IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 125 of 1998 Date of decision: 21.07.2010 ______________________________________________________ Yogesh Sethi .....Appellant. Versus Sharki Dolam Sherpa & others .....Respondents. Coram The Hon'ble Mr. Justice Surjit Singh, J. Whether approved for reporting?1 Yes. For the appellant: Mr. Bhupinder Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate. For the respondents: Mr. Dushyant Dadwal, Advocate. ______________________________________________________ Surjit Singh, J (oral). This Regular Second Appeal, by the defendant, was admitted on the following substantial questions of law: 1. Whether evidence led by Chhering netup explaining his signatures on Ex.D-2, which is contrary and beyond the scope of pleading can be treated as a legal evidence? 2. Whether the Courts below have legally ignored the case as framed by Chhering netup, the plaintiff and have rightly framed a different and new case, has not been pleaded. Whether such approach is lawful? 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- 3. Whether Ld. Courts have acted in a just and proper manner by not considering material documents and oral evidence on record, specially, report of Examiner of Questioned Documents called at the instance of plaintiff and which goes against the plaintiff, if not, then whether non-consideration of material evidence i.e. report of expert, specially in the light of stand taken with regard to forgery committed by photo-copying amounts to illegality? 4. Whether Courts below have acted rightly in not discussing, appreciating and considering material evidence on record, what is the effect of failure to do so? 5. Whether there can be finding of fact without considering material and important oral and documentary evidence? 6. Whether testimony of one witness or party to a litigation can be preferred to that of other witness or party on the ground of area to which he belongs? 7. Whether adverse inference can be drawn against a party for non-production of a document, which is neither basis of claim nor party seeking drawing of presumption asks for production of said documents? 2. Appeal is directed against the judgments and decrees of the trial Court and also, the First Appellate Court. Trial Court -: 3 :- decreed the suit of the respondent, for recovery of a sum of Rs. 1,00,000/-. Appeal filed by the appellant/defendant was partly accepted and the decretal amount was reduced from Rs. 1,00,000/- to Rs. 80,112/-. 3. Facts, which need to be noticed for the disposal of appeal, are like this. Appellant/defendant is a registered contractor, for execution of civil works. So is the respondent/plaintiff. Defendant was awarded a work by the State Electricity Board, in the year 1982. The work was to be executed in Spiti area of Lahaul & Spiti District. Total cost of the work was around Rs. 4,00,000/-. In connection with the execution of that work, appellant/defendant engaged respondent/plaintiff as sub-contractor. He was given the job of excavation, shuttering and fabricating steel. It was agreed that the entire amount, received from the Electricity Board, on account of excavation or earth work, would be paid to the plaintiff/respondent, after deduction of 2 per cent money. In respect of fabrication of steel and shuttering work, also there was similar agreement, except that, deduction was to be made by the appellant/defendant @ one percent. 4. Plaintiff alleged that he executed work worth Rs. 1,00,000/- and the defendant received the money from Electricity Board, but nothing was paid to him. He served a legal notice on 11.04.1983, copy Ex. PW-1/D, through a lawyer, upon the appellant/defendant, claiming a sum of Rs. 91,102/- and also informing that in case, the money was not paid within 15 days from -: 4 :- the receipt of the notice, both, civil and criminal action, would be initiated. Nothing was paid despite service of notice. Therefore, the plaintiff/respondent filed suit for recovery of Rs. 1,00,000/-, alleging that he had spent that much of money on the execution of work and also claimed interest on the said amount. 