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Judgment
This appeal has been preferred by appellants -
defendants against the judgment and decree dated 22 nd
January, 1998 passed by learned Additional District &
Sessions, Kotputli, District Jaipur against them in Civil
Original Suit No. 131/1992 for recovery of Rs.76,000/- with
costs along with the amount of interest @ 12% per annum
since filing of the suit i.e., 27th August, 1984.
Facts in brief giving rise to this appeal are that the
plaintiff - Chhajuram and original defendant - Vishambhar
Dayal were brothers. As per the facts mentioned in the
plaint, both these brothers along with third brother -
Kanhaiyalal were having joint business of military canteen.
Defendant, being the eldest one, was handling the whole
business. After partition, the accounts were settled by
them in March, 1980 and a sum of Rs.55,000/- was
determined to be paid to the plaintiff by defendant -
Vishambhar Dayal. An entry to this effect was made in the
account books of plaintiff - Chhajuram by defendant -
Vishambhar Dayal on 18th April, 1980 which was made in
the hand writing of Banshidhar, who happened to be their
Manager. It was decided that the amount will be paid in
annual installments of Rs.5,000/- each. The first
installment will fall due on Baishakh Shudi 3 Samvat 2038.
It was also decided that the whole amount shall fall due
along with the interest @ 12% per annum on default of
payment of any of the installments. It has been stated in
the plaint that the defendant did not pay any of the
installment despite notice. The first installment became
due on 18th April, 1981. As the amount of first installment
became out of the limitation period on 18 th April, 1984,
hence, the amount of Rs. 50,000/- only has been claimed
by way of filing this plaint along with interest amount of
Rs.26,000/- while waiving the claim to first installment.
Defendant has completely denied the averments made
in the plaint by way of filing his written statement. He had
denied to have any joint business, settlement of the amount
due towards plaintiff and writing of any deed acknowledging
the amount due in the account books of the plaintiff. He
has alleged such deed to be forged and fabricated.
In view of the pleadings, seven (07) issues were
framed by the learned trial Court. During trial, 6 witnesses
were got examined on behalf of the plaintiff. Defendant
examined 3 witnesses including himself. After hearing
learned counsels for both the sides, the suit was decided as
mentioned hereinabove.
During arguments, learned counsel appearing for the
appellant has raised this legal issue that the defendants -
appellants No. 4 to 7 are married daughters of the original
defendant - Vishambhar Dayal. On account of death of
defendant - Vishambhar Dayal during trial, they were
impleaded as defendants in the capacity of legal heirs but
they have not inherited the property left by defendant -
Vishambhar Dayal on his death which took place on 15 th
June, 1991. He has argued that in view of this fact, the
decree should not have been passed against them by the
learned trial Court. This aspect has been completely ignored
by the learned trial Court. The decree passed against
appellants No. 4 to 7 deserves to be quashed and set aside
on this ground only.
Learned counsel appearing for the respondent has not
been able to answer the objection raised as above.
On perusal of the judgment impugned, nothing is
available on record, as to why, decree has been passed
against these married daughters of the original defendant -
Vishambhar Dayal. Hence, the decree and judgment against
appellants No. 4 to 7 deserves to be quashed and set aside
on this ground alone.
Learned counsel for the appellant has raised another
issue that the trial Court has completely ignored the
statement of DW-1 Vishambhar Dayal treating it
inadmissible in evidence on account of the fact that he
could not be cross-examined as his death took place during
trial. Learned counsel submits that the most crucial issue in
deciding the suit was, whether any such entry
acknowledging the amount of Rs. 55,000/- was made by
the defendant in the account books of plaintiff. Defendant
has completely denied this fact in his written statement as
also in his statement as DW-1. But the learned trial Court
has decided this basic issue No.1 against the defendant
mainly on the ground that statement of DW-1 is not
admissible in evidence. Learned counsel for the appellant
has referred the judgment in Mangal Sen Vs. Emperor
reported in A.I.R. 1929 Lahore 840 (2) in this regard
wherein, it was held that even if any witness has not been
cross-examined, his evidence is admissible but the weight
to be attached to it will depend upon circumstances on each
case.
