9911796707
TMI Blog2002 (5) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts of the bills/invoices was either paid at that time and at times bills amounts were paid lateron. In the year 1997 respondent purchased tickets but failed to pay the amounts. When oral requests failed to yield the result the appellant issued registered notice on 19th January, 1998. It was duly received by the respondent on 11th February, 1998. Despite notice when respondent failed to make the payment, suit for recovery was filled. 2. This suit was contested by the respondent, primarily on the ground that tickets against those bills/ invoices Ex. PW2/1 to PW2/30 had not been received by the respondent. That the bills/invoices had been forged and fabricated. The transaction as alleged had been denied by the respondent. According to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in placing the burden on the appellant to prove those facts as alleged by the respondent. 6. To appreciate these challenges let us have glance to the evidence adduced by the parties. Shri Jitender Nath Sharma appearing as PW-1 proved that the respondent had been buying tickets from his company since 16th October, 1996. He had been remitting payments against the bills/invoices raised by his company. However, in the year 1997 various tickets were purchased by the respondent for which bills/invoices were raised but payments not made. He proved the carbon copies of those bills/invoices as Ex. PW-2/1 to PW-2/30. These bills/invoices are duly endorsed by the employees of the respondent in acknowledgement of having received the tickets. These e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Bhupinder, Amit and Bhopal writing and signing, and therefore, could identify their signatures. These bills/invoices had been prepared by him or under his supervision by his colleagues namely Arti and Pushkar Sharma. He also recognised their writing and signatures. Those bills which were not prepared by him, he used to check them before handing over the same to the respondent. Along with these bills/invoices tickets were also collected by those employees of the respondent in his presence. When subjected to cross-examination he clarified the procedure of collecting of the tickets, bills and of payment by the respondent. According to him some time payment was made at the time of delivery of tickets and at time subsequently. At the time of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to prove by a cogent and reliable evidence that the signatures on Ex. PW-2/1 to PW-2/30 were not of those employees or they had no authority to deal with the appellant or that they were not in his service at the relevant time. Having failed to discharge this burden and having kept back the best evidence namely the attendance register, salary register and/or any other document, we feel the learned trial Court fell in error in not drawing adverse inference against the respondent. How could the Court below blame the appellant for not summoning those four employees of the respondent? Once the appellant through the testimony of Shyam Lal Kamta PW-2 proved that the bills/invoices bear the signatures of respondent's employees who si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id employees of the defendant. It has come in the evidence of the defendant that the firm of the defendant is functional even on the day when he had given his evidence in this case. The burden of proving that the Air Tickets against bills Ex.PW-2/1 to PW-2/30 were received by the above-said employees of the defendant, was upon the plaintiff which the plaintiff had failed to discharge. 10. Above observations are not only against the facts but contrary to well settled principle of law. For production of the witnesses the provisions of Order 12 Rule 8, CPC, does not apply. Order 12 Rule 8 CPC deals with production of documents. Moreover, appellant through the unrebutted testimony of PW-2 established that these bills/invoices were endorsed/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to prove this document Ex. PW-2/12. We fail to understand by which logic the trial Court made these observations. Law as we all know postulates that an admitted document need not be proved. There was in fact nothing for the appellant to prove an admitted document. The error is thus writ large in the observation and conclusion reached by the trial Court. 13. There is another aspect of the matter which negates the argument of the respondent and that is that the appellant served a legal notice on the respondent vide Ex. PW-1/3. No reply the same was given by the respondent. But inspite of the same no adverse inference was drawn against the respondent. This Court in the case of Kalu Ram v. Sita Ram 1980 RLR (Note) 44 observed that service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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