SUMERMAL Vs. HUKMA

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff against the judgment and decree of the Senior Civil Judge, Jalore reversing that of the Munsif, Jalore in a suit for recovery of a pumping set or in the alternative Rs. 1000/- as its cost.

(2.) IT was alleged by the plaintiff that on 13th June, 1953, he gave one pumping set engine CMC American make, 15-M type with 4-1/2 to 5 H. P. Petrol Kerosine Engine coupled with 3" pump and mounted on steel wheel trolly to the defendants for repairs. The plaintiff alleged that the cost of this engine was Rs. 1000/ -. Since the defendants failed to return the engine inspite of demands, he filed the present suit.

(3.) FURTHER there was an important document on record which was relied upon by the trial court i. e. , Ex. 6. Plaintiff's case was that the engine described in the plaint was given to the municipality. In Ex. 6 Bansilal defendant admitted that the same engine belonged to the plaintiff. If the learned Judge had considered that document he could not have said that Bhikampuri's evidence rebutted the plaintiff's case. It appears from the judgment of the learned Judge in so far as the credibility of the plaintiff's witnesses was concerned, he did not disagree with the trial court. What the learned Judge found was that the evidence failed to establish the identity of the engine which the plaintiff alleged in the plaint to have been given to the defendants for repairs. As stated earlier if the learned Judge had read the evidence of these witnesses along with the evidence of the plaintiff, he would not have arrived at this conclusion. In such circumstances when material evidence both oral and documentary in the case was not considered by the learned Judge in first appeal and the evidence of witnesses was misread it will be open to this Court to make a fresh appraisal of the evidence and to arrive at its own conclusion. Finding of fact in such cases would not be binding in second appeal. In my opinion the above mentioned evidence of the plaintiff fully establishes that the engine described in paragraph 1 of the plaint was given to the respondents for repairs. The trial court gave a decree to the plaintiff directing the defendants to return the engine mentioned in the plaint failing which they would be liable to pay Rs. 1000/ -. The question is whether the trial court was right in fixing Rs. 1000/- as the price of the engine. The learned Senior Civil Judge says that the plaintiff has failed to prove the price of the engine at the time it was entrusted to the defendants for repairs. The cost price of the engine according to cash memo Ex. 3 was Rs. 1485/- and the plaintiff purchased it in Smt. 2003 for Rs. 1000/ -. For more than two years it remained with the plaintiff and it is in evidence that it went out of order several times and needed repairs. It would, therefore, not be right to fix the price of the engine at Rs. 1000/- at the time it was given to the defendants for repairs. By the time it was given to the defendants it must have depreciated in value. In my view the depreciation in value of the engine must have been 10% annually and keeping that in view and the fact that it needed repairs, the proper cost price of the engine at that time should be Rs. 750/ -.