RSA No. 4588 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 19.5.2010. Mohinder Singh --Appellant vs. M/S.Kaka Ram Om Parkash Commission Agents, Jagraon Mandi,District Ludhiana --Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.S.S.Walia,Advocate, for the appellant Mr.B.R.Mahajan,Advocate,for respondent Nos. 1 to 3 Rakesh Kumar Jain, J, Defendant is in second appeal against judgment and decree of both the Courts below, whereby suit of the plaintiff for recovery has been decreed. In order to recapitulate the facts, it would be suffice to reproduce the facts noted by the learned trial Court:- “Plaintiff's case is “that the defendant borrowed a sum of Rs.10,000/- on 8.11.1995, Rs.3000/- on 22.11.1995, Rs.1000/- on 24.11.1995, Rs.8000/- on 05.12.1995, Rs.2000/- on 08.12.1995, Rs.2100/- on 27.12.1995, RS.31,000/- on 01.01.1996, Rs.20,000/- on 08.01.1996, Rs. 2000/- on 09.04.1996 and Rs.300/- on 18.04.1996 from the plaintiff and at RSA No. 4588 of 2009 (O&M) 2 the time of taking the amounts, the defendant was told that the rate of interest 2.50% per month would be chargeable which would be calculated on six monthly basis to which the defendant orally agreed and committed to pay the same. The defendant further promised that the defendant shall be bringing his crop to the shop of the plaintiff for sale and the principal amount and interest shall be adjusted thereto. The defendant brought crop worth Rs.8761.31 on 22.01.1996, but the defendant opted to collect the amount from the plaintiff on the same date i.e. 22.01.1996 on the pretext of some urgent need and thereby the plaintiff paid the above said amount of Rs.8761.31 to the defendant keeping his necessity. The defendant again brought worth Rs.32,322.60 on 27.04.1996 and asked the plaintiff to adjust the same against the outstanding amount of loan/interest and accordingly, the plaintiff adjusted the above said amount and a balance of Rs.47,077.40 was left against the account of the defendant on 27.04.1996. After 27.04.1996, the defendant did not opt to bring his crop to the shop of the plaintiff and defendant took care to pay the balance amount of loan along with agreed rate of interest to the plaintiff. The plaintiff approached the defendant in the month of May, 1996 and requested for clearing the outstanding amount of loan along with interest, but the defendant failed to do the needful. The plaintiff served a notice on 11.06.1998 through registered post regarding the outstanding amount and after receiving the notice, the defendant approached the plaintiff and requested to charge simple interest at the rate of 2% per mensum on the unpaid amount and defendant further promised to pay the same within a few days, but inspite of the promise made by the defendant, he has not paid any amount out of the amount of Rs.47,077.40”. Notice in the suit was given to the defendant who did not RSA No. 4588 of 2009 (O&M) 3 appear and was proceeded against exparte. The plaintiff examined Som Nath as PW1, Naresh Goyal as PW-2 in his exparte evidence and on the basis of which the learned trial Court vide its judgment and decree dated 24.2.2006 decreed the suit of the plaintiff to the effect “that it is ordered that the suit of the plaintiff is decreed for recovery of Rs.55085.40 ps. with proportionate costs of the suit (Rs.47077.40 ps) as principal amount and Rs.8008/- as interest calculated at the rate of Rs.6% per annum from 8.11.1995 till the date of filing of the suit). Plaintiff is entitled to interest at the rate of Rs.6% per annum from the date of filing of the suit till realisation of the decreetal amount, on the principal amount only”. The defendant then filed an application under Order 9 Rule 13 read with Section 151 of Code of Civil Procedure, 1908 (for short,'CPC') on 17.7.2000 for setting aside the exparte decree dated 24.2.2000. In the said application, notice was issued . After filing of the reply dated 07.4.2002, the trial Court framed the issues. Ultimately, the ex-parte decree was set aside. The defendant filed his written statement on 27.11.2003 in which the case set up by the defendant is ”that the plaintiff is carrying on the business of commission agent being the proprietor of firm M/s Kaka Ram Om Parkash and the defendant used to sell his produce through the plaintiff. The defendant used to receive the amount from the plaintiff according to his needs out of the amounts lying credited/deposited with the plaintiff on account of sale price of his produces. The defendant never agreed to pay any interest to the plaintiff since he used to maintain credit/deposit on account of sale of his produce with the plaintiff and used to receive the amount from the plaintiff as per his needs and requirement. It is further added that on 18.04.1996 the defendant sold 121 bags and 57 Kgs. RSA No. 4588 of 2009 (O&M) 4 of wheat totaling 115 quintals 52 Kgs. to the plaintiff at the rate of RS.380/- per quintal amounting to Rs.43,897.60 vide a valid receipt no.433 dated 18.04.1996. The defendant further sold 39 bags of wheat vide receipt No.444 dated 29.04.1996 and 56 bags of wheat vide receipt no.445 dated 29.04.1996 totaling 90 quintals 25 Kgs. to the plaintiff at the rate of Rs.380/- per quintal amounting to Rs.34,295/-. However, a composite receipt no.92 bearing book no.5 was issued by the