w w w . L a w y e r S e r v i c e s . i n

Madhwa Nand Semwal v/s Girish Gupta

Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

Company & Directors' Information:- GIRISH COMPANY LIMITED [Dissolved] CIN = U99999MH1939PTC003014

    Regular Second Appeal No. 517 of 2007

    Decided On, 09 June 2020

    At, High Court of Himachal Pradesh


    For the Appearing Parties: Seema K Guleria, Romesh Verma, Advocates.

Judgment Text

1. This regular second appeal has been preferred against the judgment of reversal, whereby learned District Judge, Shimla, vide judgment dated 01.09.2007, passed in Civil Appeal No. 23-S/13 of 2007, titled as Greesh Gupta vs. Madhwa Nand Semwal, has set aside the judgment and decree dated 01.03.2007, passed in favour of the plaintiff (appellant herein) by learned Civil Judge (Junior Division), Court No.(V), Shimla, H.P., in Civil Suit No.8-1 of 2005, titled as Madhwa Nand Semwal vs. M/s Girish Gupta, wherein plaintiff was held entitled for recovery of Rs.1,03,000/- from defendant. Appellant is plaintiff and respondent is defendant in the Civil Suit. For convenience in this judgment they would be referred as plaintiff and defendant respectively.

2. On 12.12.2007, appeal was admitted on following substantial questions of law:-

"1. Whether the onus to prove a facts can be burdened on plaintiff/appellant when the said fact is alleged by defendant/respondent and the defendant has failed to prove the fact by leading any cogent evidence?

2. Whether even though the defendant/ respondent has failed to prove the fact that he used to make payments of material by producing any documentary or oral evidence on record can Ld. Court base its findings on sole oral submission/statement of defendant/ respondent?

3. Whether written statement, which has not been duly supported with an affidavit as required by law be given any credibility for the averments made therein and can Ld. Court base its findings on those averments which is only supported by oral testimony of the respondents?"

3. During hearing, on perusal of the record, it is found that learned District Judge has misconstrued, misread and ignored the oral as well as documentary evidence on record, which has resulted into perversity in the impugned judgment. Therefore, following question of law is also framed:-

4. Whether learned District Judge has misconstrued, misread, mis-appreciated and ignored the oral as well as documentary evidence on record, resulting into perversity in the impugned judgment?

4. It is the case of the appellant (hereinafter referred to as plaintiff) that on demand raised by the respondent (hereinafter referred to as defendant) he had supplied 81 trucks of sand for construction work undertaken by the defendant and the rate was fixed as Rs.2100/- per truck, including cost of the sand. Plaintiff has also placed on record 81 bills alleged to have been issued on behalf of the defendant for receipt of sand. According to the plaintiff, against total amount of Rs.1,70,100/-, defendant had paid only Rs.65,000/-and thus suit for recovery of remaining amount of Rs.1,05,100/-.

5. In written statement, it is denied that defendant had ever agreed for supply of sand @ Rs.2100/- per truck and defendant had always hired the vehicles on the basis of transportation charges and value of the goods, transported, was borne by the defendant and he had hired various vehicles at different times, but all those vehicles were hired on the basis of transportation cost and neither rate @ Rs.2100/- per truck was prevalent at relevant time nor there was any occasion for defendant to agree for the same. Even payment of Rs.65,000/- by defendant to the plaintiff has been denied in response to para-4 of the plaint and it was alleged that entire story put forth by the plaintiff is false. Receipt of notice served upon the defendant by the plaintiff has also been denied.

6. Replication to the written statement has also been filed by the plaintiff reasserting the claim put forth in the plaint.

7. On the basis of pleadings of the parties, following issues were framed by the trial Court on 04.07.2005, which read as under:-

"1) Whether the plaintiff is entitled for recovery of Rs.1,05,100/-, as prayed? OPP

2) Whether the plaintiff is estopped from filing the present suit, on account of the his own acts, deeds and conduct, as alleged? OPD

3) Whether the suit of the plaintiff is not maintainable, as alleged? OPD

4) Whether the suit in question has not been filed against proper and authorised person, as alleged? OPD

5) Whether the plaintiff has concealed material facts and not come to Court with clean hands? OPD

6) Relief."

8. Plaintiff, including himself, has examined two witnesses in support of his case and defendant, including himself, has also examined two witnesses.

9. Perusal of issues framed and onus put on parties to prove the same clearly reflects that onus to prove the respective issues has been correctly fixed by the trial Court and there is no defect in determining the onus to prove facts at the time of framing of issues. The substantial question No.1 is answered accordingly.

