1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO.268/2011 Sheikh Salim Sham Mohammad ...Versus... Santosh s/o Shankarappa Shingare Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. [Shri Rohit Joshi, Adv. for appellant] CORAM : A.B. CHAUDHARI, J. DATED : 21.09.2011. In a suit for recovery of hire charges for giving a truck on hire filed by the plaintiff, the Courts below have concurrently found that the claim made by the plaintiff was proved on the basis of the evidence that was tendered by the plaintiff before the Court. Learned Counsel for the appellant argued that the ground of the plaintiff to make a claim was the agreement which has been wrongly referred to as Exh.19 by the learned appellate Court, but then according to him, Exh.19 is a list and not the document and therefore, the Courts below have committed an error in treating Exh.19 as a proved document of agreement between the parties and that therefore, constitutes a substantial question of law because it cannot be said that the plaintiff proved the claim made by him. 2 I have gone through the impugned judgments and decree recorded by the Courts below. I have also with the assistance of learned Counsel for the appellant gone through the evidence of the plaintiff. It is true that the agreement has not been exhibited and Exh.19 is the list of the documents and not the agreement. But then perusal of the evidence of plaintiff to my mind shows that he has proved that there was agreement between the parties to hire the truck at the rent of Rs.5,000/- per month and that evidence does not refer to any written agreement. That apart, the cross-examination shows that the agreement was written by the father of the plaintiff but then the Courts below have chosen to place reliance on the evidence of the plaintiff. I have checked the cross-examination of the plaintiff and I find that the material portion in the evidence has not been put to challenge in the cross-examination. Not only that the appellant/defendant has not entered into witness box in order to disapprove whatever was proved by the plaintiff. Therefore, the Courts below have on preponderance of probabilities concluded that the plaintiff proved his claim. Learned Counsel for the appellant also argued that in the light of the provisions of Sections 91 and 92 of the Indian Evidence Act, when the documentary evidence was relied upon by 3 the plaintiff, oral evidence could not have substituted the same. It is not possible to accept the said contention since the case of the plaintiff was not merely based on the documentary evidence. It is seen and on the contrary oral evidence shows that the agreement was therefore entered into between the parties for payment of hire charges. In that view of the matter, I do not find any substantial question of law is involved in the second appeal. Second Appeal is, therefore, dismissed. No order as to costs. JUDGE ssw