// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Civil Regular First Appeal No.159/1991 Bijendra Singh S/o Shri Prahlad Singh ...Plaintiff-Appellant Versus The State of Rajasthan through the Chief Secretary, Jaipur & Others ...Defendants-Respondents Date of Judgment ::: 10 th January 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Shri Babu Lal Gupta, Counsel for appellant Smt. Sudesh Kasana, Deputy Government Advocate, for the respondents By the Court:- Heard learned counsel for both the parties. This regular first appeal under Section 96 of the Code of Civil Procedure, on behalf of the plaintiff, is directed against the impugned judgment and decree dated 29th May 1991 passed by the Additional District & Sessions Judge No.7, Jaipur City, Jaipur, in Civil Suit No.204/1989, whereby the learned trial court, while dismissing the claim of the plaintiff for a sum of Rs.1,38,340/- (Original Rs.1,13,000/- + interest Rs.25,340/-), decreed the suit of the plaintiff only for a sum of Rs.7,370/-. The plaintiff filed a suit for recovery of a sum of Rs.1,45,710/- before the lower Court against the // 2 // defendants wherein it was pleaded that tender of the plaintiff was accepted for supply of raw material at Bareth dam by defendant No.3 for a sum of Rs.97,639/- during the period from 20th March 1987 to 21st April 1987. The Executive Engineer, vide its letter dated 31st March 1987, increased the sanction of material component up to Rs.1,80,000/-. The plaintiff completed his work within time and supplied the goods. The defendants made the payment of Rs.67,000/- against two running bills of the plaintiff out of total contract amount of Rs.1,80,000;/- up-to 31st March 1987. The defendants wrongly made some deductions out of payment of Rs.67,000/- also. The plaintiff therefore pleaded that he is entitled for a sum of Rs.1,13,000/- for supply of material, Rs.7,370/- which were wrongly deducted, total Rs.1,20,370/- and a sum of Rs.25,340/- towards interest at the rate of 12% per annum with effect from 21st April 1987 till date, therefore, it was prayed that a decree for a sum of Rs.1,45,710/- be passed in favour of the plaintiff and against the defendants. The defendants filed their written-statements wherein they denied the contents of the plaint, as pleaded. It was admitted that a work order for a sum of Rs.97,639/- for supply of raw material was given to plaintiff but the plaintiff did not complete his work as per the terms and conditions of the tender/agreement. The // 3 // letter dated 31st March 1987 was admitted but it was clarified that it was a letter written by the defendant No.3 to the Assistant Engineer informing him that the total sanction amount for material component is Rs.1,80,000/-, but it was not a work order to the plaintiff. It was also pleaded that even as per the terms of the agreement the plaintiff could have been asked to perform maximum 10% more work. But, so far as the present case is concerned, the plaintiff even had not completed the initial work, therefore, no occasion arose for defendants to give him another work order for supply of material component. The details of supplied material by plaintiff, as mentioned in measurement-book, was mentioned in Para No.7 of the written-statement, which were amounting to Rs.67,857/- and, after necessary deductions, the entire amount of the bill of the plaintiff has been paid to him. It was also pleaded that as per the condition No.8 of the agreement the plaintiff never raised his bill. The defendant No.3 had informed to the plaintiff after payment of second running bill vide letter dated 28th April 1987 that the work of the plaintiff is very slow and the penalty may be imposed upon him and the work can be withdrawn, but he did not perform the work satisfactorily, therefore, it was prayed that the suit of the plaintiff be dismissed with special costs under Section 35A of the Code of Civil Procedure. // 4 // On the basis of the pleadings of the parties, the learned trial court framed four issues. The Issue No.1 was whether the defendants have not paid the amount of supplied material components to the plaintiff and the plaintiff is entitled to recover a sum of rs.1,20,370/-. The Issue No.2 was whether the plaintiff is entitled to get a sum of Rs.25,340/- towards the interest at the rate of 12% per annum from the defendants. The Issue No.3 was whether the plaintiff is entitled for a decree to a sum of Rs.1,45,710/-. The Issue No.4 was as to whether the court has jurisdiction to hear the suit. The plaintiff in support of his case examined himself as PW-1 and produced documentary evidence Exhibit-1 to Exhibit-14. The defendants