Karnataka High Court
M.S. Suresh vs K.V. Sudhakar on 10 December, 1986
Equivalent citations: AIR1987KANT249, AIR 1987 KARNATAKA 249
JUDGMENT Chandrakantaraj URS, J.
1. This appeal is by the plaintiff, whose suit came to be dismissed. The plaintiff filed O.S. No. 3134 of 1981 in the Court of the First Additional City CiviI Judge, Bangalore. The suit was filed to recover a sum of Rs. 58,583-82 p. said to be due to the plaintiff by the defendant. The plaint averment was that the defendant was carrying on business at the address given the cause title. The defendant had, according, to the plaintiff, in the course of the business carried on by him had become due to the plaintiff a sum of Rs. 11,844-94 p. Later, the defendant worked for plaintiff from 8-4-1978 to 8-9-1978, while he continued to run his separate business. During the period a further sum of Rs. 25,888-00 had become due to the plaintiff by the defendant. Thereafter the defendant expressed his inability to work with the plaintiff and continued his own business from 9-10-1978. The account was completed between the plaintiff and the defendant and the defendant acknowledged his liability to continue by executing an agreement. The agreement entered into and the accounts stated between the plaintiff is stated to have been pr6duced with the plaint as document No. I. It is alleged further that the defendant had agreed in the said agreement to pay a sum of Rs. 750/- per mensem towards the amount acknowledged by him due to the plaintiff. Plaintiff having failed despite his several attempts to receive the amounts so due filed the suit for recovery of the same.
2. The defendant resisted the claim denying the allegations of the plaintiff. Before filing the written statement, it must be observed by us that, certain particulars were called for by the defendant. Plaintiff failed to furnish those particulars. There afterwards, the written statement was filed. In that written statement the defendant denied that he had executed any such agreement as was referred to as document No. 1 in the plaint. He denied that, the allegations in Para 2 of the plaint were absolutely false. He denied that the defendant was carrying on any business on 12-10-1981 on the date of the plaint and the address given in the cause title. He denied that he had any sum owing to the plaintiff in the course of business alleged to have been carried on between the defendant and the plaintiff. He pleaded that the suit was not maintainable. As filed there could be no suit on accounts based on agreement as pleaded by the plaintiff. On the other hand the defendant pleaded that he and the plaintiff were partners and it was agreed between them to utilise the scientific knowledge of the defendant and the working knowledge of the plaintiff to run the business. No name was given to the partnership firm and it was not registered. An agreement of partnership was, however, drawn up and the same was with the plaintiff. No copies were kept by the defendant. He alleged that the plaintiff had brought the suit falsely. The partnership accounts were with the plaintiff. That the defendant believed in the bona fides of the plaintiff and did not very much press at the relevant time for copy of the agreement and/ or the copy of the account of the partnership kept by the plaintiff. It was for this purpose that the particulars were called for which had not been furnished. He further pleaded that, in the period in question the defendant would give equipments valued at Rs. 20,000/- and the plaintiff would supply the raw materials to the extent of Rs. 20,000/- and the profits from such venture should be tendered under equal proportions. He, therefore, claimed that in addition to the equipment a sum of Rs. 25,000/- was agreed to be paid to the defendant as development fees. Therefore, the defendant contended in the written statement that it was the plaintiff who was due certain amount to the defendant only and on account of lack of funds he could not make a counter-claim by paying the required court fee. He denied the other allegation in the plaint and set out the details as to how the business transactions between the defendant and the plaintiff was not successful and the defendant was forced to abandon the unregistered partnership.
3. On such pleadings the Court below framed as many as eight issues and they are as follows :
(1) Whether the plaintiff proves that the defendant had account with the plaintiff ?
(2) Whether the plaintiff proves that the defendant has become due in a sum of Rs. 11,944-94 during the course of the business carried on by the defendant ?
(3) Whether the plaintiff proves that the defendant worked for the plaintiff from 8-478 to 8-9-78 and during that period has become due to the plaintiff in a sum of Rs. 25,888/- ?
(4) Whether the plaintiff proves the agreement as alleged in Para 5 of the plaint ?
(5) Whether the plaintiff is entitled to claim 10% interest from 9-10-78 to 31-9-1981 ?
(6) To what relief the plaintiff is entitled to ?
(7) Does the defendant prove that they began to trade as partners and that it was an unregistered partnership?
(8) Is the suit not maintainable on account of the parties trading in partnership without registration of the firm?
