BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :23/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.849 of 2000 Amaravathi Thevar ... Appellant/1st Respondent/ 1st Defendant Vs 1.Balakrishnan ... 1st Respondent/Appellant/ Plaintiff 2.Radhakrishnan ... 2nd Respondent/ 2nd Respondent/ 2nd Defendant Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 24.06.1998 passed in A.S.No.183 of 1996 by the learned Principal District Judge, Ramanathapuram, in reversing the judgment and decree dated 31.10.1995 passed in O.S.No.96 of 1994 by the learned Sub Judge, Ramanathapuram. !For Appellant ... Mr.V.Sitharanjandas ^For Respondents ... No representation :JUDGMENT
This second appeal is focussed as against the judgment and decree dated
24.06.1998 passed in A.S.No.183 of 1996 by the learned Principal District
Judge, Ramanathapuram, in reversing the judgment and decree dated 31.10.1995
passed in O.S.No.96 of 1994 by the learned Sub Judge, Ramanathapuram.
2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
3. Broadly, but briefly, succinctly but narratively, the case of the
plaintiff as stood exposited from the plaint and the relevant records could be
portrayed thus:
The plaintiff approached the second defendant and got permission to cut
Karuvela trees standing on the land in S.No.82/1 in Ariyakudi village. The
first defendant being the agent of the second defendant received a sum of
Rs.13,000/- (Rupees Thirteen Thousand only) from the plaintiff in that regard.
When the plaintiff went to the land in S.No.82/1 so as to cut the Karuvela
trees, P.W.2, Ramu objected on the ground that there was litigation pending and
that no Karuvela trees should be cut by any one. Whereupon, the plaintiff
demanded back the money from the defendants 1 and 2, however they had a volte
face and refused to pay back the money.
4. The gist and kernel of the case of the defendants as stood exposited
from the respective written statements and from the records concerned, would run
thus:
The land in S.No.82/1 is under the grip of litigation and that fact is
well known to the villagers. The defendants in fact, entered into a contract
with the plaintiff for cutting, the Karuvela trees in S.No.106/1 belonged to
Jeyaraman who is the brother’s son of the second defendant and on behalf of the
said Jeyaraman, the second defendant had negotiations with the plaintiff and the
first defendant also assisted him. After cutting the Karuvela trees in
S.No.106/1, the plaintiff falsely filed this suit owing to personal animosity.
Accordingly, they prayed for the dismissal of the suit.
5. The trial Court framed relevant issues. During trial, P.W.1 and P.W.2
were examined and Exs.A.1 to A.3 were marked on the side of the plaintiff and
D.W.1 to D.W.4 were examined and Ex.B.1 was marked on the side of the
defendants.
6. Ultimately, the trial Court dismissed the suit.
7. Being aggrieved by it, the plaintiff preferred the appeal before the
Principal District Court, Ramanathapuram, which Court reversed the judgment and
decree of the trial Court and decreed the original suit making the first
defendant alone liable.
8. Challenging the judgment and decree of the first appellate Court, the
first defendant filed this second appeal on the following main grounds among
others:
The first appellate Court misdirected itself in expecting that the first
defendant should have set out in the written statement about the registration
number of the lorry by which the Karuvela trees which were cut in S.No.106/1,
were carried away. Instead of relying on the evidence of the Village
Administrative Officer, D.W.4, the first appellate Court simply rejected the
case of the defendant for no good reason. The evidence of D.W.3 was in support
of the case of the defendant, but erroneously the first appellate Court
discarded it. The non-examination of the owner of the land bearing S.No.106/1,
loomed large in the mind of the first appellate Court and consequently
misdirected itself and reversed the judgment of the trial Court and wrongly
decreed the suit as against the first defendant. Accordingly, he prayed for
setting aside the judgment and decree of the first appellate Court and for
restoring the judgment and decree of the trial Court.
9. At the time of admitting this second appeal, my learned Predecessor
framed the following substantial question of law:
“Whether the findings of the lower appellate Court are vitiated by
perversity?”