plaintiff in which he wrongly mentioned only 90 bags of wheat instead of 95 bags of wheat and he also mentioned the wrong date 27.04.1996 instead of 29.04.1996 and also deducted an amount of Rs.167.40 on account of labour charges. The total amount against the above mentioned produces sold by the defendant to the plaintiff comes out to Rs.78,192.60 out of which the plaintiff has not paid any amount to the defendant and the same is still lying credited/deposited with the plaintiff. The plaintiff is liable to pay the aforesaid amount to the defendant after deducting the amount standing against the name of the defendant as on 31.03.1996 after making necessary correction in the accounts. The defendant is not liable to pay any amount to the plaintiff, rather the plaintiff has failed to make the final settlement of account despite the repeated requests and demands of the defendant. It is further submitted that the reply of the notice was also given on 18.06.1998 and prayed for dismissal of the suit”. On 27.11.2003, the case was adjourned to 24.12.2003 for filing replicatiom. The same was not filed. However, the following issues were framed:- 1. Whether plaintiff is entitled to recover Rs.85,128.26 as prayed for ? If so to what extent and at what rate of interest ? OPP 2. Whether the suit is not maintinable in the present form as alleged ? OPD 3. Whether plaintiff has not come to the Court with clean hands ? OPD RSA No. 4588 of 2009 (O&M) 5 4. Whether suit is barred by limitation ? OPD. 5. Relief: The plaintiff who had earlier examined only two witnesses namely, Som Nath as PW-1 and Naresh Goyal as PW-2 in their examination in chief, made the following statement on 10.1.2005:- “Counsel for the plaintiff made statement today that the statements of Pws Som Nath and Naresh Goyal have already been recorded and the same be read in evidence as examination-in- chief. At request of counsel for parties, to come up on 16.3.2005 for cross examination of the Pws at own responsibility. It shall be last opportunity” On 11.10.2005, both the witnesses i.e. PW-1 and PW-2 were cross examined by the defendants and the case was adjourned to 19.10.2005 on which date following order was recorded:- “Cross examination of two PWs have been recorded. No other PW is present. To come up on 19.10.2005 for remaining evidence of the plaintiff . It shall be the last opportunity” On 19.10.2005, following order was passed:- “Plaintiff has closed his evidence . To come up on 25.10.2005 for DWs” Defendants examined Sewa Singh as DW-1, himself appeared as DW-2 and also examined Charan Singh as DW-3. He has tendered some documents before closing his evidence. After considering the entire evidence on record, the trial Court vide its judgement and decree dated 31.1.2006 decreed the suit for recovery of Rs. of Rs.55085.40 ps.with proportionate costs of the suit (Rs.47077.40 ps) as principal amount and Rs.8008/- as interest calculated at the rate of Rs.6% per annum from RSA No. 4588 of 2009 (O&M) 6 8.11.1995 till the date of filing of the suit). Plaintiff is entitled to interest at the rate of Rs.6% per annum from the date of filing of the suit till realisation of the decreetal amount, on the principal amount only”. The defendant filed the first appeal in which it was alleged that the statements of the witnesses of the plaintiff recorded in examination-in- chief, became inadmissible after the exparte decree was set aside. He relied upon a Full Bench decision of the Amdhra Pradesh High Court in the case of Aziz Ahmed Khan Vs. I.A. Patel A.I.R 1974 Andhra Pradesh 1. Learned First Appellate Court rejected the argument and dismissed the appeal vide judgment dated 22.9.2006 observing thus:- “Learned counsel for the plaintiff made statement that statement of Rajesh Kumar and Naresh Kumar have been recorded and the same be read in evidence as examination-in- chief and at their request the statements recorded already were ordered to be considered and the case was adjourned for next day for cross-examiation. At that time the counsel for the appellant did not raise any objection. Moreso, he cross- examined the witnesses after they appeared in the Court and even at the time of cross examination, no such objection was raised by the learned counsel for the appellant. The law referred by the learned counsel for the appellant is not applicable to the facts of the present case as in the present case no decree was passed and the order passed was ordered to be set aside. Separate statement was recorded to consider the statements given by the two witnesses as the statement by the witnesses after the exparte order was set aside. Proposition of law is not disputed that the witnesses cannot RSA No. 4588 of 2009 (O&M) 7 be cross examined until and unless they are tendered in examination-in-chief. But in the present case the statements were already recorded and no objection was raised and at this stage, when the witnesses have been cross-examined, without any objection it cannot be said that their statements cannot be read”. Still aggrieved, the defendant/appellant has come up in second appeal before this Court in which two questions of law have been raised : (i)whether evidence recorded by the trial Court in the exparte decree would survive after the said decree is set aside or said evidence would