Madhya Pradesh High Court
Shivraj Singh Chauhan vs Rajendra Kumar Gupta on 8 December, 2016
1 Second Appeal No.30/2010
(Shivraj Singh Chauhan Vs. Rajendra Kumar Gupta)
08/12/2016
Shri R.K. Soni, learned counsel for the appellant.
Shri B.B. Shukla with Shri Manish Sharma, learned counsel
for the respondent.
At the joint request of parties, matter is heard finally.
This appeal has already been admitted vide order dated
21/04/2015 on following substantial question of law:-
"(1) Whether, on facts and circumstances of
the case, first appellate Court was justified
having decreed the suit while reversing the
judgment of trial Court, in absence of the
evidence as regards loan allegedly advanced
by plaintiff to defendant ?"
This appeal under Section 100 CPC has been preferred at
the instance of the defendant. The appellant/defendant has
challenged the judgment and decree dated 21/12/2009 passed by
IV Additional District Judge, Morena in Civil Appeal No.1-B/2005,
whereby judgment and decree dated 05/08/2005 passed by First
Civil Judge, Class-I Morena in Civil Suit No. 11-B/2005 has been
reversed and findings has been given in favour of the
appellant/defendant.
Facts of the case in brief are that the respondent/plaintiff
has filed a suit for recovery of Rs.40,000/- from the appellant/defendant as according to him, the said amount has been given by the plaintiff as loan to the defendant. Defendant refused to repay the loan amount and therefore, the suit has been filed. Defendant remained ex-parte before the trial Court but still plaintiff could not prove his case and the suit was dismissed. Being aggrieved by the judgment of the trial Court, the respondent/plaintiff preferred First Appeal under Section 96 CPC before the First Appellate Court. Plaintiff stood successful in first Appellate Court.
2 Second Appeal No.30/2010(Shivraj Singh Chauhan Vs. Rajendra Kumar Gupta) Learned counsel for the appellant/defendant submits that the cheque of Rs.40,000/- has been given to the defendant by the plaintiff but the cheque was deposited in the joint account held by present defendant namely-Shivraj Singh Chauhan as well as son of the present plaintiff namely-Vivek Kumar Gupta, who run the firm namely M/s Sandeep Agro Industries. The endorsement at the back of the said cheque indicates that the said cheque was encashed in the account of M/s Sandeep Agro Industries and not in the individual account of defendant. The testimony of the plaintiff (PW-1) as well as the Account Officer of the bank (PW-2) substantiate the stand taken by the present appellant/defendant. According to him, the plaintiff himself has admitted the fact that the cheque amount has been profitably enjoyed by the joint account holder (i.e. M/s Sandeep Agro Industries) and not by the individual defendant.
Once, the benefit of alleged loan transaction have not been enjoyed by the defendant individually, therefore, he is not entitled and obliged to repay the loan amount. Learned counsel for the appellant relied upon the findings given by the trial Court. He further submits that an application under Order XLI Rule 27 CPC had also been preferred by the defendant for taking certain documents on record but the same was dismissed by the First Appellate Court.
Through the series of litigations as elaborated by the counsel for the appellant he tried to submits that the first Appellate Court has not appreciated the controversy in correct prospective.
On the other hand, learned counsel for the respondent/plaintiff submits that the first Appellate Court has rightly passed the judgment and decree dated 21/12/2009 in favour of the plaintiff because the amount of Rs.40,000/- which was given to the appellant/defendant as a loan went into the 3 Second Appeal No.30/2010 (Shivraj Singh Chauhan Vs. Rajendra Kumar Gupta) account of M/s. Sandeep Agro Industries which is being run and operated by the defendant himself. He further contends that he had earlier filed an application under Order XLI Rule 27 CPC for bringing certain additional facts on record before this Court which is pending vide I.A. No.3102/2016. He prayed for dismissal of the appeal.
Heard the learned counsel for the parties and with their assistance perused the record.
From the chequered history and litigation, wherein the matter was earlier remanded by this Court vide order dated 12/10/2009 in Misc. Appeal No.290/2007 as well as the effect of Civil Suit No.1-B/2005 in all cumulatively indicates that the controversy is still not been adjudicated conclusively either by the trial Court or by the Appellate Court, as well as the application preferred under Order XLI Rule 27 CPC by the respondent/plaintiff is still pending consideration before this Court.
On the other hand, grievance of the appellant is that he had also moved an application under Order XLI Rule 27 CPC before the First Appellate Court, which got dismissed and therefore, the contentions purportedly tries to be projected by the appellant could not be considered and weighed appropriately.
At this stage, learned counsel for the parties jointly pray for remanding the matter back to the trial Court for fresh adjudication. They seek liberty to file appropriate application for taking the documents on record before the trial Court and want to substantiate their case by taking resort to all pleadings (including written statement) in the matter.
In absence of adequate pleadings and documents on record, the first Appellate Court erred in decreeing the suit and reversing the judgment and decree of the trial Court because the documents and pleadings were not sufficiently available before the First Appellate Court to reach to such conclusion. Not only 4 Second Appeal No.30/2010 (Shivraj Singh Chauhan Vs. Rajendra Kumar Gupta) this, but the trial Court has also erred in coming to the conclusion about dismissal of the suit without sufficient material available on record.
Resultantly, the appeal is allowed and judgment and decree dated 21/12/2009 passed by IV Additional District Judge, Morena in Civil Appeal No.1-B/2005 as well as judgment and decree dated 05/08/2005 passed by First Civil Judge, Class-I Morena in Civil Suit No. 11-B/2005 are hereby set aside. The matter is remanded back to the trial Court for fresh adjudication.
Thus, the substantial question of law is answered accordingly.
Both the parties are at liberty to complete the pleadings (including written statement) and move appropriate applications for bringing additional facts/documents on record.
The trial Court would be at liberty to reframe the issues in respect of the pleadings, if so added in the case.
As the matter pertains to the year 2004, therefore, it is expected from the trial Court to conclude the trial after the pleadings are complete, as expeditiously as possible, preferably within one year from the date of reframing/settlement of the issues.
Parties undertake to corporate in the trial proceedings by not seeking any undue adjournment in the trial.
Thus, the appeal stands allowed and disposed of accordingly.
(Anand Pathak) Judge vc