellant and respondent and that documents produced by the respondent are self serving documents. According to the learned counsel there is no record to show that any such article was taken delivery by the appellant. It is the further contention that appellant is running a petty retail shop and it is difficult to believe that a load of Biriyani rice was purchased by him. Regarding dismissal of I.A. No.1121 of 2007 it is contended by learned counsel that appellant has been deprived of an opportunity to adduce evidence. According to learned counsel those documents could not be produced in the trial court as they were in the custody of sale tax authorities. 2. Question is whether any substantial question of law is involved so that the Second Appeal has to be admitted for consideration. It is settled position of law that even if finding of fact entered by the courts below is erroneous that is not a ground for this Court to interfere in Second Appeal. Interference is R.S.A. No.834 of 2009 -: 4 :- required only when the finding is perverse in that it is not supported by any evidence at all or is contrary to the evidence. 3. Evidence on record is that of P.Ws.1 and 2, Accountant and Agent of the respondent. It is the case of respondent that through the agents also he used to collect orders for wholesale of rice. P.W1 has given evidence regarding the transaction. He has also proved Exts.A1 to A4. It is true that in none of Exts.A1 to A4 there is the signature of appellant. But courts below observed that Exts.A1 to A4 referred to the transaction between appellant and respondent on the relevant day. It is also found by the courts below that nothing is brought out to disbelieve Exts.A1 to A4. It is true that Exts.A1 to A4 are registers prepared by the respondent. But it is revealed from the evidence that those registers are prepared in the usual course of business. Under Section 34 of the Indian Evidence Act though such documents by itself may not be sufficient, that could corroborate evidence of P.W.1. P.W.1 has given evidence regarding the transaction. He claimed that he was present on the occasion when petitioner purchased the rice. That evidence of P.W.1 gets corroboration of Exts.A1 to A4. 4. It is also pertinent to note that before institution of the R.S.A. No.834 of 2009 -: 5 :- suit notice demanding the amount was sent to the appellant. But he did not reply. Of course he has a case that on getting notice he met the respondent who assured that no action will be taken based on that notice. Respondent has denied that. Fact remained that in spite of respondent sending notice to the appellant demanding payment of money pursuant to the impugned transaction and credit bill dated 22.07.2000 appellant has not replied to that notice. Failure to reply to a notice cannot cast liability. But that fact also has to be taken into account in appreciating the evidence which gets corroboration from Exts.A1 to A4. 5. Then the question is whether first appellate court was justified in not admitting additional evidence. It is not as if a party is entitled to adduce additional evidence as a mater of course in appeal. Additional evidence can be admitted under Order XLI Rule 27 of the Code of Civil procedure only on satisfying the circumstances stated therein. Learned District Judge has observed that circumstances stated in Order XLI Rule 27 are not satisfied and hence request for reception of additional evidence cannot be allowed. 6. Having gone through the judgments under challenge R.S.A. No.834 of 2009 -: 6 :- and hearing learned counsel I do not find reason to think that finding entered by the courts below are perverse. No substantial question of law is involved in the matter requiring admission of Second Appeal. 7. Learned counsel submits that appellant wants to take up the matter before the Supreme Court. Hence I direct that amount deposited by the appellant in the trial court shall not be released to the respondent till the expiry of one month from this day. Resultantly, Second Appeal fails. It is dismissed in limine. Interlocutory Application Nos.1801, 1802 and 1805 of 2009 shall stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv