IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 288 of 2003 Date of Decision: 11th September, 2008 Shri Durga Ram Appellant/plaintiff Versus Shri Ajay Sharma and others Respondents/defendants Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Harsh Khanna, Advocate. For the respondents: Mr. Ravinder Thakur, Advocate. Sanjay Karol, J. (Oral) In the present appeal the plaintiff has assailed the judgment and decree dated 10.7.2003 passed by District Judge, Solan, in Civil Suit No. 20-S/1 of 2002, titled as Shri Durga Ram vs. Shri Ajay Sharma and others, dismissing his suit for recovery of Rs.4,30,000/- and a prayer for permanent prohibitory injunction. The plaintiff (appellant) filed a suit against the defendants (respondents), for recovery of Rs.4,30,000/- on the ground that truck No. HP-14-2359, bearing Engine No. 697 D23GVQ 760716, Chassis No. 360324GVQ721508, model 1995, was sold by defendant No.1 to the plaintiff vide agreement dated 11.3.2002 for a sum of Rs.3,60,000/-. The possession of the truck was handed over to the plaintiff and over a period of Whether the reporters of Local Papers are allowed to see the Judgment? 2 time total amount of Rs. 3 lacs stood paid by the plaintiff. However, with malafide intentions defendant No.1, illegally took back the possession of the truck on 22.5.2002. The complaint with the police was also lodged, but, however, no action was taken in the matter. A legal notice dated 9.5.2002 was also issued and a reply was received denying the fact that the vehicle stood sold to the plaintiff. The plaintiff earlier filed a suit in the Court of Sub Judge, Arki, for permanent injunction, which was withdrawn with liberty to file a composite suit afresh. The suit was contested by the defendants on the ground that the plaintiff was actually working as a driver with defendant No.1 and was possessing the vehicle as such. While driving the same not only the plaintiff caused extensive damage to the vehicle, but also did not render any accounts for plying the truck on various routes. In fact plaintiff removed parts of the truck and committed theft. Neither GPA nor agreement to sell were executed and the same are an act of fraud, collusion and conspiracy of the plaintiff and attesting witnesses. The defendants in fact claimed damages of Rs. 1 lac from the plaintiff. Based on the pleadings of the parties, the Court below framed the following issues:- 1. Whether the agreement in question was executed by the defendant No.1 and the plaintiff is entitled for the recovery of the amount as alleged? OPP 2. Whether the plaintiff is estopped and has no locus standi to file and maintain the suit? OPD. 3. Relief. 3 Appreciating the material on record (oral and documentary) the trial Court found that the defendant No.1 had not executed the agreement and in the absence of any binding agreement between the parties the plaintiff was not entitled to recover the amount as prayed for. The plaintiff’s conduct was also held to be such as would disentitle him for the discretionary relief of injunction. Mr. Harsh Khanna, learned counsel for the plaintiff has argued that the Court below has erroneously held that the agreement Ext.PA is shrouded by suspicious circumstance and, therefore, erred in not relying upon the same. Mr. Thakur has supported the judgment for the reasons set out therein and has vehemently argued that the plaintiff, who was driver, in fact had no locus to maintain the suit. I have heard the learned counsel for the parties and perused the record. In order to prove its case, the plaintiff has examined himself as PW-1, Shri Madan Lal (PW-2), Shri Mahender (PW-3), Shri Basant Kumar (PW-4) and Shri Vibhu Benal (PW-5) and have proved on record the purported agreement for sale of the vehicle Ext.PA, copy of the legal notice Ext.PB, reply to the legal notice Ext.PD and the General Power of Attorney Ext.PE. In rebuttal, defendant No.1 has examined himself as DW-1, Shri Joginder Kumar (DW-2), Shri Tehal Dass (DW-3) and Shri N.N.Sharma (DW-4). Agreement Ext.PA and GPA Ext.PE purportedly executed by defendant No.1 have been placed on record by PW-1. The Court below, 4 after carefully examining the statements of the parties found that agreement Ext.PA was shrouded by suspicious circumstance and has assigned ten reasons. The same are reproduced as under:- “Firstly, according to the plaintiff the defendant No.1 had purchased the stamp papers and the matter was got typed in his presence and in the presence of the witnesses as dictated by Shri Sudhir Thakur, Advocate, who has not been examined in this case. Whereas according to the Typist Shri Joginder Kumar Gupta DW-3 did not type the aforesaid matter on his Type-writer in the presence of the parties but the draft entrusted to him by Shri Sudhir Thakur, Adv. And was returned to him after doing the needful on his computer. Secondly, the stamp papers are alleged to have been purchased on 11.2.2002 by defendant No.1 but his signatures on the reverse side of the stamp paper did not find mention. Further according to the plaintiff after purchasing the stamp papers the matter was typed on it is also belied in view of the statement of Shri Joginder Gupta DW-3. Thirdly, according to the plaintiff at that time when defendant took the possession of the truck Shri Basant Kumar was the driver and Shri Raju was the cleaner. According to Shri Basant Kumar though he was driver but Bahadur a Nepali was the cleaner, who has also not been examined to substantiate this fact. Fourthly, the possession of the said truck is alleged to have been taken by Shri Ajay Kumar Sharma, defendant on 21.5.2002 from his village Domehar. But according to PW-4 Shri Basant Kumar when he returned from leave, in the end of March he came to know that the vehicle was taken by the defendant is also contrary to the version of the plaintiff. Fifthly, the