4. As is obvious from the issues framed the burden of proving the issues is or) the plaintiff except issue No. 7, the burden of which was on the defendant. Therefore, in accordance with the requirement of O. 18 R. I of the C.P.C. the plaintiff was asked to commence the case and in fact, it is in the evidence that he did so commence on 7-6-1985. after the examination-in-chief was concluded by PW 1, who was none other than the plaintiff himself. He appears to have left the country on some business trip. Thereafter, the case was posted repeatedly to number of subsequent dates of hearing at which the plaintiff did not appear though he was represented by a counsel. In that circumstance the Court below recorded that the case of the plaintiff had been closed and permitted the defendant to lead his evidence in December, 1985. Thereafter, the defendant examined himself and closed his case and the Court proceeded to judgment after hearing the -arguments of both the sides.
5. On 16-12-1985 I.As. 8 and 9 were filed. I.A. 8 was filed by the plaintiff praying for the recall of D.W. 1 for cross-examination, as he had not been subjected to cross-examination. That came to be refused. I. A. 9 was an application under R. 1 of 0. 17- seeking adjournment, which also came to be refused. The Court then proceeded to judgment on 18-4-1986 and dismissed the suit after discussing the evidence on record. The primary reason for dismissal of the suit was that the plaintiff had failed to prove his case. Therefore, the present appeal.
6. Before us Shri C. R. V. Swamy, learned counsel for Shri H. S. Dwarkanath, has strenuously contended that the plaintiff did not have proper opportunity in the trial Court to prove his case and, therefore, this Court exercising its appellate power which are wide should set aside the judgment and decree and direct the trial Court to give another opportunity to the plaintiff to lead evidence and prove the issues. It is unnecessary for us to make it clear that that prayer within itself includes that if such an opportunity is given the defendant should also have an opportunity to Adduce further evidence. In fact the force of submission is that there should be a de novo trial in respect of the matter and issues raised in O.S. No. 3134 of 1981 on the file of the First Additional City Civil Judge, Bangalore. The learned counsel stated that there were several authorities for such a procedure being adopted. None has been cited before us. Order 18, makes it abundantly clear as to how the trial should commence and who should commence it and in what manner it may be reopened both for the defendant as well as for the plaintiff, depending on who is required to commence the case. Once it was decided that the plaintiff should commence the case and he did so commence the case. It will not be open to him to ask for recalling the witnesses for the defence to be subjected to cross-examination after having failed to cross examine him on the date when the defendant was examined. It is seen from the judgment under appeal that the excuse given by the plaintiff for his negligence to diligently prosecute the suit was that he had made a trip to foreign country on business and, therefore, he could not prosecute his suit with diligence. This it is submitted was something in the course of human conduct which this Court should take notice of and condone the lapse. It is not disputed that the plaintiff was represented by a counsel and that the counsel had taken several adjournments from the date the plaintiffs examination-in-chief was concluded on 7-6-1985. Nearly six months' time was given for the plaintiffs appearance. Again he did not. Therefore the question of this Court taking a lenient view of the fact that the plaintiff did not have adequate opportunity to present his case does not arise at all. The question of invoking S. 151, C.P.C. also does not arise, as specific provision is made for the conduct of trial under Orders 17 and 18 of the C.P.C. When the specific provisions are made it is not possible for anyone to press into service the inherent powers of the Court under S. 151, C.P.C. In the absence - of necessary evidence to substantiate the claim made by the plaintiff, if the trial Court rejected his claim, it cannot be said that that should be rectified by this Court, giving a second opportunity to the plaintiff to prove his case. That will be a mockery of our procedure.
7. In the case of Chandra Keerti v. Abdul Gaffar, (1970) 2 Mys LJ 201 : (AIR 1971 Mys 17) this Court examining the scope of 0 - 18, R. 3, C.P.C. came to the conclusion that the explanation to R. 2 of, 0. 18 which gives jurisdiction to the Court to direct any party to examine any witness at any stage does not enable a party who has not, exercised the option under R - 3 at the proper stage to adduce rebuttal evidence after the other party had closed his case. The power under the Explanation to R - 2 is a power of the Court to be exercised in the interest of justice and is not a right conferred on any party.
8. We cannot but agree with the view expressed by the learned Judge - The Court if it has to exercise its discretion rightly in the interests of justice, proper foundation to deserve that justice must be laid by the party seeking such justice. If no such foundation is laid, this Court cannot lean in favour of such parties. There is no merit in this appeal. We therefore reject it.
9. Before parting with the case, we must direct that the appellant is bound to pay the full court-fee which he has not paid by virtue of the order made in W -P - No. 18185 of 1986. He has paid only Rs. 3,000/-. The balance shall be paid within fifteen days by the appellant, failing which the Deputy Commissioner, Bangalore, is directed to recover the same as arrears of land revenue on a certificate issued by the Registrar of this Court.
10. Appeal dismissed.