9911796707
TMI Blog2022 (4) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... t signature of any employee of concerned department who has received the material and even no cross-examination was done with regard to supply of material through Ex P-8 to Ex.P-28. Even from examining the evidence of the plaintiff it is not clear to whom the plaintiff has supplied the material and who has signed the receipt - It was incumbent upon the plaintiff to prove the signature of person who has signed the challan by adopting the course by the person who signed or wrote a document; by calling a person in whose presence the documents are signed or written; by calling handwriting expert; by calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written; by comparing in Court, the disputed signature or handwriting with some admitted signatures or writing; by proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. These steps have not been taken by the plaintiff to prove the challan, therefore, it cannot be held that material was supplied by the plaintiff as per the challan. It is well settled legal position is that initial onus is always upon the plaintiff t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding dishonour of cheques on 22.01.2001. The plaintiff sent legal notice under Section 80 CPC to the defendant through his counsel on 08.05.2001 for releasing the payment but they did not release the payment. It has been further contended that in pursuance of the notice defendant No. 2 has forwarded memo mentioning the amount payable by them to defendant No.1 still the amount has not been paid, therefore, he has filed civil suit and prayed that decree be granted directing the defendants to pay ₹ 60,000/- along with 6% interest. 4. The defendants have filed the written statement denying the allegation made in the plaint mainly contending that the plaintiff has not supplied the material as mentioned in the plaint and it is also denied that on 06.01.2000 the defendant No.1 has ever issued any order to the plaintiff for supply the stationary items or the defendant No.2 has given any cheque to the plaintiff of ₹ 40,000/- ₹ 20,000/- on 14.07.2000. It has been further reiterated that since the plaintiff has not supplied the material and if he would have supplied the material then record must be available in the stock register of the year 2000 and would pray for dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff. He has also denied that cheque (Ex.P-5) has been issued from the office. He has denied that plaintiff is entitled to get interest on the some dues and he has stated that since no record is available in the office he has given this statement. 8. Learned trial Court after appreciating the evidence, pleading material on record has allowed the suit by recording the finding that after dishonour of cheque to the tune of ₹ 60,000/- payment has not been made, therefore, the trial Court directed the defendant to pay ₹ 60,000/- along with interest @ 6% per annum to the plaintiff from the date of filing of the suit i.e. 28.01.2004 till payment is actually made. 9. Being aggrieved by the judgment and decree passed by the trial court on 14.08.2006, the defendants have filed First Appeal under Section 96 CPC before this Court. 10. Learned counsel for the appellants would submit that finding recorded by the trial Court is perverse, contrary to the record as the plaintiff has failed to prove that he has supplied the material to the defendants. He would further submit that as per Ex.P-4, the value of material comes to ₹ 47,724/- whereas the alleged bounced ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt. Similarly, in the cross-examination, the witness has admitted that as per Ex.P-4 he has supplied the material thereafter additional supply order was given to him but he has not filed any document to show that the supply order is made to him. He has also admitted in his cross-examination that no specific order for supply of material valued at ₹ 61,464/- has been given to him. It is well settled practice in the government department that supply order is always made in writing but no work order has been placed by the plaintiff before the trial Court. Learned trial Court has heavily relied upon the challan from Ex.P-8 to Ex.P-28 but from the challan it is not established that material was supplied and received by the department. It is pertinent to mention here that in the challan BEO Pharasagaon has been mentioned and one signature is there but whether this signature was put by the respective officer of the department or not, it is not established, therefore, it cannot held that material was supplied by him. Since the plaintiff has failed to discharge his burden therefore, burden cannot shift to the defendant to prove their case. It was incumbent upon the plaintiff to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to a relief, then onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In this case nothing has been discharged by the plaintiff. The plaintiff has not proved by adducing cogent evidence on record that he has supplied the material and thereafter payment was not made. 17. Hon'ble Supreme Court in the case of Anil Rishi vs Gurbaksh Singh ( 2006) 5 SCC 558 has held as under;- There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
