HI6H COURT OF JUNCATURE AT BILASPUR CHHATTESSARU Civil Revision No.345 of 2003 APPLICANT: RESPON&ENT: Versus Prakash Wadhwani, Son of Indraj Matl, aged about 48 years, R/o Jagmal Chowk, Bilaspur, Prop.: M/s Shiv Shouikar Dal Milt, Jarhabhata, Bilaspur, Tehsil <& District: Bilaspur (C.6.). Deepdiand Santdas, Srain MerchanT, ft/o BirsingpurPali, Tehsil Beenpur Pali, District; Umaria (M.P.) Itli, •.^ill.iilic^li POSTFOR ORDER ON 1^h MARCH. 2004 Sd/- L.C.BHADOO Judge ^i HI6M COURT QF JU&ICATURE AT BILASPUR (CHHATTISSARH5 Simle Beneh*; Hon'ble Shri L.C. Bhadoo J^ Gvil Revision No.345 of 2003 APPLICANT; Versus RESPQMDENT: Prakash Wadhwcni, Son of Indraj Mall, aged about 48 years, ft/o Jagmal Chowk, Bilaspur, Prop.; M/s Shiv Shankar Dal Mill, Jarhabhata, Bilaspur, Tehsii & t)istrict: Bilospur (€.©.). Deepchand Santdas, Grmn MerchanT, R/6 Birsingpur Pali, Tehsil Beenpur Poli, bistrict; Umaria (tt.P.) Present: Shri Ritesh Ahuja, counsel for the applicant. *»••(' OR bER (Passed on ' £^ March 2004) The plaintiff has preferred this civil revision being aggrieved by the judgment and decree dated 18-10-2003 passed in Civil Appeal No. l-B/2003 by the Additional bistrict Judge, Bilaspur, arising out of -Hie judgment and decree dated 28-2-2003 passed by the 7th Civil Judge, Class-H, Bilaspur in Civil Suit No.20-B/2001. i (2) The necessaiy facts for the disposal of this civil revision are that the applicant herein filed a civil suit against respondent Oeepchand Santdas in the Court of Civil Judge, Class-II, Bilaspur with the averments that on 11-9-98 the defendcuit entered into acontract through Sadhi/ani brokers with the plaintiff for supph^ of 140 bags of Ro^iar at the rdte of ! m c~ 1800/- per quintal and in comptiance of the said contract the defendant sent t only 70 bags of Rahar on 13-8-98 by a truck and the remaining 70 bags of Rahar were not sent by the defendont in spite of the repeated reminders. After one week the rates of Rahar were increased to 2100/- per quintal and, therefore, on account of non-supply of 70 bags pf Rahar, as per the contract with the defendant, the plaintiff has suffered a loss of 300/- per quintal and other expenses of Rs.8,322/-. (3) After stopping the payment of Rs.3,322/- remaining amount was sent by the plaintiff to the defendant, therefore, total amount due against the defendant is after deducting Rs.8,322/-, Rs. l2,678/- and the interest Rs.5,822/-, total Rs/18,500/-. The plaintiff is entitled to receive the amount of Rs.18,500/- as damages -from the defendouit. In the written statement fited by the defendouit, the defendant denied that a contract for supply of 140 bags of Rahar was entered into, but he said that through Sadhvani brokers a contract for supplyof 70 bags of Rahar @ Rs.1800/- was entered into and on 13-9-98 the same was sent by the truck. (4) The plaintiff in order to prove his claim examined PW-1 Prakosh Wadhwani and PW-2 Shyam Wadhwani. After believing the evidence of the plaintiff the trial Court i.e. the learned Civil Judge, Cioss-II, decreed the suit against the defendant. However, being aggrieved by that judgment and decree of Civil Judge,Class-II, the defendant filed an appeal before the Additional District Judge who by impugned judgment ond decree set-<side the judgment and decree of the trial Court and dismissed the suit. : (5) I have hedrd the learned counsel for the applicant and perused the evidence and the judgment of the trial Court' as well as the appellate Court. (6) A perusal of the judgment of the appelhte Court revealsi that the appellctte Court after scrutinizing the evidence of PW-1 Prakash Wadhwani and PW-2 Shyam Wadhwcaii reached the conclusion thaf the evidence of these two witnesses does not inspire confidence and is nofworth 9v' believable, as their statements are contradictory with ea.ch other and are not supported by the relevant materiai documents. The few reasons assigned by the appellate Court are that plaintiff Prakash Wadhwani (PW-1) hcs stated in his evidence that he got unloaded 70 quintals of Rahar without any objection and he has not stated