10. It has been stated by defendant as DW.1 that he used to make payment of the goods directly to the Quarry owner/Incharge, Crusher and Brick-kiln and transporter was only entitled for the payment of transportation charges. In written statement also a passing reference of such practice has been given. In written statement, defendant is silent about the payment of Rs.65,000/- to the plaintiff, but in his deposition in the Court, has claimed that a sum of Rs.65,000/- was paid to the plaintiff as transportation charges of the sand of 81 trucks. It is claimed by the defendant that fare of one truck was ranging from Rs.750/- to Rs.800/-. At the rate of Rs.750/- per truck transportation charges for 81 trucks becomes Rs.60,750/-, whereas at the rate of Rs.800/- it becomes Rs.64,800/-. It is not the case of defendant that Rs.800/- was paid for each truck, rather his claim is that transportation charges per truck were ranging from Rs.750/- to Rs.800/-. In such eventuality, for what purpose the excess amount i.e. Rs.65,000/- was paid by the defendant to the plaintiff is not clear.

11. For evasive reply in the written statement as well as for deposition of defendant in the Court, it is an admitted case that plaintiff had supplied at least 81 truck loads of sand to the defendant, though defendant has tried to avoid his liability by saying that receipts Ex.PW.1/A-1 to Ex.PW.1/A-82 have not been issued by him, but by one Girish Gupta Construction Company and these slips do not bear his signatures. However, he has admitted that on these documents his address has been mentioned. He himself, in examination-in-chief, has stated that he had paid transportation charges of the trucks to the plaintiff. Stands taken by defendant in the written statement as well as in his oral submission are contradictory to each other.

12. Plaintiff, in his deposition as well as in the statement of Laxmi Kant (PW.2), who was his driver, has brought on record the fact that plaintiff had been making payment of sand on the Quarry for the sand and sand was brought from Jaunaji and Deothi Quarries situated in Solan. The said statement is corroborated in the statement of defendant, wherein he has stated that sand for him was brought from Deothi, Solan. Defendant has made an unsuccessful attempt by producing DW.2 Hem Raj to prove that payment of sand was being made directly by the defendant himself. But in cross-examination, this witness has admitted that he was not owner or Contractor of the Quarry, but some Amit Anand was owner of the Quarry and there was no agreement of Amit Anand with him (DW.2). This witness though has stated that they used to maintain record in a register with respect to payments received from the Contractors, but he had not produced any such register or document in the Court to substantiate his oral testimony. Though at one place he has stated that the truck bearing registration number of the plaintiff's truck did not come to his Quarry, but again in the next line he has self stated that vehicle had come. There is no cogent and reliable evidence on record to prove version of the defendant that he used to make payment of sand directly to the Quarry owner or Contractor and for want of such evidence on record, the finding of learned District Judge that the defendant used to pay cost of sand to the Quarry owner directly, is contrary to the evidence on record.

13. Learned District Judge has observed that in general practice transporter is supposed to only transport the goods on behalf of the owner/purchaser and, therefore, very genesis of the case of the plaintiff/respondent seems to be baseless and against the common practice. There is nothing on record wherefrom learned District Judge has drawn inference of existence of such general or common practice. Neither defendant has pleaded such common/general practice nor any evidence to prove the same has been brought on record. Simple claim of the defendant is that he himself used to purchase the sand which was transported in the truck of the plaintiff, but no convincing and reliable evidence has been brought on record to prove this fact. Therefore, learned District Judge has committed mistake of law in referring general/common practice without any evidence. Accordingly, substantial question No.2 is decided in favour of the plaintiff.

14. It is pleaded on behalf of the plaintiff that for want of filing of affidavit in support of written statement, the same has to be discarded and evidence related thereto is not to be read and thus case of the defendant based on such written statement and oral evidence is liable to be rejected.

15. Undoubtedly Order 6 Rule 15(4) of the Code of Civil Procedure (in short 'CPC') provides that person verifying the pleading shall also furnish an affidavit in support of his pleadings and Order 6 Rule 1 CPC provides that "pleading" shall mean plaint or written statement. Definitely the word "shall" in Order 6 Rule 15(4) CPC makes it mandatory to furnish affidavit in support of his pleadings. However, non-filing of the affidavit in support of pleadings may not be fatal in every case.

16. Order VI Rule 15(4) CPC provides that person verifying the pleadings shall also furnish an affidavit in support of his pleadings which is clear in itself that pleadings are different than an affidavit, and affidavit is to be filed in support of pleadings and therefore, affidavit is not part of pleadings but is an independent document to be filed in support of pleading.

17. It is clarified by the Apex Court in G.M. Siddeshwar vs. Prasanna Kumar, (2013) 4 SCC 776, that a plain reading of Order 6 Rule 15 CPC suggests that a verification of plaint is necessary and in addition to verification, the person verifying the plaint is "also" required to file an affidavit in support of pleadings and further that requirement of filing of an affidavit also does not mean that verification of pleadings is incomplete if affidavit is not filed, as the affidavit, in this context, is a standalone document. Therefore, duly verified written statement filed in present case, without accompanying an affidavit, as required under Order 6 Rule 15(4) CPC does not mean that it is incomplete.

18. For application of doctrine of curability on principles contained in CPC, as introduced by the Apex Court in T.M. Jacob vs. C. Poulose and others, (1999) 4 SCC 274, omission in filing the affidavit in support of pleadings is curable.