examined DW-1 Rajendra Singh, Assistant Engineer, and DW-2 R.P. Gupta, Junior Engineer. The learned trial court, after hearing both the parties and considering the oral and documentary evidence on the record, decided Issue No.1 partly in favour of the plaintiff. It was held that the plaintiff is not entitled to a decree for a sum of Rs.1,13,000/- but he is entitled to a decree for a sum of Rs.7,370/-, which was wrongly deducted from his bill. The Issues No.2 and 3 were decided against the plaintiff and in favour of the defendants. The Issue No.4 relating to jurisdiction of the Court to hear the suit, was decided in favour of the // 5 // plaintiff. Consequently, in view of the findings on Issue No.1 the trial court dismissed the suit of the plaintiff for a sum of Rs.1,13,000/- and the amount of interest of Rs.25,340/-, total Rs.1,48,340/-, and decreed the suit in respect of amount of Rs.7,370/-. Being aggrieved with the same, the plaintiff has preferred the present appeal. The learned counsel for the appellant, Shri Babu Lal Gupta, contended that the learned trial court wrongly decided Issue No.1 against the plaintiff in respect of his claim for a sum of Rs.1,13,000/-, and the reasons given by the trial court that there was no work order in favour of the plaintiff for a sum of Rs.1,80,000/- are illegal and perverse and also contrary to Exhibit-3. The plaintiff had supplied the material components in pursuance of the work order Exhibit-3 dated 31st March 1987 and informed the defendants vide its letters Exhibit-5, 6, 11, 12, and 13, to check and verify the goods supplied by him; the defendants did not give any reply to the above referred letters, therefore, a presumption should have been drawn by the trial court against the defendants under Section 114 of the Evidence Act and the suit ought to have been decreed, therefore, the impugned judgment passed by the trial court be set aside/modified and the entire suit of the plaintiff for recovery of a sum of Rs.1,45,710/- be decreed. The learned counsel for the respondents supported // 6 // the impugned judgment passed by the trial court and contended that the plaintiff was given work order for a sum of Rs.97,639/- only and no order was given for supply of material for Rs.1,80,000/-; Exhibit-3 was only an internal letter/correspondence in between the Executive Engineer and the Assistant Engineer informing that total sanctioned amount for material component is up-to Rs.1,80,000/- and this letter cannot be construed as an order to supply the goods by the plaintiff; the plaintiff never supplied raw material for a sum of Rs.1,80,000/- and, as such, he is not entitled to a decree as prayed for by him. The learned trial court has considered the oral and documentary evidence in detail and has rightly recorded a finding in respect of Issue No.1 which calls for no interference by this Court. I have considered the submissions of learned counsel for both the parties and examined the impugned judgment as well as the documentary evidence produced on behalf of both the parties. The learned trial court, while deciding Issue No.1, has considered the oral and documentary evidence in detail including Exhibit-1 - the work order for a sum of Rs.97,639/-, Exhibit-3 - the letter written by the Executive Engineer to the Assistant Engineer informing the sanctioned amount for material component as Rs.1,80,000/-, Exhibits 5, 6, 11, 12 and 13 are the // 7 // letters written by the plaintiff to the defendant No.3 regarding supply of material goods and for checking the same and thereafter recorded a finding that from Exhibit- 1 it is proved that an order for supply of goods for a sum of Rs.97,639/- was given by the Executive Engineer, Bharatpur, to the plaintiff. The plaintiff has not produced any documentary evidence regarding any work order to him for a sum of Rs.1,80,000/-. Merely writing the letters Exhibits 5, 6, 11,12 and 13 is of no consequence. The trial court has also considered that the plaintiff has not produced any bills/vouchers. The receipts of royalty, his own accounts or cash-book in order to prove that he got material from the mines and the same were supplied by him to the defendants. I have also examined the oral and documentary evidence produced on behalf of both the parties. PW-1 Bijendra Singh, in his statement, has stated that vide Exhibit-1 he received initial work order for a sum of Rs.97,639/- to complete the work during the period from 20th March 1987 to 21st April 1987. Subsequently, he received another order vide Exhibit-3 and in pursuance thereof he supplied the material for a sum of Rs.1,80,000/-. It is relevant to mention that so far as Exhibit-1 