Learned counsel has also relied upon the judgment in
Toga Vs. State of Rajasthan reported in 1981 RLW 56
wherein, it has been laid down as follows:-
"9. ....................... It is apparent from a bare reading of this section that the right of cross- examination is there, but it is there only when the adverse party desires to exercise it. If the adverse party desires to cross-examine the witness that privilege has to be granted to it. But when the adverse party does not desire to cross-examine the witness, it can not be said that the right of cross-examination has been denied to it or that the statement is not complete for want of cross-examination."
Attention of this Court has been drawn to the
statement of DW-1 Vishambhar Dayal which was recorded
on 21st July, 1990. During cross-examination, being done by
the learned counsel appearing for the plaintiff, an
application was filed by him under Order 13 Rule 2 CPC to
file certain documents in order to cross-examine the
witness in regard to those documents. Contention of the
learned counsel for the appellant is that prior to the
Amending Act, 1999 which was came into effect from 1 st
April, 2002, the provision prevailing on 21 st July, 1990
contained in Sub-rule (a) of Rule 2 of Order 13 CPC was to
the effect that Order 13 Rule 2 CPC was not applicable to
the documents produced for cross-examination of witness
of the other party. Learned counsel has submitted that in
view of above provision, it was not required for the learned
counsel of plaintiff to file an application under Order 13 Rule
2 CPC for producing certain documents to cross-examine
the defendant. Despite this permission, learned counsel
appearing for the plaintiff intentionally deferred the cross-
examination of the defendant which ultimately could not be
completed because of his death on 15th June, 1991. In view
of above circumstances, the contention of the learned
counsel for the appellant is that in fact, the plaintiff-
respondent himself did not intend to cross-examine the
defendant; and thus, it cannot be said that the right of
cross-examination was denied to the plaintiff. In view of
the principle laid down in Toga''s case (supra), in my
considered opinion, the statement of DW-1 (Vishambhar
Dayal) could not have been ignored by the learned trial
Court.
Learned counsel for the appellant has further
supported his arguments by relying upon the judgment in
the case of Dever Park Buliders Pvt. Ltd. & Ors. Vs.
Smt. Madhuri Jalan & Ors. reported in AIR 2002
Calcutta 281. In this referred case also, the issue was,
whether testimony of deceased defendant with unfinished
cross-examination will be admissible and considered at the
time of hearing or rendering judgment in this case or not ?
After discussing various decisions on this point, it was held
as follows:-
"19. Therefore, from the aforesaid catena of decisions which are rendered in Civil cases and from the discussion reached by me hereinabove I hold that the testimony of the deceased defendant is admissible and the Court is bound to consider its weight to be attached for deciding this matter. Each and every proof in examination in chief does not require being cross-examined. There are cases where no cross-examination is really required. I find here a portion of the examination-in-chief has been cross-examined and such portion in my view should be absolutely admissible in evidence and be considered without any hesitation by the learned Judge at the time of hearing and deciding of the suit..............."
Learned counsel for the respondent has not been
able to cite any of the judgments contrary to the
propositions laid down in the above referred judgments.
In light of the principles propounded in the above
referred judgments and taking this fact into consideration
that DW-1 Vishambhar Dayal was cross-examined by the
opposite counsel to a good extent and further, since it was
not required to defer the cross-examination as per the
prevalent provisions of Order 13 Rule 2 CPC, I am of the
considered opinion that the learned trial Court should not
have completely ignored the statement of DW-1
(Vishambhar Dayal) while deciding issue No.1. This was
the pivotal issue on which the fate of the case was
substantially based. In my opinion, great prejudice has
been caused to the appellants by completely ignoring the
statement of DW-1 Vishambhar Dayal by learned trial
Court in regard to this issue.
Besides it, this is worth mentioning here that as per
the case advanced by the plaintiff, joint business run by
the brothers including plaintiff and defendant came to an
end seven Panchas determined the amount falling due to
each of the partners of erstwhile business. On the basis of
the decision given by Panchas, an acknowledgment deed
for Rs. 55,000/- came to be written on behalf of
defendant - Vishambhar Dayal in the account books of
plaintiff - Chhajuram. It is relevant to mention here that
in face of complete denial by the defendant regarding any
such acknowledgment deed allegedly written on his
behalf, the decision given by Panchas attain importance.
