1992CLC857 (PLP)

This civil revision is directed against the judgment and decree, dated 27‑5‑1991 by which a learned Additional District Judge at Gujrat dismissed the appeal of the defendant‑petitioner against the judgment and decreed, dated 27‑11‑1990, whereby the learned Civil, Judge, Gujrat, decreed the suit of the plaintiff‑respondent against the defendant‑petitioner for the recovery of Rs.11,700 after the closure of the evidence of the latter under Order 17, rule 3, C.P.C.

2. In a suit brought by the plaintiff‑respondent, he had claimed a sum of Rs.11,700 from the defendant‑petitioner as price of the diesel supplied by him to the latter from time to time. The defendant‑petitioner resisted the suit and on the pleading of the parties the learned trial Judge framed the following issues:‑ (1) Whether the plaintiff is entitled to decree for recovery of Rs.11,400 in the circumstances narrated in the plaint? OPP. (2) Whether the plaintiff has no cause of action and locus standi? OPD. (3) Whether the suit is based on mala fide intention and plaintiff has not come to the Court with clean hands? OPD. (4) Whether the suit has been filed by the plaintiff only to harass the defendant, and hence the defendant is entitled to special cost worth Rs.5,000? OPD. (5) Relief.

3. He, after recording the evidence of the plaintiff‑respondent and closing the evidence of the defendant‑petitioner under Order 17, Rule 3, C.P.C. decreed the suit, vide judgment dated 27‑i1‑1990. The defendant petitioner went up in appeal but there too he remained unsuccessful. He has now invoked the revisional jurisdiction of this Court.

4. It is argued on behalf of the defendant‑petitioner that no issue on merits was framed by the learned trial Court and issue No‑1 is not an issue in the eye of law and for that reason there was no proper trial of the real dispute between the parties. According to the learned counsel, on this point alone the judgments and decrees of the Courts below become unsustainable and the case needs to be remanded for retrial after framing the proper issues. In support of his contention he has placed reliance on 1985 CLC 2028 and 1990 SCMR 1229.

5. It is urged that the absence of the evidence of defendant‑petitioner on account of its closure under order 17, Rule 3, C.P.C. did not absolve the trial Court nor the appellate Court of its responsibility to thoroughly examine the evidence adduced by the plaintiff‑respondent before coming to any definite conclusion one way or other but in the instant case the evidence produced by him was not properly appreciated, rather, inadmissible evidence consisting of photostat copies of certain documents were erroneously admitted into evidence and explicit reliance was placed on them for decreeing the suit. The proper course, according to the learned counsel, was to summon the defendant petitioner as witness and confront him with the original signatures and if he had denied them the same should have been sent to the handwriting expert for comparison but this course was not adopted.

6. Further contended that the Court of learned Additional District Judge being the first appellate Court was bound to go into the facts of the case and material on the record thoroughly but it did not advert to this aspect and laying stress only on the application of Order 17, Rule 3, C.P.C. dismissed the

7. On the other hand, it is argued on behalf of the plaintiff‑respondent that all the issues framed by the trial Court were struck in view of the pleadings of the parties and issue No.l, which was quite comprehensive, was also. properly framed but if for the sake of argument the trial Court could not frame it in its true perspective, even then it did not materially affect the trial as substantial justice had been done in this case. In support of his contention he places reliance on 1988 SCMR

3. According to the learned counsel, the question of improper framing of issues was never agitated before the trial Court nor before the lower appellate Court and it is too late for the defendant‑petitioner to raise this question for the first time before this forum.

8. As regards the second point he submits that the plaintiff‑respondent himself appeared as his own witness and also produced his driver, who had been delivering the supply of diesel to the defendant‑petitioner at different occasions and the oral evidence is further supported by the documentary evidence brought on the record in a lawful manner. The photostat copies, according to the learned counsel, were brought on the record because the original cash memos must be in the custody of the defendant‑petitioner and the same were admitted in evidence.

9. With regard to third and the last point raised on behalf of the defendant‑petitioner, he contends that the trial Court on issue No.l discussed the evidence adduced by the plaintiff‑respondent, oral as well as documentary, and it satisfied the requirements of law. Similarly, the appellate Court duly considered various aspects of the matter in detail, he adds.

10. So far as the first contention of the learned counsel for the defendant petitioner is concerned, no doubt issue No.l was framed in general terms and it could be given more definite shape but in view of the fact that the parties '4 clearly stood as what was the controversy between them and what they were to prove or disprove, no prejudice was caused to either of them. The record shows that it was in fact the defendant‑petitioner who avoided to produce his evidence despite availing a number of opportunities and ultimately got his evidence closed under Order 17, rule 3, C.P.C. by his own defaulting conduct. Out of the precedents quoted at the Bar, I would prefer the one known as 1988 S C R M 4 being more appropriate and relevant to the facts of this case.

11. As regards the second and the third contention of the learned counsel for the defendant‑petitioner, those too are without force. The trial Court duly considered the evidence led by the plaintiff‑respondent and drew proper, conclusion. While bringing on the record the photostat copy of the relevant pages of the account book, Sh. Mazhar Imam (P.W.1), who was partner of the plaintiff firm, had produced the original account book and shown the same to the trial Judge. This was the correct mode of proving the document and there is no substance in the contention that photostat copies could not be brought on the record being not admissible in evidence. The learned Additional District Judge, no doubt, laid much stress on the question of closure of the evidence of the defendant‑petitioner under Order 17, Rule 3, C.P.C. and did not advert to, the evidence of the plaintiff‑respondent in some detail, but this cannot be said that the appellate judgment is altogether defective. He was to discuss and consider that aspect of the case which was placed before him by the learned counsel for the parties and in this view of the matter too he was not to blame for not resorting to the factual aspect of the case in the light of the evidence adduced by the plaintiff‑respondent.

12. In view of the above, there is no substance in the revision and the same is dismissed with costs. H.B.T./L‑5/L Revision dismissed.