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Judgment
Jawad Rahim
Defendant is in revision against the Judgment and decree in S.C. No. 1166/2007 directing him to pay Rs. 34,205/-.
Heard.
Perusal of the record show M/s Wisdom Security Services filed a suit against the petitioner for recovery of Rs. 4,200/- per month as the charges for rendering security services in all Rs. 34,205/-. In support of the relief sought they averred it is in the business of providing security cover. The petitioner - defendant approached it for providing security coverage and in terms of the agreement between them, they posted two guards at defendant''s premises at Bannerghatta Road subject to payment of Rs. 4,200/- per. month per security guard. It is alleged the two guards employed by them performed security duty from June 2006 to September 2006. But defendant failed to make good that amount. The plaintiff called upon the defendant by notice dated 16-02-2007 to clear the amount due but he failed. They sought decree.
The defendant denied the suit claim and averred that plaintiff has not come to the Court with clean hands and there is suppression of material facts. While denying the averments in the plaint regarding liability as alleged the defendant averred that no security services were provided by the plaintiff.
Based on the material proposition in the pleadings the learned trial judge conducted enquiry in which the plaintiff examined one T.M. Basavaraj as its witness PW1 and placed reliance on 8 documents. The defendant examined one Rahul Goenka and relied on only one document.
The learned trial Judge noticing the statement of the witnesses tendered by the defendant and the cross-examination of PW1 opined that the plaintiff has succeeded in establishing its case and decreed it. Assailing it defendant is in revision.
The learned counsel for petitioner has taken me through the evidence on record to contend that the evidence did not translate into proof for grant of decree. He has referred to evidence of PW1 itself, which shows that the plaintiff claims to have provided two security guards at the premises of the defendant from June to September 2.006. No documents are placed to evidence the contract for security between the parties. There is no documents filed by the plaintiff to prove the defendant had agreed to pay Rs. 4,200/- per month per guard and that security was provided.
On perusal I am also satisfied that case as projected by the plaintiff was that there is binding agreement between the parties for providing security services. Plaintiff had averred it but later put a volte face to contend that it is an oral agreement between parties on which plaintiff acted. The learned trial Judge construed such a statement in examination in chief as convincing evidence to establish contract between the parties.
Be that as it may, what the learned trial Judge had to examine was whether really such services are provided. Fastening liability on the defendant to pay Rs. 4,200/- per month per guard was justified only on proof that services were rendered. Undoubtedly, plaintiff will be in a position to say who were those two guards who had rendered such security services. Neither the acquaintance roll nor any material is produced to show that such guards were posted at the premises of the defendant. We ate dealing with the security agency and undoubtedly we expect sufficient material to show employment of the guard, posting of the guard and period of security services. No document In this regard was produced. Atleast we expected plaintiff to bring in those two security guards as witness to substantiate they rendered services. But those two guards were not brought in as witness to support the case of the plaintiff. If as stated two guards were posted by the plaintiff it presupposes that they were under its employment. No material is produced to establish it also.
The self serving ocular testimony that plaintiff had provided security guard services and defendant had failed to pay charges from June to September 2006, cannot be treated as acceptable evidence. As against such lacunas in the plaintiff''s case the defendant has also acted in similar manner. Initially, it examined one Mallesh S/o Nanjundegowda as its witness and filed affidavit in examination in chief on 02.12.2009, but subsequently, failed to tender him for cross-examination. Therefore, his affidavit had remained as examination in chief without being tested in cross-examination and consequently it is not an evidence in law and rightly it was rejected by the trial Court on 19.03.2011. Later defendant examined one Rahul Goenka as DW1, who was also partly cross examined, but when he was asked to produce certain documents like accounts extract and the attendance register extract, he failed to produce.
The learned trial Judge examined his evidence and found he had admitted that even prior to June 2006 the plaintiff had provided security services and bills were raised for April & May 2006. On that basis the learned trial Judge held since providing security services was admitted and defendant received charges till June 2006, it proof plaintiff''s claim. On this basis the suit is decreed.
It is clear case where the trial Court has failed to appreciate the evidence of the parties as is required u/s 3 of the Evidence Act. The learned trial Judge noticed lacuna in the evidence of the plaintiff and it also discarded evidence of the defendant, but ultimately suit is decreed. Therefore, the decree impugned could hardly be sustained.
Accordingly, the impugned decree passed by the trial Court in S.C. No. 1166/2007 is set aside. The case is remanded to the trial Court permitting the parties to lead such evidence as necessary to support their pleadings.
With the above observation the petition is disposed of.