Allowed

Smti Asha Devi Jindal v. Power Grid Corporation of India Ltd. and 10 Ors.

Gauhati HC22 Oct 2019RFA/55/2013

Case brief

AI extract

What is this about?

In this first appeal, the Gauhati High Court held that a presumption against the plaintiff for not appearing personally does not preclude consideration of evidence adduced by their firm's Manager. The High Court set aside the Trial Court's dismissal and remanded the case for merits evaluation.

What did the court decide?

Impugned judgment dated 31.05.2013 set aside; case remanded to Trial Court to consider Manager's evidence on merits.

Smti Asha Devi Jindal Vs Power Grid… — Contract and Commercial Disputes | Gauhati HC (2019)

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Page No.# 1/7

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GAHC010012972013

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RFA 55/2013

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1:SMTI ASHA DEVI JINDAL

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W/O SRI RAJENDRA KUMAR JINDAL R/O SONAI ROAD, SILCHAR -6, PROPRIETOR OF ALLIES DISTRIBUTOR A PROPRIETARY FIRM HAVING ITS OFFICE AT SONAI ROAD, SILCHAR-6

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VERSUS

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1:POWER GRID CORPORATION OF INDIA LTD. and 10 ORS, REGISTERED OFFICE HEMKUNT CHAMBERS, 10TH FLOOR, 89 NEHRU PLACE, NEW DLEHI 110019

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2:THE DEPUTY GENERAL MANAGER POWER GRID CORPORATION OF INDIA LTD. SILCHAR DIVISION OFFICE AMBIKPATTY SILCHAR 788004 P.S. SILCHAR DIST. CACHAR

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3:THE DEPUTY GENERAL MANAGER FINACE POWER GRID CORPORATION OF INDIA LTD. G.S. ROAD SHILLONG-1

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4:THE CHIEF MANAGER Cand M POWER GRID CORPORATION OF INDIA LTD.

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5:THE MANAGER Cand M

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POWER GRID CORPORATION OF INDIA LTD. BOTH OF OLD A.P. SECTT BUILDING G.S. ROAD SHILLONG-1

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6:THE CHIEF MANAGER CONSTRUCTION

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Page No.# 2/7

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POWER GRID CORPORATION OF INDIA LTD.

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7:THE MANAGER CandM POWER GRID CORPORATION OFINDIA LTD. BOTH OF SILCHAR DIVISIONAL OFFICE AMBIKAPATTY SILCHAR 788004 CACHAR. 8:THE CHIEF MANAGER POWER GRID CORPORATION OF INDIA LTD. P.O. RATIABARI 799264 KUMARGHAT DIST. TRIPURA TRIPURA. 9:THE DEPUTY MANAGER POWER GRID CORPORATION OF INDIA LTD. AIZAWL MIZORAM 10:THE DEPUTY MANAGER FINANCE POWER GRID CORPORATION OF INDIA LTD. SILCHAR. 11:THE ASSTT. ENGINEER POWER GRID CORPORATION OF INDIA LTD. KOLASIB MIZORAM

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Advocate for the Petitioner : MR.D SENAPATI

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Advocate for the Respondent : MR.S DUTTA

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BEFORE HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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22.10.2019

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Heard Mr. G.N. Sahewalla, learned Senior Counsel appearing for the

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appellant, assisted by Ms. S. Kataki. Also heard Mr. N.C. Das, learned counsel

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appearing for all the respondents assisted by Mr. A. Das.

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Page No.# 3/7

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This Regular First Appeal has been filed against the judgment dated 31.05.2013 issued by the Court of Civil Judge No. 2, Cachar, Silchar, by which the Title Suit No. 38/2000 has been dismissed, on the ground that the plaintiff/appellant did not adduce evidence in the Trial Court.

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The facts of the case in brief is that the appellant, who is the proprietor of Allied distributor, had filed Title Suit No. 38/2000 against the respondents, praying for various decrees with regard to hiring of vehicles to the respondents, as well as recovery of money for premature release of the hired vehicles by the respondents.

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The appellant/plaintiff did not adduce evidence in the Trial Court herself and instead, the Manager of the Proprietory concern adduced evidence, with regard to the claim made by the appellant. The learned Trial Court however dismissed the suit on the ground that the Manager of the proprietory concern could not have adduced evidence in place of the appellant, as the same is not legal evidence. Also, the Manager was not authorized to appear before the learned Trial Court in place of the Appellant/Plaintiff.

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The appellant’s counsel submits that the findings and decision of the learned Trial Court is unjustified and perverse, inasmuch as, the learned Trial Court should have considered the evidence of the Manager of the Proprietory Firm on merit and the learned Trial Court could not have presumed the appellant’s case to be a fabricated case without looking into the merits of the evidence. He accordingly prays that the impugned judgment dated 31.05.2013

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Page No.# 4/7

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should be set aside and the case remanded back to the learned Trial Court for reconsideration of the case on merit, by considering the evidence adduced by the manager of the proprietory Firm.