that the remaining Rahar was not sent on account of the non-availability of the truck. The plaintiff has not stated that broker Shyam Wadhwani informed him that the remaining 70 bags of Rahar were not sent on account of the non-avaihbility of the truck whereas, PW-2 Shyam Wadhwani has stated that on account of non-availabilit/ of the truck remaining 70 bags of Rahar were not sent by the defendant cuid he has stated that remaining 70 bags would be sent later on, whereds, this fa.et has not been stated by the plaintiff. Therefore, this is a materiat contradiction between the evidence of the plaintiff dnd his witness PW-2 Shyam Wadhwani. (7) Further as per the evidence of defendouit Sontdas cind death certificate of Deepchand, Deepchand died on 28-8-86, therefore, he died much before the date of the contract i.e. 11-9-98 whereas, Shyam Wadhwani has stated that the contract was entered through Deepchand whereas, he was atready dead much before the date of the contract i.e. 11-9-98. Therefore, the above evidence of Shyam Wadhwani was not believed by tlie oppellate Court. The appellate Court- has further observed that PW-1 Prakash Wgdhwani in paro-11 of his cross-examination has stated that the brokers always sent written papers regarding every contract, and the same are sent on the same day of the contraet and the goods are sent thereafter as per the convenience. It is further stated that broker Shyam gave in writing gbout the contract and he has further stated that he used to keep the accounts of every contract and he has entered in his diary about this contract also. But, those documents were not produced by the plaintiff in order to supporl- his evidence. Therefore, the appellate Court ought not to have believed the »fc (8) In the matt-er of 6opat Krishnaji Ketkar v. Mohamed Haji Latif t and others reported in A1R 1968 Supreme Court 1413 the Hon'ble Apex Court has held that:- "as per Sections 114^) and 103- A party in possession of best evidence which would throw light on the issue in controversy withholding it- Court' ought to draw an adverss inference against him notwithstanding that onus of proof does not lie on hini." Therefore, in view of +he above. adver^ inference was drawn against the plaintiff that he has withheld those documents deliberately for the reason that if he will produce those documents then those documents will go against him. Further when the said Rahar was not sent by the defendant then why the notice was not given, this has not been explained by the plaintiff. Therefore, the tearned appellate Court has not believed the evidence of ths plaintiff. (9) Moreover, the learned oppelkite Court has observed that it has been alleged in the plaint that after 11-9-98 the price of Rahar was increased from Rs.1800/- to Rs.2100/-, but no document to that effect was produced by ttie piaintiff whereas, the other bills were produced in which the price of Rahar on 11-9-98 was Rs.1800/-. On 8-7-99 it was Rs.1625/-, on 10-9-99 it was Rs.1790/- per quintal and on 10-10-00 it was Rs.1900/- per quintal. So it never 'mcreased more than Rs.1900 per quintal and no such bill was produced by the plaintiff to prove his case. Therefore, the leamed appellate Court has reached the conclusion that the plaintiff was not abie to prove that the price of Rahar was increased to Rs.2100/- and for other reasons assigned by the appellate Court for not believing the plaintiff's evidence that the ptaintiff was not able to prove that the contraet between the plaintiff and the defendant was entered into for supply of 140 bfflgs of Rahar ond the price of Rdhar was increased from Rs.1800/- to Rs.2100/- within a week. »WiE5»^u>UBT, (10) The judgment of the appellate Court is based on the > appreciation of the evidence and with sound reasoning. I do not find any illegality or infirmity in the judgment of the appeltate Court. The oppellate Court has not committed any material irregularity. I do not find any substance in this civil revision and the same is liable to be dismissed and it is dismissed. i— Sd/- L.C.BHADOO Judge ^3-2004 <1 IIs