Nandipati Sitayya and Co. vs Mannava Ramakotaiah

This appeal is directed against the judgment passed by the District Judge, Guntur in AS No.l 18 of 1978, dated 24-5-1980, whereby the appeal was partly allowed and the suit was decreed for the recovery of Rs.2,369.37 with future interest at the rate of 5-1/2% per annum.

The facts of the case in brief are that : the appellant had filed a suit for recovery of Rs.5993.76 against the respondent alleging that from 20-4-1970, the defendant used to borrow money from time to tune from the appellant-plaintiff and used to make part-payments., He did not pay the amount of Rs.5993.76, therefore, the decree for Rs.5993.76 be passed against him with interest. The respondent denied the plaint allegations and pleaded that he used to supply chillies to the appellant against the advances which he used to take and after accounting the balance if any was to be paid to him. The appellant did not adjust the price of chillies supplied to him against the advances promising that it can be settled and adjusted later. He has to recover Rs.5,000/- from the plaintiff against the price of chillies after adjusting all the advances and, therefore, the suit deserves to be dismissed.

It is also a matter of record that the respondent has filed a suit in OS No. 1520 of 1973 for recovery of Rs.5000/- with interest totalling Rs.5851.41 against the appellant.

The trial Court disposed of both the suits by common judgment. The trial Court decreed the suit in OS No.1520 of 1973 in favour of the respondent and against the appellant and this decree has become final.

The trial Court on assessment of evidence on record found that the appellant is entitled to claim only Rs.342.57 and decreed the suit for Rs.342.57 with proportionate interest as against the claim in the suit amounting to Rs.5993.76. The appellant filed AS No.118 of 1978, being aggrieved by the decree of dismissal of his remaining claim of Rs.5650.19. The Appellate Court on reassessment of evidence on record reached the conclusion that the appellant is entitled to claim Rs.2369,39 and modified the decree of the trial Court and ordered the respondent to pay Rs.2369.39 with interest at the rate of 5-1/2% per annum from the date of suit till the date of realisation of the decretal amount and dismissed the balance claim of Rs.3624.39. Feeling aggrieved by the decree of dismissal of claim amounting to Rs.3624.39, the plaintiff has come up in appeal.

At the outset, it is to be remarked that the appellant had filed IA No.1656 of 1980 in AS No. 118 of 1978 under Order 47 Rule 1 CPC for reviewing the judgment passed in appeal and the first appellate Court vide its order dated 18-10-1983 dismissed the application for reviewing on the ground that there was no error apparent on the face of the record.

Relying on the case of Sushil Kumar Sen Vs. State of Bihar, the learned Counsel appearing for the respondent raised a preliminary objection to the maintainability of the Second Appeal on the ground that the order passed in review petition has confirmed the decree originally passed by the Appellate Court, and, therefore, this order is actually a new decree superseding the original one and, therefore, the appellant should have filed an appeal against the order and decree passed in IA No.1656 of 1980 on 18-10-1983 and not against the original judgment and decree passed in AS No.118 of 1978 and on this count only the appeal is liable to be dismissed.

In the case of Sushil Kumar Sen (supra), the Additional District Judge, on a reference of the case u/s 18 of the Land Acquisition Act, had enhanced the compensation from Rs.14/- to Rs.200/- per katha vide judgment dated 18-8-1961. The State of Bihar had filed an application for review under Order 47 Rule 1 of the CPC on the basis of discovery of new and important evidence, as regards the market value of the land, which was not available to it inspite of exercise of due diligence. This application for review was allowed on 26-9-1961 and a fresh judgment was delivered by the Additional District Judge, reducing the compensation from Rs.200/- to Rs.75/- per katha. Not fully satisfied with the impugned decree, the State of Bihar had preferred an appeal in the High Court challenging the order dated 26-9-1961 awarding compensation at the rate of Rs.75/-per katha and not against the decree dated 18-8-1961 whereby compensation at the rate of Rs.200/- per katlia was awarded. The respondent of that appeal, namely S.K. Sen, had also filed a cross-appeal challenging the maintainability of the review petition which had been allowed by the Additional District Judge as also the order passed by it regarding reduction of compensation from Rs.200/- to Rs.75/- per katha. The High Court found that the Additional District Judge was wrong in entertaining the review petition, but considered the appeal filed by the State of Bihar on merits and dismissed it. The High Court also dismissed the cross-appeal and maintained the compensation awarded at the rate of Rs.75/-pcr katlia as was done by the Additional District Judge through judgment and decree dated 26-9-1961.

The Apex Court has held that the State of Biliar had not filed any appeal from the judgment dated 18-8-1961 awarding compensation for ths land at the rate of Rs.200/-per katha, but filed an application for review of the decree and succeeded in getting the decree dated 18-8-1961 modified. The State of Biliar was not competent to file an appeal against the judgment and decree dated 18-8-1961 because by that time, it had already been superseded by the decree dated 26-9-1961. Therefore, the appeal filed by the State of Bihar before the High Court was only an appeal against the decree passed after review. When the High Court came to the conclusion that the Additional District Judge was wrong in allowing the review, it should have allowed the cross appeal because no appeal was preferred by the State of Biliar against the decree passed on 18-8-1961 which had become final. On these facts, the Apex Court has observed that it is too well settled that the effect of allowing an appeal is to vacate the decree passed. The decree that is subsequently passed on review, whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one.