Out of these 7 Panchas, PW-3 Sualal, PW-4 Girdharilal,
PW-5 Sohan have been examined during trial. Aforesaid
Panchas have stated the amount of settlement to be
below Rs. 40,000/-. As per PW-4 Girdharilal, the amount
due to be given to Chhajuram by Vishambhar Dayal was
Rs.38,816/- as per Ex.10. Whereas, PW-5 Sohan has
stated the amount to be Rs. 39,000/-. But statements of
these witnesses have not at all been discussed by the
learned trial Court while deciding issue No.1. When the
statement of DW-1 Vishambhar Dayal was treated to be
inadmissible in evidence by the trial Court, it was all the
more important to examine the evidence of these
witnesses. For non-reading of the evidence, the finding
arrived at by the learned trial Court stands vitiated.
Issue No.2 had been decided by the learned trial
Court on the basis of the findings arrived by it in regard to
issue No.1. Hence, the finding qua issue No.2 also
requires further consideration.
Issue No. 3 had been decided by the learned trial
Court vide order dated 6th March, 1986. It was with
regard to admissibility of the acknowledgment written on
18th April, 1980. The said deed was treated to be
admissible in evidence after depositing the due amount of
the stamp fees. No challenge had been made by the
defendant to this order dated 6th March, 1986, In my
view, the decision on this issue has attained finality and
cannot be re-agitated at this stage.
Issue No. 4 and 5 have not been pressed by the
learned counsel appearing for the defendant before the
trial Court and thus, the same have been decided in
favour of the plaintiff. No arguments have been advanced
by the learned counsel for the appellant before this Court
also regarding these issues. Thus, the findings qua these
issues are sustained. Issue No. 6 pertains to the relief
clause only.
Issue No. 7 is with regard to the suit being barred
by limitation which has been decided by the learned trial
Court in favour of the plaintiff - respondent - Chhajuram.
It had been stated that the plaintiff has waived the
amount of Rs.5,000/- of first installment falling due on
18th April, 1981, being barred by limitation. This fact of
waiver has been pleaded in the plaint itself and the
amount of interest thereon has also not been claimed.
Learned trial Court, while relying upon the judgment in
the cases of Shivdayal Vs. Ramrikh & Ors. reported in
AIR 1955 Rajasthan 188 and Krishnan Madhavan
Vs. Narayanan Jayadevan & Anr. reported in AIR
1975 Kerala 18 has come to the conclusion that in view
of waiver of the first installment and the amount of other
installments being well within limitation, the suit is treated
to be within limitation. I do not find any infirmity in the
finding arrived at by the learned trial Court in this regard.
Thus, finding in regard to this issue given by the trial
Court is sustained.
In view of the discussions made hereinabove, this
appeal deserves to be partly allowed in above terms and
the judgment and decree dated 22nd January, 1998
deserves to be quashed and set aside with the direction to
the learned trial Court to decide issue No.1 and 2 afresh
in the light of the evidence available on record including
the statement of DW-1 Vishambhar Dayal in view of the
observations made hereinabove.
While parting with, it will be pertinent to note that
the suit was filed in the year 1992 and learned trial Court
decided the same on 22nd January, 1998. It is really
painful that the first appeal preferred by the defendants -
appellants is being decided in the year 2017. It is all the
more painful that in the facts and circumstances of the
case, the matter is being remanded to the trial Court for
deciding issue No. 1 and 2 afresh. Thus, in view of this
protracted history of proceedings, it is desirable that
learned counsels appearing for both the parties will make
every endeavour to assist the trial Court by advancing
their arguments at the earliest and the trial Court is also
expected to take necessary steps for expeditious disposal
of the suit, essentially, within a period of six months from
the date of receiving certified copy of this judgment along
with the record.
A copy of this judgment along with the original
record be sent forthwith to the learned trial Court
concerned for information and necessary compliance as
mentioned above.