THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.894 OF 2010 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment and decree, dated 22.06.2009, in A.S.No.26 of 2006, on the file of the Additional District Judge, Hindupur, whereunder and whereby, the judgment and decree, dated 20.06.2005, in O.S.No.33 of 2002, on the file of the Senior Civil Judge, Hindupur, were confirmed. 2. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: Defendant No.1 entered into contract with the plaintiff - diary for transport of milk from Hindupur – Chalakur – Chowlur route, from 16.07.1998 to 15.07.1999. The agreed contract rate is Rs.2.95 ps. per K.M. Defendant No.2 stood as guarantor to defendant No.1 and executed an agreement on 27.10.1998 in favour of the plaintiff. The case of the plaintiff is that defendant No.1 suddenly stopped transporting the milk from 01.06.1999 and thereby committed breach of written contract as executed between the parties under Ex.A1. Further, defendant No.1 also entered into an agreement to transport the milk in respect of Hindupur – Madakasira and Neelakantapuram route for the period from 01.06.1999 to 31.08.1999 and stopped transporting milk in this route also from 01.06.1999. As a result, the plaintiff sustained loss to a tune of Rs.1,02,791/-. Hence, the Suit. 4. It is the case of defendant No.1 that he did not commit breach of any contract. The plaintiff – diary has not paid any amount to defendant No.1 and the plaintiff is due of entire amount for both the routes from 16.07.1998 to 16.07.1999 to defendant No.1. Defendant No.1 made several demands to the plaintiff for payment of the due amount. Hence, he prays to dismiss the suit. 5. The case of defendant No.2 is that he was not aware of the stoppage of transportation of milk by defendant No.1 from 01.06.1999. He came to know that the plaintiff – diary neglected to pay the arrears as per the terms of the contract to defendant No.1 and thereafter, defendant No.1 could not transport the milk. Hence, he prays to dismiss the suit. 6. Basing on the above pleadings, the following issues were framed for trial: “1. Whether the first defendant stopped transporting of milk without intimating the plaintiff from 01.06.1999? 2. Whether D.1 retained some of the articles of the plaintiff? 3. Whether D.1 is liable for spoiling of milk? 4. Whether D.2 stood as guarantor? 5. Whether the plaintiff is entitled for the suit amount? 6. To what relief?” 7. During trial, PW.1 was examined and Exs.A1 to A5 were got marked on behalf of the plaintiff. On behalf of the defendants, DWs.1 to 4 and Exs.B1 and B2 were got marked. 8. The trial Court after considering the evidence on record came to the conclusion that defendant No.1 committed breach of contract in terms of Ex.A1 and decreed the Suit of the plaintiff with costs for Rs.1,02,791/-. On appeal, the said decree and judgment were confirmed. Challenging the same, the present Second Appeal is filed by the defendants. 9. Learned counsel for the appellants/defendants contended that the representation of appellant No.1/defendant No.1 under Exs.B1 and B2 are not considered by the respondent/plaintiff; that there is no evidence to show that defendant No.1 committed breach of contract; that both the Courts below have not summoned the Registers, which record the entry of the milk lorries, from the respondent – diary and therefore, these are the substantial questions of law involved in the Second Appeal. 10. After the amendment in Section 100 of C.P.C. (amendment) Act, 1976, the High Court must be satisfied that the case involves a substantial question of law. In view of the amendment in the Section, the scope of Second Appeal has been considerably narrowed down and substantially curtailed. A substantial question of law should directly and substantially affect the rights of parties. 11. A finding is said to be perverse, if it is not based upon admissible evidence on record or inadmissible evidence has been taken into consideration or misconception of evidence or documents. To know whether the findings are correct or not, it is necessary to refer to the evidence adduced by the parties. 12. The points raised by the learned counsel for the appellants cannot be shown even as a question of law also. They are purely questions of fact. Even in a case of question of law, the Second Appeal is not maintainable as a matter of right, unless the appellants show that there was a substantial question of law involved in the Second Appeal. 13. It is not in dispute that Ex.A1 - contract was entered into between the respondent and appellant No.1 for transportation of milk from 16.07.1998 to 15.07.1999 from Hindupur – Chalakur – Chowlur route. It is also not in dispute that the contract rate is Rs.2.95 ps. per K.M. The evidence of PW.1 would go to show that appellant No.1 suddenly stopped transporting the milk from 01.06.1999 and therefore, appellant No.1 committed breach of contract under Ex.A1. His evidence is also clear that the said stoppage of transport of milk is without any prior intimation to the respondent. It is not in dispute that thereafter, when appellant No.1 stopped transporting the milk from 01.06.1999 onwards, the respondent made alternate arrangement for transport of the milk by incurring expenditure. Even appellant No.2, who stood as guarantor for appellant No.1, admitted that appellant No.1 stopped transporting the milk from 01.06.1999. Defendant No.1 cannot act unilaterally and stop the transportation of milk, as both the parties are bound by the terms and conditions of Ex.A1. If appellant No.1 is unable to transport the milk as agreed upon by him in the terms of Ex.A1, it is his duty to inform the same in writing to the respondent and that was not done so. It is not in dispute that the respondent – diary is a statutory corporation of the State Government. The entry of the milk lorries into the diary will be regulated by maintaining Registers. Those Registers have not been summoned to disprove the case of the respondent. On the other hand, the evidence of appellant Nos.1 and 2 would go to show that appellant No.1 was suffering from Jaundice and went to Rajahmundry for taking treatment. Appellant No.1 has not filed any documentary evidence to show his inability to transport milk beyond his control. Therefore, the contention of appellant No.1 that he was suffering from Jaundice cannot be accepted in the absence on any documentary evidence. Exs.B1 and B2 are the representations submitted by appellant No.1 to the concerned officials of the respondent - diary. It is not known whether they were received by the concerned officials or not, so as to take further action. Therefore, both the Courts below rightly placed an implicit reliance on the evidence of PW.1 and the recitals in Ex.A1, which would clearly go to show that without any valid reason, appellant No.1 committed breach of contract in terms of Ex.A1. Hence, there are no grounds to interfere with the impugned judgment. The Second Appeal is devoid of merit and is liable to be dismissed. 14. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C. BHANU, J November 08, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE EIGHTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.894 OF 2010 Between: T.N.Kullayappa and another .....PETITIONERS AND The A.P. Dairy Development Co-operative Federation Limited ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.894 OF 2010 November 08, 2010