When the decree is modified or reversed by a judgment or an order passed on review, the original decree is superseded and a new decree is passed. Similarly, if the Court, on the basis of discovery of new and important evidence, entertains a review petition and after discussion of the evidence on record of such new and important evidence, reaches the conclusion that the findings recorded by the Court are correct and dismisses the review petition on merits, thus confirming the decree originally passed, it can be said that a new decree has been passed superseding the original one. In other words, when the earlier judgment or order after reinvestigation of the material on record is approved, it means that the earlier judgment or order has been confirmed. But when the Court refuses to entertain the application for review on the ground that there is no error of law apparent on the face of the record or it is not a case of discovery of new and important evidence after exercise of due diligence or when the application is rejected on the ground that review would require appreciation of evidence already on record which exercise is not permissible in law for reviewing the judgment, it cannot be said mat the original decree has been confirmed in the sense the word ''confirmed'' is used when after discussing the new and important evidence or on application of mind, the petition is dismissed on merits.

It is apposite to mention that an application rejecting a review petition under Order 47 Rule 1 of the CPC is not appealable under Order 43 Rule 1 of the Code. Therefore, the question of drawing a decree in pursuance of an order of rejection of an application for review on the ground that it is not tenable, does not arise.

In the case on hand, the learned Lower Court has rejected IA No. 1656/80 which had been filed by the appellant under Order 47 Rule 1 of the CPC for reviewing the judgment and decree passed in AS No 118 of 1978 on the ground that there was no error apparent OH the face of the record and oral evidence on record cannot be re-appreciated in a petition for review. Therefore, it cannot be said that the original judgment and decree passed in AS No. 118 of 1978 has been merged with the order passed in IA No. 1656 of 1980 on 18-10-1983. It is also noteworthy that no decree has been drawn or could be drawn in pursuance of this order dated 18-10-1983. Under these circumstances, the case of Sushil Kwnar Sen (supra) is of no help to the respondent. Therefore, the preliminary objection raised by the learned Counsel of the respondent regarding the maintainability of the second appeal on the ground that the order passed in review petition has confirmed the original order passed by the appellate Court has no force and it is rejected.

It is no longer in controversy before me that the appellant is a commission agent and he used to advance monies from time to time to the respondent. When the respondent used to bring chillies to be sold in the market, chits were issued to him mentioning the quantities and the price of the chillies sold. The appellant used to prepare sale pattis also in which the account of every lot of chillies was maintained, that is to say, the weight and the price of the cliillies sold, the amount payable to the appellant as commission and the advance already paid by the appellant. Thus, deducting the commission and the advance from the price of the cliillies sold, the balance, if any, was to be paid to the respondent-cultivator. It is not disputed before me that the respondent had supplied different quantities of cliillies through chits, Exs.Bl to B5. The appellant had prepared the sale pattis in respect of the aforesaid chits which arc at Exs.A20, A23, A26, A27 and A32.

The appellate Court, on assessment of the evidence on record, had found that accounts were properly done in respect of chit Ex,B4 and chit Ex.B5 through day book entry Ex,A31 and day book entry Ex.A18. But in para 21 of its judgment it is observed that though the amounts covered under chits Ex.Bl to B3 have been referred to in sale pattis, ExA23, A20 and A26 respectively and the balance has been struck off as nil, there is no material on record that the respondent- had received the cash amount shown in these documents. It further found that the appellant-firm has failed to give credit in his account books regarding the amounts covered by chits Ex.Bl to B3 and, therefore, the appellant-firm is not entitled to claim Rs.3.624.39 from the respondent. Holding so, it lias decreed the suit only to the extent of Rs.2,026.89 which amount had been covered by Exs.B4 to B6 and B15.

The learned Counsel of the appellant has taken me through the day book entry, Ex.A12, which bears the signature of the respondent evidencing debit entry of Rs.2,089.02. The respondent has also admitted his signature on the day book, Ex. Al 2, wherein it has been mentioned that a sum of Rs.2,089.02 was paid to the respondent. This entry in the day book, Ex.A12, corroborates the entries made in the sale chits, Ex.A23, A20 and A26. The learned lower Court having lost sight of this important piece of evidence, has fallen in error in holding that the appellant has failed to establish mat accounts were not settled and balance was not paid after adjustment to the respondent tlirough Ex.Bl to B3 and Ex.A23, A20 and A26 as also Ex.A12. The appellate Court has also erred in holding that the burden of proof was on the appellant for establishing that the payment was made, because the respondent has acknowledged the receipt of the payment under his signature on the day book, Ex.A12.

For the foregoing reasons, disagreeing with the appellate Court, I hold that the appellant is entitled to claim Rs,3,624.39 also from the respondent. In other words, the appellant is entitled to claim an amount of Rs.5,939.76 from the respondent as prayed for.

In the result, the appeal is allowed. The judgment and decree passed by the first appellate Court, whereby the claim of Rs.3,624.39 was dismissed, are set aside. The respondent is ordered to pay an amount of Rs.5.939.76 (Rupees five thousand nine hundred thirty nine and paise seventy six only) as prayed for with future interest at the rate of 5-1/2 (five arid a half) per cent per annum and the amount if already paid against the decree passed by the first appellate Court shall stand adjusted against this amount. However, in the circumstances of the case, I leave the parties to bear their own costs.