5. Suit was contested by the appellant/defendant. It was pleaded that the work of excavation was time bound, but the plaintiff/respondent did not deploy sufficient number of labourers, as a result of which, the appellant/defendant had to deploy his own work force, arranged from other contractors and it was then that the work of excavation could be completed within the stipulated time. Also, it was alleged that the excavation carried out by the labour of respondent/plaintiff was faulty, in the sense that it was not in proper alignment and also the width and depth of the dug channel were not uniform. Further, it was stated that a sum of Rs. 43,935/- had been paid to the respondent/plaintiff against receipt, dated 6th March, 1983, Exhibit DW-1/J, in full and final satisfaction of his claim. According to him, respondent/plaintiff was entitled to a sum of Rs. 33,000/- to 34,000/-, but additional amount of about Rs. 10,000/- was paid to him, on account of his blackmailing tactics, as he had filed complaints with the Board authorities and the Board authorities had not been releasing huge amount of money due to the appellant/defendant, on account of other items of the job, executed by him. 6. Trial Court held that the plaintiff had executed -: 5 :- work worth Rs.1,00,000/- and that nothing had been paid to him. Consequently, a decree, for a sum of Rs. 1,00,000/- with interest @ 12 per cent per annum from 1st July, 1983, till execution of decree, was passed. 7. Appeal was filed by the appellant/defendant in the Court of District Judge. District Judge upheld the findings of the trial Court, but concluded that the value of the work executed by the respondent/plaintiff was Rs. 80,000/-. Consequently, decree of the trail Court was modified and decretal amount was reduced to Rs. 80,112/-. 8. I have heard the learned counsel for the parties and gone through the oral as well as documentary evidence. 9. The two Courts below have held that receipt, Ex. DW- 1/J, relied upon by the appellant/defendant is not genuine. The Courts have held that respondent/plaintiff was required by the defendant/appellant to write his address on a piece of paper and that the respondent, after writing his name and address, handed over that piece of paper to appellant/defendant and the latter misused that paper and typed a receipt above respondent’s name and address. 10. View taken by the two Courts below is incorrect on the face of it. Plaintiff/respondent took a specific plea, in his replication, that when he was called upon to give his address in writing, he wrote his name and address on the top of a letter head of a third party and handed the same over to the appellant/defendant and -: 6 :- that it appeared, that the name written by him on that piece of paper, had been traced by the appellant/defendant on the receipt, Ex. DW- 1/J. This plea, he took not only in the replication, but also in an application, dated 29th June, 1985, which he submitted to the trial Court for getting the signatures on the receipt, Ex. DW-1/J, compared with his specimen writings/signatures, which he gave to the Court. In the said application, he sought opinion on two points, viz. whether the signature on the receipt, Ex.DW-1/J, was genuine, and whether the signature was traced from any other paper. Reference was made to the Government Examiner of Questioned Documents, Shimla, who reported that signature on receipt, Ex. DW- 1/J, was similar to the specimen writings/signatures of the respondent/plaintiff. 11. Receipt, Ex. DW-1/J, shows that the name (signature) and address of the respondent/plaintiff are not written on its top, nor is this receipt on any letter head of any person. Signature and address of the respondent/plaintiff are written below the middle of the paper and the paper is just a plain one. These facts give a complete lie to the plea raised by the respondent/plaintiff, in the replication. This aspect of the matter has not been looked into by the two Courts below. 12. Plaintiff, himself approached the trial Court for comparison of signature on receipt, Ex. DW-1/J, with his specimen signatures/writings and when the opinion went against him, he did not place reliance upon it. The two Courts below have overlooked -: 7 :- the opinion of the Handwriting Expert, who, in this case, is a Government Examiner of Questioned Document, despite the fact, that the opinion was sought at the instance of the plaintiff himself and he raised no objection qua that opinion. 