19. Considering its earlier pronouncement in case Murarka Radbey Shyam Ram Kumar vs. Roop Singh Rathore, (1964) AIR SC 1545, the Apex Court in R.P. Moidutty vs. P.T. Kunju Mohammad and another, (2000) 1 SCC 481 has reiterated that defect in verification is curable defect. Therefore, on the same analogy defect in filing the affidavit or non-filing of affidavit in support of pleadings is also a curable defect.

20. It is also an admitted fact that written statement in present case was filed and accepted by the Court.

21. As discussed supra, affidavit is additional document to the pleadings, but is not part of pleadings. Therefore, nonfiling of affidavit in present case that too when written statement was not only accepted by the Court, but plaintiff had also not objected for acceptance of that written statement for want of filing of affidavit in its support. Now plaintiff cannot be permitted to raise such issue at this belated stage. In present case, after filing of the written statement plaintiff has filed replication thereto and the said replication has also been filed with permission of the Court but without affidavit. The Apex Court in K.Laxmanan vs. Thekkayil Padmini and others, (2009) 1 SCC 354 has held that pleadings as defined under the provision of Rule 6 of Order 1 of CPC consist only of a plaint and written statement and plaintiff can file a replication in respect to the plea raised in written statement which also becomes part of pleadings if allowed to be filed by Court. Order 6 Rule 15(4) CPC requires filing of an affidavit in support of pleadings and thus replication is also to be supported by an affidavit. The plaintiff has also not filed an affidavit in support of his pleadings filed by way of replication.

22. Further, in replication filed by the plaintiff, no objection has been taken with respect to non-filing of affidavit in support written statement and not only defendant has been allowed to lead evidence on the basis of written statement but at the time of leading of evidence by the defendant no such objection has been raised on behalf of the plaintiff. Even during cross-examination of the defendant, his competency to file written statement or deposing in the Court for want of filing of affidavit in support of written statement has not been questioned. Had it been so, defendant would have got chance to cure the defect and in such eventuality failure to cure the defect would have been fatal to defendant. Therefore, in the given facts and circumstances of the present case, this objection is not available to the plaintiff at this stage and thus substantial question No.3 is decided accordingly.

23. Learned District Judge has ousted the plaintiff and reversed the judgment and decree passed by the trial Court by appreciating the evidence in para-25 of the impugned judgment. Perusal of record clearly indicates that his findings in this para are perverse in nature being contrary to the evidence on record. Learned District Judge has observed that plaintiff while appearing in the witness box has clearly admitted that his vehicle was taken by the defendant, whereas in the entire statement of the plaintiff, including his cross-examination, plaintiff has no where stated so. Rather he has stated that vehicle was being driven by PW.2 Laxmi Kant and now it had been taken away by the Company, which does not mean that vehicle is taken away by the defendant. Normally vehicles are taken away by Finance Companies and only in that eventuality owner would say that so and so was driver of the vehicle which has been taken away by Company and therefore statement of plaintiff clearly means that vehicle was taken away by the Finance Company.

24. Learned District Judge has also observed that plaintiff has also admitted that he was not aware about Quarry from where sand was brought by the driver, whereas in crossexamination, plaintiff has clearly stated that sand was brought from Solan. To reject claim of the plaintiff, learned District Judge has also picked one another line from the cross-examination of the plaintiff that he never went in the vehicle which has no concern with the payment against the purchase of sand by the plaintiff to the Quarry owner. It has been held by learned District Judge that sand was not being purchased by the plaintiff but was being purchased by the defendant, but he has not referred any reason or evidence for any such finding.

25. Perusal of statement of DW.1 Girish Gupta, as discussed herein-above, does not inspire confidence for the reason that it is contrary to the stand taken in the written statement. Defendan

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t in reply to para-4 of the plaint has denied its contents, wherein plaintiff had stated that a sum of Rs.65,000/- was paid by the defendant to him and thus the said fact has been denied by the defendant in his written statement. But in his deposition in the Court he has stated that he has paid a sum of Rs.65,000/- for transportation charges to the plaintiff. 26. So far as payment of sand to the Quarry owner is concerned, defendant has examined DW.2 Hem Raj. As discussed supra, he is neither Quarry owner nor the Contractor and has also not produced any record relating thereto. Therefore, learned District Judge has wrongly concluded that it has been proved on record that sand was being purchased by defendant Girish Gupta. 27. Lastly, by referring general practice and common practice without any evidence on record, learned District Judge has given weightage to the statement of defendant which is without any basis. Learned District Judge has picked up selective lines from the statements and has failed to consider the entire evidence in its totality and even the meaning of those lines construed by him is actually incorrect. Therefore, for misconstruction, misreading and mis-appreciation of evidence on record impugned judgment suffers perversity, hence liable to be set aside. Substantial question No.4 is answered accordingly. 28. In view of above findings, impugned judgment and decree passed by learned District Judge, Shimla, is set aside and judgment and decree passed by trial Court is upheld. Plaintiff is entitled to recover a sum of Rs.1,03,000/- with cost. 29. Accordingly, appeal is allowed in the aforesaid terms. Pending application(s), if any, also stand disposed of. Registry to prepare decree sheet accordingly.