is concerned, the defendants have also admitted that they gave work order to plaintiff for a sum of Rs.97,639/- and they have paid the entire bill amount // 8 // raised against this work order. So far as Exhibit-3 is concerned, I find that it was not a work order by the defendant No.3 to the plaintiff but it was a letter written by the Executive Engineer to the Assistant Engineer whereby it was informed that the total sanctioned amount for material component is up-to Rs.1,80,000/-. However, it appears that a copy of it was endorsed to the plaintiff and the entire argument of the plaintiff is based on this document Exhibit-3 that this letter should be construed as work order to the plaintiff by the defendant No.3. A bare perusal of Exhibit-3 dated 31st March 1987 shows that it is an internal correspondence in between the Executive Engineer and the Assistant Engineer and, it cannot be read as work order by the defendant No.3 to the plaintiff. So far as the present case is concerned, after scrutiny of oral and documentary evidence it also appears that the claim of the plaintiff for a sum of Rs.1,13,000/- is not proved from any cogent evidence. PW- 1 Bijendra Singh, in his statement, has admitted that his signatures are not there on measurement-book. He used to bring material from mines after payment of royalty to Mines Department but he did not produce the royalty receipts to prove his case that he brought the material from the Mines Department. PW-1 also admitted that from whom he brought the goods to supply the same to // 9 // defendants is not known to him and he did not furnish the details thereof in the Court. It is also proved from the record that the plaintiff did not file any copy of the bill giving out the details of the material supplied by him to the defendants. PW-1 has stated that he submitted the bill to the defendants but he has not produced copy thereof in the Court. The entire argument of the learned counsel for the appellant is that in spite of notice under Section 80 of the CPC on behalf of the plaintiff to defendants, no reply was given by them to plaintiff or his counsel and in spite of five letters Exhibit 5, 6, 11, 12 and 13 to the effect that the plaintiff has supplied material, the same was not checked and no reply to these letters were given, therefore, a presumption should be drawn against the defendants and a decree for recovery of amount should be passed in favour of the plaintiff. It is a settled law that the plaintiff has to prove its own case and it cannot be allowed to take benefit of weakness of defendants case. PW-1 Bijendra Singh has admitted that he has not filed copy of the bill raised by him before the defendants in the Court. The details of supply of goods are not available in the Court also. Although, the plaintiff is required to prove his own case which he has not proved in the present case but even if for the sake of argument it is presumed that an // 10 // adverse inference can be taken against the defendants for not giving reply to notice under Section 80 of the Code of Civil Procedure or the letters of the plaintiff, then also it is not proved on the record as to for what amount and on what basis, the suit of the plaintiff can be decreed. So far as the present case is concerned, it is proved that Exhibit-3 is not a work order by the defendant No.3 to plaintiff and if any goods have been supplied by him then the same were at his own risk and not in pursuance of any work order given to him. There is no dispute in between both the parties that the so-called goods have not been entered in measurement-book or supply register. The plaintiff has also not filed any supply register or his own books of accounts. There is nothing on the record on behalf of the plaintiff except few letters wherein also the details of so-called supplied goods are not available, therefore, it is not known as to when and at what time and how much material was supplied by him to the defendants so as to pass any decree in his favour even after drawing an adverse inference against the defendants. In these circumstances, I find that the finding of the learned trial court in respect of Issue No.1 is right and no case is made out for any interference in it. The findings of trial court on issues No.2 and 3 // 11 // are based on the finding on Issue No.1, which has been decided against the plaintiff, therefore, there is no need to discuss the same. In view of the above discussion, I do not find any merit in any of the contentions of the learned counsel for the appellant. The appeal is devoid of any merits and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman// S.No.S-H-4