Prem Kumar v. Raj Kumar

1. This Regular First Appeal under Section 96 of the cOde of Civil Procedure,1908 (CPC) is filed by the plaintiff in the suit impugning the judgment of the Trial Court dated 25.11.2016 by which the trial court has dismissed the suit for recovery of Rs.3,90,000/- filed by the appellant/plaintiff/Advocate, suit amount was claimed being the fees not paid by the respondent/defendant to the appellant/plaintiff with respect to two cases in the High Court being Crl.M.C. Nos. 2018:DHC:3839 3576/2010 and 3748/2010 against the judgments passed by Additional Sessions Judge in Criminal Revision Nos. 38/2010 and 39/2010.

2. At the outset it may be noted that whereas the appellant/plaintiff led evidence and proved his case, no evidence was led by the respondent/defendant, and nor did the respondent/defendant cross-examined the appellant/plaintiff. In fact, the respondent/defendant was proceeded ex-parte vide order dated 17.2.2014. The respondent/defendant moved an application under Order IX Rule 7 CPC which was dismissed as withdrawn and another application under Order IX Rule 7 CPC was then dismissed on 18.4.2016.

3. The facts of the case are that the appellant/plaintiff pleads that he was engaged as an Advocate by the respondent/defendant to appear in two cases in the High Court being Crl. M.C. Nos. 3576/2010 titled as Raj Kumar Vs. Uma Shankar and Others and 3748/2010 titled as Raj Kumar Vs. States against the judgments passed by Additional Sessions Judge in Criminal Revision Nos. 38/2010 and 39/2010. The case of the appellant/plaintiff is that the respondent/defendant agreed to pay a sum of Rs.55,000/- for each case for drafting and filing of the two criminal petitions in the High Court and also agreed to pay a sum of Rs.25,000/- per hearing. Appellant/plaintiff pleaded that only a sum of Rs.10,000/- each was paid for the two cases but the respondent/defendants did not pay the balance fees for drafting and filing of Rs.45,000/- for each case and also did not pay charges for hearings in which the appellant/plaintiff appeared in the High Court in the aforesaid two criminal M.C.

4. Appellant/plaintiff filed his affidavit by way of evidence and proved on record various documents being the order sheets in the two Criminal M.C. petitions filed in this Court as also the legal notice dated 17.7.2013 along with the postal receipts. The documents have been proved as per the affidavit by way of evidence of the appellant/plaintiff as Ex.PW1/1 to Ex.PW1/7. As already stated above appellant/plaintiff was neither cross-examined by the respondent/defendant nor the respondent/defendant led evidence.

5. Trial court by the impugned judgment has dismissed the suit by observing that appellant/plaintiff led only oral evidence and therefore the same is not sufficient to discharge the onus of proof.

6. In my opinion, the impugned judgment of the trial court is clearly against law and is bound to be set aside inasmuch as once the appellant/plaintiff appeared in the witness box, proved his case by filing the necessary documents being the order sheets of two criminal cases, as also legal notice which was duly served upon the respondent/defendant and which was not replied to, in cases such as the present such oral evidence has to be believed for decreeing of the suit. This is all the more so when the respondent/defendant has not contested the suit and has no courage of conviction to appear in the witness box to prove his case and stand the test of cross-examination.

6. At this stage, appellant/plaintiff who appears in person, states that no hearing fees would be charged for appearances on 18.11.2010, 19.12.2011 and 16.5.2012 as the appellant/plaintiff was not personally present. Also, no hearing fees would be payable for 24.11.2011 when the Hon’ble Judge was on leave. There a sum of Rs.1,00,000/- is to be reduced from the total suit amount of Rs.3,90,000/- and consequently appellant/plaintiff only claims a decree for a sum of Rs.2,90,000/-.

7. In view of the aforesaid discussion this appeal is allowed and the impugned judgment of the trial court dated 25.11.2016 is set aside. Suit of the appellant/plaintiff will stand decreed against the respondent/defendant for a sum of Rs. 2,90,000/- along with pendente lite and future interest till payment at 6% per annum simple. Appellant/plaintiff will be entitled to costs of this appeal as also the suit. Appeal is accordingly allowed and disposed of in terms of the aforesaid observations. Decree sheet be prepared. JULY 04, 2018 VALMIKI J. MEHTA, J AK