plaintiff has stated that he had paid five installment to defendant No.2 but defendant No.2 when stepped into witness-box as DW-4 has clearly stated that neither the plaintiff nor any other person has deposited any 5 installment with him for Shri Ajay Sharma. Sixthly, the plaintiff is stated to have taken loan from various persons including one lac from Gramin Bank but none of the persons from whom the loan was taken by him nor any document from the bank have been produced by him. Even the document for raising the loan after mortgaging his property has not been reduced. Seventhly, according to plaintiff he had purchased the stamp papers for the agreement on the same day when it was executed. Perusal of the document shows that it has been purchased in the name of Shri Ajay Sharma by the plaintiff on 11.2.2003 whereas PW-3 Shri Mohinder Singh in his cross-examination has stated that Shri Ajay Sharma had purchased the stamp papers and these were in his hands. Eighthly, if the matter alongwith the documents were handed over by Shri Sudhir Thakur, Advocate, to Shri Joginder Kumar Gupta DW-3 on 11.3.2003, then according to Shri Gupta these were returned to Shri Sudhir Thakur on next day i.e. on 12.3.2002 whereas the date of notarizing the agreement and General Power of Attorney is 13.3.2002, which is the same for signing and notarizing the said documents, by the parties alongwith witnesses but they have not stated to have visited more than once in the court complex. Ninthly, Shri Madan Lal witness has stated that a person nick-named Kaka and also that balance amount of Rs.20,000/- was paid to the defendant no.1 in his presence but even according to the plaintiff he had not paid balance amount of Rs.20,000/- as it was agreed to be paid after the agreement Ext.PA. Lastly, PW-3 Shri Mohinder Singh has stated in his cross-examination that he called Shri Madan Lal PW-2 from the Taxi Stand to witness the transaction whereas Shri Mohinder Singh PW-4 in is cross-examination has stated that he had called Shri Madan Lal from the office during the day time as already discussed earlier. Thus both these 6 statements are contradictory to each other, raising a doubt to their testimonies.” During the course of hearing, learned counsel for the plaintiff could not show from the record as to how the reasons assigned by the Court below were either incorrect or not borne out from the record. Statements of the plaintiff’s witnesses PW-2, PW-3 and PW- 5 are contradictory in nature. The contradiction with regard to the place, the time and the date of purchase of the stamp paper, the execution of the agreement and also the attestation of the same by the Notary Public is writ at large. Further testimony of DW-3, the alleged witness to the agreement is vague and, therefore, cannot be believed to be true. The defendants’ witness DW-4 has proved on record that vehicle was financed by defendant No.3 and it was defendant No.1 who had been paying the installments of the loan amount and no other person ever deposited any amount towards the same. There is no cross-examination on this point. In terms of clause 3 of agreement Ext.PA the purchaser was to pay the amount to the Financer, which was not done in the present case. The defendant No1 has also proved that the vehicle, financed through defendant No.2 by defendant No.3, was managed by him. The plaintiff took the vehicle to Bihar and returned after 1 ½ months and without rendering any accounts handed over the keys when it was noticed that the vehicle had not only been seriously damaged but parts thereof were also replaced and removed. The fact that the plaintiff was a driver in fact stands proved by the plaintiff’s own witness PW-5. 7 I have no reservation in holding that the Court below has, after appreciating the entire material on record, rightly come to the conclusion that there is no valid and binding agreement between the parties, and the same was never acted upon by them. In the absence of legally enforceable right, the plaintiff’s suit qua the second relief of permanent prohibitory injunction was also rightly rejected by the Court below. I may record that in terms of application under Order 41 Rule 27, CPC being CMP No. 552 of 2003, endeavour was made to prove on record certain handwritten receipts alleged to have been issued by defendant No.2 to prove that terms of agreement in fact were complied with. A prayer has also been made by Mr. Khanna to send these documents to handwriting expert as per Section 45 of the Indian Evidence Act. I am not inclined to allow the application for the simple reason that there is nothing on record to show that in spite of exercise of due diligence, the documents were neither in the plaintiff’s possession nor in his knowledge and, therefore, could not be produced at the time when the decree was passed. It is not that the Court below has refused to admit or examine the request which is now being made by the plaintiff. In fact the plaintiff had adequate opportunity of not only proving his case but also meeting the case set up by the defendant. Further the Court below itself has held that the defendant had denied the signatures on the document and, therefore, it was incumbent upon the plaintiff to have led satisfactory evidence to prove the execution of the document already on record, which was not done by him. The Court below has observed that it was not for the defendant to call an expert to support the case of the plaintiff. It is in this background the plaintiff is trying to fill in the lacuna. The application (CMP No.552 of 2003) is, therefore, dismissed. 8 For the aforesaid reasons and also for the fact that no ground for interference is made out. I find no illegality, irregularity, infirmity or perversity in the impugned judgment. The appeal is accordingly dismissed. 11th September, 2008 (Sanjay Karol), (C) Judge.