SHAKUNTALA GUPTA Vs. G. SARANAPPA

JUDGEMENT

(1.) IT is one of the unfortunate cases where notwithstanding the absence of the Defendant and non -participation by him in the trial, the Trial Court has chosen to dismiss the suit for recovery of money based on goods sold and delivered under the provisions of Sale of goods Act. The Court has thought fit to proceed under Order 9, Rule 6(1)(a) of Code of Civil Procedure and declared the Defendant as ex parte. The Trial Court further referred to Section 2(9) which defines judgment and finds that the suit can be disposed of by passing an order under the provisions of Section 2(9). It also referred to Order 29, Rule 4(1) of Code of Civil Procedure which contemplates framing of points for determination and it is enough that such judgment of small cause contains such points alone. On point No. 1, the Court comes to the conclusion that the Plaintiff has proved that it has sold one colour TV to first Defendant on 2.2.1989 for Rs. 14,875/ - on credit basis under the guarantee of Defendants 2 and 3. On the question of delay penalty of Rs. 200/ - per month it declined to grant such a relief. On the question of limitation, the Court found that Ex.P.2 the suit document was dated 2.2.1989 and the suit has been filed on 30.3.1993. The Trial Court relied upon Article 14 of the Limitation Act and began to count the time for which period begins to run as date of delivery of goods. Though Ex.P.2 mentions about the payment of instalment, it was seen by the Court below that no particulars are given regarding the instalments. Referring to Articles 15 and 16 of the Limitation Act, the Court finds that Ex.P.3 was not proved. Notwithstanding that, it has been pleaded in the plaint that the last instalment was paid by the first Defendant on 17.8.1991, the Court held that it has not been proved. One fail to understand as to how such a plea can be held to be not proved. PW -1 has admitted that the Defendant has made payments of 22 instalments. When the Plaintiff himself says that towards the payment due, 21 instalments have been paid, there is no reason for the Court to disbelieve such a statement. It only evidences non -application of mine and improper appreciation of evidence on record.

(2.) LEARNED Judge for dismissing the suit has relied upon the dictum reported in Syed Haisanulla and Others Vs. Ahmad Beig and Another, AIR 1988 Kant 93 . This dictum has been wrongly understood by the learned Judge. The above ruling mainly formulates how an ex parte judgment must be. Such ex parte judgments have been condemned by this Court on more than one occasion. The judgment as laid down by the Code of Civil Procedure though it might be an ex parte judgment, must contain a precise of the plaint and the points that arose for determination and it should also record the findings. It should also contain succinctly the summary of the discussion of the evidence and the effect of the document in the suit. Nothing of the sort has been done in this case.

(3.) A reference was also made to the dictum of the Supreme Court in Sudha Devi Vs. M.P. Narayanan and Others, AIR 1988 SC 1381 , wherein the Supreme Court has considered the ex parte decree passed by the original side of the Court. That was a case where an ex parte decree was passed in favour of the Plaintiff and the Defendant failed to appeal against the decree which was ultimately the subject matter of the above case disposed of by the Supreme Court. The Supreme Court has considered whether evidence can be relied upon for the purpose of proving the pleading mentioned in the plaint and holding that the evidence are not included in the definition of evidence under Section 3 of the Evidence Act. But however, that can be used as evidence only for sufficient reason under Order 19, Rules 1 and 2. In that case also the Supreme Court found that the Plaintiff has chosen to examine some evidence in a case which is not relevant to the claim made.