Mahendra Prasad Singh v. Most Rajo Devi

9. Asha Devi w/o Sri Ram Binod Kumar resident of Village Basti Barhauna PS Mohiuddin Nagar Dist. Samastipur 10. Urmila Devi w/o late Naresh Singh resident of Village Baraipura Nayanagar PS Nayanagar Dist. Samastipur 11. Girish Devi w/o Shri Shambhu Singh resident of Village Khanjahanpur PO and PS Cheria Bariarpur Dist. Begusarai

12. Daizy Devi w/o Pankaj Kumar Singh resident of Village Amba PO Amba PS Teghra Dist. Begusarai Defendants – Respondents 3rd party-Respondents 3rd party ----------------------- For the appellant: Mr Bhupendra Narain Sinha, Advocate Mr Shailendra Kumar, Advocate ------------------- 06/

11.02.2010 Heard learned counsel for the appellant.

2. This second appeal has been filed by defendant first party- appellant-appellant challenging the judgments and decree of both the learned courts below.

3. The matter arises out of Title Suit no.107 of 1981(27 of 1985) which was filed by the plaintiff-respondent first party for rendition of account of tractor in question against the defendant- appellant for the period - 2 -

01.07.1980 till the account is settled and for discharging defendant second party as co-hirer and for other ancillary reliefs. The said suit was decreed on contest by the learned Additional Subordinate Judge I, Begusarai vide his judgment and decree dated 31.03.1987.

4. Against the aforesaid judgment and decree of the learned trial court, defendant first party- appellant filed Title Appeal no.08 of 1987 which was dismissed on contest by the learned Additional District Judge- cum- Fast Track Court II, Begusarai, vide his judgment and decree dated

23.06.2007. Against the aforesaid judgments and decree of the learned courts below, the instant second appeal has been filed.

5. Learned counsel for the appellant vehemently challenges the judgments and decree of the learned courts below claiming (i) that the learned court of appeal below has failed to consider the evidence adduced by the parties both oral and documentary, specially the vital evidence exhibit E ; (ii) that the learned court of appeal below has failed to consider the additional evidence of the defendant-appellant as per direction of the High Court vide order dated 25.07.2001 passed in Civil Revision No. 4071 of 1997; (iii) that the judgments and decree of the learned courts below are against the undertaking given by the plaintiff before the High Court which is apparent from order dated 24.09.1983 passed in Civil Revision No. 1043 of 1982; (iv) that the learned courts below have not considered the period during which the tractor in question had remained in custody of the plaintiff and defendant no. 1; and (v) that the learned court of appeal below has wrongly held that at the time the defendant-appellant renders account, the lower court will look into the relevancy of the said order of the High Court and the question related to - 3 - the working condition or the repair of tractor in question and the time taken in making it serviceable will be considered at the same time.

6. So far claim of the parties is concerned, it is not in dispute that the tractor in question was hire purchased from the State Bank of India for which an agreement was executed between the plaintiff and defendant nos. 1 and 2 and at the time of said purchase a deposit of Rs 25,000/- in the State Bank of India was made and the State Bank of India advanced loan of Rs 50,000/-. Now the question is as to whether the plaintiff-respondent is merely name lender to the said transaction or he is a party to the transaction and as to what is the extent of the partnership according to the agreement. Both the learned courts below, after considering the pleadings and evidence of the parties, have affirmed and decreed the claim of the plaintiff.

7. So far question of non-consideration of the evidence is concerned, from the facts and circumstances, it is quite apparent that in view of the aforesaid admitted position the matter was dependent upon the documentary evidence adduced by the parties. The learned trial court has considered the said evidence of the parties in paragraphs 9 to 15 of its judgment whereas the learned court of appeal below has also considered the said evidence in paragraph 12 of its judgment specially referring to exhibit E and only thereafter the learned courts below have specifically come to the conclusion that exhibit E showed that defendant no.1 took delivery of the tractor in question on behalf of all three parties to the agreement. In the said circumstances, the learned courts below have very carefully considered the documents adduced by the parties on the issues involved and only thereafter have arrived at specific findings in that regard. - 4 -

8. So far the second question with regard to order of this court dated 25.07.2001 passed in Civil Revision no. 4071 of 1997 is concerned, it is quite apparent that the defendant-appellant had produced some documents as additional evidence before the lower appellate court which rejected the said application and against the said order of rejection the defendant-appellant filed Civil Revision no. 4071 of 1997 and while dismissing the said civil revision on 25.07.2001, this Court made observation that if additional evidence is denied, there is no occasion to hold the proceeding at the trial stage and these grounds can only be raised in appeal depending on the decision of the suit. The said order was with respect to any matter in a proceeding inter-party. However, apart from the said point there was list of additional evidence of the defendant-appellant which included several papers like receipts etc but there is nothing on record to show that the defendant-appellant ever produced any formal witness to prove those papers for making out additional evidence. In the said circumstances, there was no occasion for the learned court of appeal below to consider the said evidence or to remand the case to the trial court for fresh decision which would have only meant further delay of the matter unnecessarily.

9. So far the third question of reliance of the learned counsel for the appellant on order of this court dated 24.09.1983 is concerned , it is quite apparent that the said civil revision was filed against an interlocutory order dated 12.06.1982 passed in the suit and was without any prejudice to the rights of any party. Furthermore, there is nothing to show that the defendant-appellant who is relying upon the said document was ever ready and willing to act upon the same and thus it was only temporary arrangement - 5 - made during the pendency of the suit. Hence at the time of final judgment in the suit or appeal, there was no occasion for the learned courts below to rely upon the said document.

10. So far the fourth and fifth questions of possession raised by the appellant are concerned, the learned courts below have arrived at concurrent findings of facts based on reliable materials and valid evidence that the defendant-appellant was in possession of the tractor in question since the date of its purchase. This court does not find any reason or material to take a different view.

11. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. shahid (S.N.Hussain, J)