Rajesh Kumar v. Subhash Chand

CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Vikram Singh, Advocate for the appellant. Rakesh Kumar Garg, J.(Oral) CM No.3383-C of 2010 Application is allowed subject to all just exceptions. RSA No.1107 of 2010 (O&M) This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit for recovery filed by the plaintiff-Sardari Lal on account of rent for the use of truck No.HYE-6078, has been decreed. As per the averments made in the suit, the plaintiff-Sardari Lal was the owner of truck bearing No. HYE-6078. On 27.11.2005, an agreement was entered into by said Sardari Lal (plaintiff i.e. predecessor- in-interest of respondent-Subhash Chand) with defendant-Rajesh Kumar by virtue of which he had taken the truck in question at a monthly rent of Rs.6,000/-. The possession of the truck was handed over in good condition and it was agreed that the defendant would return the truck in the same condition. The defendant plied the truck for one year but did not pay the rent. The defendant without informing the plaintiff had parked the truck in a damaged condition outside the house of one Gopal Dass and also handed over the keys to a child. On the aforesaid averments, a suit for RSA No.1107 of 2010 (O&M) 2 recovery of a sum of Rs.1,50,000/- as damages caused to the truck plus Rs.72,000/- as rent for one year was filed. Upon notice, the suit was contested by the defendant stating that no such agreement dated 27.11.1995 was ever entered into between the parties. It was further averred that the son-in-law of the plaintiff had taken the signatures of the defendant on some blank papers and the same were handed over to the plaintiff who then misused those papers. It was also averred that actually the plaintiff had taken some money from the defendant as loan and in lieu of that loan, the plaintiff had handed over the said truck to the defendant as security. After returning the loan amount to the defendant, the plaintiff and his son-in-law had asked the defendant to park that truck outside the house of one Gopal Dass in his sapurdari. When the truck was parked, no loss, as alleged by the plaintiff, was caused. Rest of the averments were denied and dismissal of the suit was prayed for. On consideration of the evidence and after hearing learned counsel for the parties, the suit of the plaintiff was decreed towards the use of truck for a sum of Rs.72,000/- along with interest @ 9% per annum w.e.f. 27.11.1995 till its realization. However, no amount was granted on account of damages caused to the truck. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the Lower Appellate Court. The plaintiff also preferred cross-objections against the finding in regard to non-grant of relief of compensation for damages caused to the truck. The Lower Appellate Court vide impugned judgment and decree dismissed the appeal as well as cross-objections, filed by the parties respectively. Still not satisfied, the appellant, who is LR of the defendant, has approached this Court. RSA No.1107 of 2010 (O&M) 3 As per the plaintiff's case, he lent his truck at a monthly rent of Rs.6,000/- to the defendant and after expiry of one year, the defendant had abandoned the truck in a damaged condition without informing the plaintiff. The defendant has admitted that the truck was in his possession. The dispute in the present case was with regard to the arrears of rent in question which the defendant had undertaken to pay on the basis of agreement Ex.P-4. The plaintiff by examining one of the attesting witnesses has initially discharged his burden to prove the execution of agreement Ex.P-4. The defendant has not led any evidence which could show that agreement Ex.P-4 does not bear his signatures. A bare denial of his signatures on an instrument does not absolve an executant of his liability fastened with the execution of the document. The only argument raised before this Court is that the plaintiff had not stepped into the witness-box to support his case and Subhash Chand-PW-2, who was his attorney was not competent to make a statement on his behalf and thus, there is no evidence on record to prove the case of the plaintiff-respondent. In support of his case, learned counsel for the appellant has cited Janki Vashdeo Bhojwani v. Indusind Bank Ltd. 2005(1) RCR (Civil) 240, wherein it was observed that the power of attorney holder on behalf of a party cannot be allowed to appear and depose as a witness on behalf of the principal, which is not in his personal knowledge. He can appear only as a witness in his own capacity to depose with regard to the acts done by him on behalf of the principal. If the party does not depose personally and appears for cross-examination, he will be deemed to have failed to prove his case. Thus, it was argued that in view of the aforesaid, the judgment and decrees of the Courts below are liable to be set aside. I have heard learned counsel for the appellant. RSA No.1107 of 2010 (O&M) 4 Non-appearance of the plaintiff in the witness-box has been duly explained by his general power of attorney Subhash Chand by proving that the plaintiff was not in a position to move about or travel because of his illness. Question as to draw an inference arises only when there is no evidence on record to prove the point in issue. The case in hand is not a case where non-appearance of the plaintiff would call upon the Court to raise an adverse inference against him and this circumstance alone is not enough to discard his other evidence so produced or to draw an adverse inference against the said defendant. Here in the present case, non- appearance of the plaintiff as such, has not caused any fatal consequence upon the case of the plaintiff. The authority titled as Janki Vashdeo Bhojwani's case (supra) is distinguishable from the facts of the present case as in the said authority, there were few facts which were solely in the personal knowledge of the party. It was thus, held that in such circumstances, where any knowledge of a fact is in the personal knowledge of the party, he should come to depose on the same. In the facts of the present case, there was nothing personal which was required to be deposed by the plaintiff, except the contents of Ex.P-4. So, in these circumstances, non-appearance of the plaintiff cannot be held to be fatal and particularly when it has been duly explained by PW-

2. In this view of the matter, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. May 26, 2010 (RAKESH KUMAR GARG) JUDGE RSA No.1107 of 2010 (O&M) 5