13. Trial Court and First Appellate Court have taken the view that if the receipt had been executed on 6th March, 1983 and the respondent/plaintiff had, as per contents of that receipt, accepted the amount, mentioned therein, in full and final satisfaction of his claim, there could not have been any question of any dispute remaining between the parties, but the evidence on record shows that the appellant/defendant gave a chit, Mark-X, to the plaintiff/respondent to the effect that he would be visiting Bhuntar on 14th March, 1983. Trial Court has failed to take notice of the explanation given by plaintiff for having given this chit. Explanation of the defendant/appellant is that since complaints have been filed by the respondent/plaintiff with the Electricity Board Authorities, about non-payment of his dues and the Board people were not releasing the money due to him, so, the respondent/plaintiff had been handed over that chit, so that he also reached Bhuntar and withdrew the complaints. The testimony of the appellant/defendant is corroborated by another chit, Mark-X, which, respondent/plaintiff gave to him and which bears the signature of respondent/plaintiff. According to this chit, respondent/plaintiff undertook to reach Kullu on 14th March, 1983 to withdraw the complaints. It may be noted that Kullu and Bhuntar are situated quite close to each other and the -: 8 :- distance is around ten kilometers. 14. Learned counsel for the respondent/plaintiff further submits that if the appellant/defendant had made the payment against receipt, Ex. DW-1/J, where was the occasion for the defendant/appellant to have called the plaintiff/respondent to Solan again on 17th or 18th March, 1983 to settle the matter, and then to have taken him to Ludhiana on 19th March, 1983. This is one sided case of the plaintiff/respondent that he was called to Solan and then, taken to Ludhiana, as aforesaid. The appellant/defendant does not admit this story. According to the respondent/plaintiff, he was taken to Ludhiana on 19th March, 1983, where he was lodged in a particular hotel for the night and then, police was sent to that place to arrest him on false accusation, made against him by the appellant/defendant, to the effect that he had been assaulted with a knife. 15. This plea of the respondent/plaintiff does not inspire confidence. In the month of April, 1983, that is to say, after the alleged incident of assault, respondent/plaintiff served a legal notice through a lawyer, upon the defendant/appellant. That notice is Ex. PW-1/D, dated 11th April 1983. There is not even a whisper in the notice that the plaintiff was called to Solan and was then taken to Ludhiana and at Ludhiana, he was sought to be implicated in a false case of assault, though, the notice threatens appellant/defendant with legal action, both on criminal and civil side. When the plaintiff/respondent was threatening the appellant/defendant, even -:9 :- with criminal action for his liability to pay the money, he would not have missed to narrate the alleged incident of Ludhiana in the said notice, had it been a fact. 16. Trial Court and First Appellate Court have also fallen in error in assuming that the plaintiff/respondent had carried out work worth Rs. 1,00,000/- or Rs. 80,000/-. Plaintiff, himself, testified that as per his assessment, total value of the earth work executed by him was Rs. 80,000/-. He admitted that for three days, appellant/defendant had also deployed some labourers to execute the work. Another witness examined by the plaintiff, namely Hari Ram, also admitted this fact. This witness, Hari Ram, PW-5, was an employee of the H.P. State Electricity Board, at the relevant time. Plaintiff admitted that he did not execute the work of shuttering and steel fabrication. According to the measurement book, Ex. PW-5/A, earth work or excavation work was carried out on 20th, 21st and 22nd August. Hari Ram, PW-5, also stated that the earth work was carried out on the spot from 20th to 22nd August, 1982. Plaintiff admits that for three days, appellant/defendant had deployed some labourers to do the excavation work, which had been assigned to him. The total value of the entire earth work / excavation work, according to the plaintiff himself, was around Rs. 80,000/-. There is no evidence, indicating as to how much work was done by the labour deployed by plaintiff/respondent and how much by the labour arranged by the appellant/defendant. Therefore, the two Courts below were not right in concluding that the plaintiff was entitled to -: 10 :- Rs. 1,00,000/- (as held by the trial Court) or Rs. 80,000/- (as held by the First Appellate Court), when both, the plaintiff and the defendant, had executed the work and there was no evidence on record, indicating the number of labourers deputed by each side. The plaintiff, at the most, could be said to have executed half of the total excavation work, the amount of which comes to around Rs. 40,000/-. 17. Substantial questions of law, on which the appeal was admitted, are answered accordingly. Consequently, appeal is accepted. As a sequel to the acceptance of appeal, judgments and decrees of both the Courts below are set aside and the suit of the respondent/plaintiff is dismissed with costs. (Surjit Singh) Judge 21st July, 2010 (rajni)