disappear from the record and the suit could not have been decreed in the absence of examination-in-chief of the witnesses of the plaintiff (ii) whether the learned Court below has been justified in relying upon bahi entries produced by the plaintiff without examining the person in whose presence, the amount was received or the author of the entries ? Mr.S.S.Walia, learned counsel appearing for the appellant has vehemently argued that the evidence recorded in the absence of the defendant in exparte decree, cannot be looked into after the exparte decree is set aside as the said evidence is erased from the record. In this regard, he reiterated the judgment of the Full Bench of Andhra Pradesh High Court in the case of Aziz Ahmed Khan (Supra). On the other hand, Mr.B.R.Mahajan, learned counsel appearing on behalf of the respondent has relied upon a Full Bench decision of Gujarat High Court in the case of Shah Bharatkumar Premchand Vs. M/s. Motilal and Bharulal, AIR 1980 Gujarat 51, in which the question posed before the Full Bench was as to:- RSA No. 4588 of 2009 (O&M) 8 “whether does the law command a purposeless re-enactment of a Court scene by re-recording the evidence of a witness even when the defendant after the setting aside of an ex- parte decree refuses to cross-examine the witness upon being offered for cross-examination ? Or remains absent ? In this regard, Madras High Court was against while Andhra Pradesh High Court was in favour, but Division Bench of Gujarat High Court referred the matter to the Full Bench. In this case, after taking into account the Full Bench judgment of Andhra Pradesh High Court in Aziz Ahmed Khan's Case (Supra) and a decision of Madras High Court in the case of Doraiswami Vs.Palaniandi AIR 1956 Madras 633, the Full Bench of Gurajat High Court has held:- “To summarize the situation, the view taken by the Andhra Pradesh High Court in Aziz Ahmed's case mainly based on two grounds: (1) that the evidence recorded in the absence of the defendant prior to the setting aside of the ex parte decree at a point of time when the defendant was prevented by sufficient cause from remaining present becomes non-existent or non-est when the decree is set aside upon the Court taking the view that there was sufficient cause for absence and (2) such evidence is rendered illegal or inadmissible by reason of Section 33 of the Evidence Act. In our opinion, there is no warrant in any provision of Civil Procedure Code or the first principles of law for upholding the first proposition, namely, that such evidence would become non-est or non-existent to the eye of law. So far as the second proposition is concerned, there is nothing in Section RSA No. 4588 of 2009 (O&M) 9 33 which makes such evidence inadmissible. In fact the principle underlying Section 33 is respected rather than violated when the witness is offered to the defendant for cross-examination and he is afforded an opportunity which he could not avail of on account of his absence. There is nothing in Section 33 which requires re-recording of the evidence even when the defendant refuses to avail of the opportunity to cross-examine or remains absent”. Adverting to the facts of the present case, not only the said witnesses of the plaintiff have been cross examined by the defendant but also no objection was raised when a statement was suffered by the learned counsel for the plaintiff that he would rely upon the statements of his witnesses who have already been examined when the exprte decree was passed. Thus, it does not lie in the mouth of the defendant to agitate about the inadmissibility of the evidence recorded in examination-in-chief of the witnesses of the plaintiff during the trial of the suit which was decreed exparte. Thus, I hold that the statements of the witnesses recorded in examination-in-chief during the trial of a suit which is decreed ex-parte would not be erased from the record. After the exparte decree is set aside, the defendant would be entitled to cross examine the said witnesses and in case, he cross examines the said witness, refuses to cross examine the said witness or fails to cross examine the said witness, he would not be allowed to raise grievance that the said evidence recorded in examination-in-chief in his absence while he was exparte, would be inadmissible in evidence. Insofar as the second question is concerned, learned Court below has decided the said question on the basis of evidence on record and RSA No. 4588 of 2009 (O&M) 10 has observed as under:- “In the present case the account books have been produced on record by the respondent/plaintiff and in his statement he has proved the same. The examination of the clerk who has maintained the account books is not necessary as the appellant himself has admitted in his cross- examination his signatures on Ex.P-1 to Ex.P-1/J. In his examination-in- chief he has stated that he has sold 121 bags and 57 Kg of wheat amounting to Rs.43,897-60 vide receipt on 18.04.1996 and had sold wheat on 29.04.1996 vide two receipts totally 90 quintal 25 kgs to the respondent/plaintiff firm for Rs.34,295/-.” Thus, in view of my above discussion, I do not find any merit in the present appeal and as such, the same is hereby dismissed, however, without any order as to costs. 19.5.2010 (Rakesh Kumar Jain) RR Judge