10. The indubitable and unassailable facts are to the effect that the land
in S.No.106/1 belongs to the said Jeyaraman, the brother’s son of the second
defendant in Ariyakudi village. The fact also remains that there is one other
land bearing S.No.82/1 in the same village which is infested with litigation.
On the one hand, the plaintiff would contend that the defendants failed to
perform their part of the contract after receiving a sum of Rs.13,000/- (Rupees
Thirteen Thousand only), whereas the defendants would contend that the plaintiff
after reaping the fruit of the contract by actually cutting the Karuvela trees
in S.No.106/1, simply had a volte face and due to some motive, has chosen to
file such vexatious suit.
11. The approach of the first appellate Court, ex facie and prima facie,
is far from satisfactory for the reasons to be set out infra.
12. The non-examination of Jeyaraman, the brother’s son of the second
defendant, was taken seriously by the first appellate Court. It is not the case
of the defendants that Jeyaraman, in fact, negotiated with the plaintiff and
received the money, etc. In such a case, the first appellate Court’s approach
in expecting that Jeyaraman should have been examined to prove the case of the
defendants is neither here nor there.
13. The evidence of D.W.4 is clinching and the certificate Ex.B.1 is self-
explanatory, which candidly refers to S.No.106/1 of Ariyakudi village and also
about the cutting of Karuvela trees by the plaintiff and taking away the same in
a lorry. D.W.4 had no axe to grind in this matter. There is nothing to
substantiate that D.W.4 was bent upon to utter falsehood and buttress and
support the plea of the defendants blindly. D.W.3, the owner of the lorry also
supported the case of the plaintiff in unambiguous terms. The first appellate
Court unconvincing by pointed out as though there was no specification about
the registration number of the lorry, in the written statements as well as the
certificate issued by D.W.4 etc. Under Order VIII of the Code of Civil
Procedure, in the written statement, it is sufficient if the defendant set out
the relevant pleas; of course, it should not be evasive, still all details need
not be found set out in the written statement.
14. Here, during trial, the defendant had chosen to examine D.W.3 and
D.W.4 on their side and they also filed certificate issued by D.W.4. Merely
because their names were not found set out in the written statement and that the
documents marked during trial were not referred to in the written statement,
their evidence cannot be jettisoned or discarded as the ones which are cooked up
due to afterthought. The evidence of P.W.2 had to be taken with a pinch of
salt, inasmuch as he was at logger heads with the defendants.
15. As such, the trial Court considering all these aspects correctly
arrived at the conclusion that the plaintiff had not discharged the burden of
proof cast on him, whereas the first appellate Court has wrongly understood that
the burden got shifted to the defendants which they failed to discharge. Merely
because, the first defendant admitted that a sum of Rs.13,000/- (Rupees Thirteen
Thousand only) was received from the plaintiff, it cannot be stated that the
burden of proof got shifted on him. The Court should have had positive approach
in dealing with this matter. Above all, the case of the defendants is that
there was no privity of contract between the plaintiff and the defendants for
cutting the Karuvela trees in S.No.82/1 at all and in such a case, the onus
probandi was on the plaintiff, which he failed to discharge.
16. In such a case, the first appellate Court ought to have looked for
evidence on the plaintiff’s side as to whether the plaintiff proved his case by
adducing evidence. Absolutely, there is no iota or shred of evidence in that
regard. Unmindful of these relevant features, the first appellate Court
misdirected itself and reversed the finding of the trial Court. Accordingly,
the point is decided.
17. In the result, this second appeal is allowed, setting aside the
judgment and decree dated 24.06.1998 passed in A.S.No.183 of 1996 by the
learned Principal District Judge, Ramanathapuram, and restoring the judgment and
decree dated 31.10.1995 passed in O.S.No.96 of 1994 by the learned Sub Judge,
Ramanathapuram. However, in the facts and circumstances of this case, no order
as to costs.
rsb
To
1.The Principal District Judge, Ramanathapuram.
2.The Sub Judge, Ramanathapuram.