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Mr. N. C. Das, learned counsel for the respondents submits that the learned Trial Court did not commit any error in dismissing the suit, inasmuch as, the plaintiff did not appear in the witness box and as such, the presumption arose that the case set up by the appellant was not correct. He also submits that as the appellant did not give any power of attorney to the Manager of the firm to appear on behalf of the appellant, the evidence of the Manager could not be considered to be admissible evidence. He thus submits that the present appeal should be dismissed.

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I have heard the counsels for the parties.

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The impugned judgment dated 31.05.2013 passed in Title Suit No. 38/2000, which had dismissed the suit due to the following observations and findings made by the Trial Court, is reproduced below:-

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’’ Let me examine whether the evidence tendered by the PW-1 who claimed that he is fully conversant of the facts and circumstances of the case could depose before the court by filing examination-in-chief on affidavit for and on behalf of the plaintiff herself that too without authorising him to do so by giving any power of attorney.

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The Honourable apex court, in the case of Vidhyadhar, Appellant v. Manik Rao and another, respondents, reported in AIR 1999 Supreme Court 1441observed that where a party to the suit does not appear into the witness box and states

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Page No.# 5/7

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his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.

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The apex court also held in the case of Janki Vashdeo Bhojwani and Anr. V. Industrial Bank Ltd & Ors, reported in AIR 2005 SC 439that power of attorney holder cannot depose in place and instead of his principal.

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Here in instant case it is admitted position that the plaintiff did not appear into the witness box and to state her case on oath. So the plaint filed by her remains a mere pleading and not proved which gives rise to a strong presumption that the case set up by her is not correct.

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Moreover, the P.W. 1 who claims to be the Manager of the proprietary firm of the plaintiff is not duly authorized to depose in this case. He is the Manager of the Firm and not the personal manager of the plaintiff. Admittedly the suit was filed by the plaintiff in her personal capacity. The law is clear that even though the Manager is given power of attorney to conduct the case, then even he cannot depose in place and instead of his principal.

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So, the evidence adduced by the PW. 1 is not legal evidence. Accordingly this issue is decided against the plaintiff.’’

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A perusal of the judgment of the Apex Court in Vidhyadhar, Appellant v. Manik Rao and another (supra) states that where the party does not appear into the witness box and states his own case and does not offer himself to be crossexamined by the other side, a presumption would arise that the case set up by him is not correct. The Trial Court erred in considering the fact that the Apex Court had only stated that a presumption would arise. However, presumption does not mean proof or take the place of proof. Further, it should be kept in

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Page No.# 6/7

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mind that the Manager appeared as a witness for the appellant.

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In that view of the matter, this Court is of the view that the evidence given by the Manager of the firm should have been considered by the learned Trial Court on its own merit and without immediately coming to conclusion that the case of the appellant was incorrect.

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In respect to the judgment of the Apex Court in Janki Vashdeo Bhojwani and Anr. V. Industrial Bank Ltd & Ors. (supra), the Apex Court has held in Para 18 that the Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. The power of attorney holder of a party can appear only as a witness in his personal capacity, but he cannot appear as a witness on behalf of the principal.

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In the present case, the Manager of the firm is not the power of attorney holder, but is apparently the manager of the proprietorship firm. He has appeared as a witness of the appellant. Further, the learned Trial Court should also have considered, whether there can be a difference between a sole proprietorship and the proprietor. The question whether the manager is really the manager of the proprietorship firm can also be decided after the Trial Court discusses the evidence adduced on record. In any event, this Court is of the view that there is no bar for the manager of the firm to give evidence as a witness. Also, even if the appellant has not adduced any evidence, the evidence of the manager of the firm will have to be considered by the trial Court, even if the appellant has filed the Title Suit as an individual or as a proprietor of a firm.

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Page No.# 7/7

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In view of above reasons, this Court is of the view that the learned Trial Court should consider the evidence given by the manager of the proprietorship/proprietor on its own merit and thereafter come to a finding as to whether the claim made by the appellant can be decreed. There cannot be a presumption, without the evidence being decided on merit.

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In that view of the matter, this Court is of the view that the case should be remanded back to the learned Trial Court, so as to enable the learned Trial Court to consider the evidence of the manager of the proprietorship concern, on its own merit. Consequently, the impugned judgment dated 31.05.2013 passed by the Court of the Civil Judge No. 2, Cachar, Silchar in Title Suit No. 38/2000 is hereby set aside. The case is remanded back to the learned Trial Court to consider the evidence adduced by the appellant’s Manager on it’s own merit and after having a discussion on the same, come to a finding with respect to issue No. 4 only.

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Accordingly, this case stands disposed of. Send back the LCR.

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The parties shall appear before the learned Trial Court on 02.12.2019.

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JUDGE

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Comparing Assistant

Smti Asha Devi Jindal v. Power Grid Corporation of India Ltd. and 10 Ors.

Case brief

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What did the court decide?

Smti Asha Devi Jindal v. Power Grid Corporation of India Ltd. and 10 Ors.

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