GUPTA, J. - (1.) THIS appeal has been filed by the unsuccessful plaintiff against the judgment and decree of the Additional Sessions Judge, Sirohi, dated 8. 3. 1984, dismissing the plaintiff's suit.
(2.) THE present suit has been filed by the plaintiff for recovery of Rs. 24,919/-as Principal amount and Rs. 3400/-, being security deposit, Rs. 15,292. 80 Paise by way of interest on the said amount. THE brief allegations of the plaint are that the plaintiff was given an order to supply 24000 mts. of RCC Pipe. THE goods were to be delivered up to 1st of March, 1974. According to the plaintiff, for reasons beyond its control, the pipes could not be supplied, for which information was sent from time to time and ultimately, the goods were delivered up to 31. 5. 1975, but while making payments, a sum of Rs. 24919. 82 Paise remained outstanding. According to the plaintiff, at the time of accepting supply from the plaintiff, no penalty was imposed and the supply was accepted. It was only when the plaintiff made demand, rather pressed for the outstanding amount, the Chief Engineer, acknowledging the plaintiff's letter, accepted the amount to be outstanding, but gave out that while making payment, amount representing penalty to the extent of 1% will be deducted for delayed supply and the security deposit may also be withheld, at the same time, it was also ordered that if the plaintiff wants to take the balance amount, the plaintiff should give a Bank guarantee in favour of the Superintending Engineer PHED, Jodhpur Circle. THE plaintiff had challenged this order, imposing penalty also. The defendants contested the suit, inter alia, by denying the allegation about the delay in supply, being for reasons beyond the plaintiff's control, the defendant also contended to have never waived the penalty clause and gave out that the payment was withheld because the penalty was to be recovered and the couplings were not in workable condition and were not as per orders. The learned trial Court framed as many as six issues and though purported to decide all issues separately, but, in fact, has decided the whole controversy while deciding the issue of relief and has dismissed the suit. It is in this process that the learned trial Court has even gone beyond the pleadings of the parties. I have heard the learned counsel for the parties and have perused the record. I cannot restrain observing that the present is a glaring instance of utter callousness in conducting the litigation on the part not only both the litigating parties, but also on the part of the learned counsel appearing for the plaintiff and though the suit had been dispossed of, but the controversy between the parties has not been adjudicated. It has to be grasped that the trial Courts are expected not to merely dispose of the litigation one way or the other performing the ritual of trial, but are expected to make a sincere effort to arrive at the truth and to do real and substantial justice between the parties. If some counsel representing either of the parties may be on account of his lack of knowledge, or may be by carelessness, does not ask such questions to the concerned witness, which are necessary for the disposal of the case, even if formal, it cannot be conceded that the Courts should remain a silent spectator and then dispose of the suit on the basis of such omissions. The law confers ample powers on the Courts, at least on such occasions, to itself ask requisite questions which are necessary to arrive at the truth and do substantial justice to the litigating parties. In present case, it is heartending to note that the plaintiff has filed voluminous, being photostat copies of the communications of various authorities of the defendant, so also the copies of the books of accounts while the defendant has also filed the photostat copies of some documents. According to the order-sheets, the admission/denial of the documents was got done, but what I find from the record is that it is only the documents filed by the defendant that have not been admitted on the side of the plaintiff and there is no endorsement either nature of any other documents of the plaintiff. One still needs to comprehend as to what was this admission/denial of documents. Not only this, when the plaintiff had denied the documents of the defendant, the defendant was supposed to lead some evidence to prove those documents, but no evidence whatever has been led by the defendant. The things on the side of the plaintiffs are still worst, inasmuch as the plaintiff has only examined one Ram Chandra, the Manager of the plaintiff-firm, who has deposed about supply of the goods and has deposed to the effect that he never received any communication which might indicate that to prove the prevalent interest rate of the market. What is still more significant to note is that despite the documents produced by the plaintiff being on record, none of them have been got proved whether by summoning the original or getting them marked as Exhibits. In my feeling, this appears to be on account of lack of knowledge on the part of the counsel representing the plaintiff who probably could not comprehend that mere production of documents by itself is not sufficient proof of them. Yet another aspect of the matter is that while deciding issue No. 1, the learned trial Court found, in view of the above state of affairs, that no waiver of the right could be proved by the plaintiff. Perhaps meaning that though supply of the goods was made belatedly, but the plaintiff has failed to prove that the defendant has waived its right to recover penalty. Admittedly, no order or document, imposing penalty, has at all been proved or produced on the side of the defendants, in conjunction with this, admittedly, when goods having supplied by the plaintiff, though belatedly, admittedly, the payments of the plaintiff have been withheld under the purported colour of defendant's entitlement to recover penalty and the couplings not being in workable conditions. Thus, notwithstanding findings, it cannot be said that the suit filed by the plaintiff is entirely without any substance or that the plaintiff is not entitled to anything.
(3.) COUPLED with this, a look at para 11 of the judgment would show that without any pleadings having been taken or controversy having been raised on the side of the defendant, the learned trial Court has proceeded to assume a controversy about the plaintiff not having been proved to be a registered partnership firm and Pukhraj, the signatory of the plaint, a partner in the firm, it has also assumed that the witness Ram Chandra has also not shown his relationship vis-a-vis the plaintiff-firm and, thus, the query posed by the learned trial Court is "whether the plaintiff-firm could receive a decree in its favour on the deposition strength of PW 1 Ram Chandra and plaint strength of Pukhraj purporting to be partner of the plaintiff firm? The Court would not pass any decree which is incapable of execution and so would not deliver a waste paper in the garb of a decree and this would be the material consideration at this time when neither party before me pleads, objects or proves entitlement of the plaintiff firm to secure a decree from the Court. Since it would be a legal question, I have called upon myself independent of the two parties to answer the same as the provision under Section 69 sub-section (2) of the Indian Partnership Act are express as well as mandatory in nature and so assign a duty to the Court irrespective of the pleadings, arguments, waiver, consent or any other situation to not only look into the fact but when satisfied that the suit is not barred by the said section, then alone competency of the Court would accrue to pass the decree. " With this, the learned trial Court has held that the plaint nowhere evers the fact of registration and the Court finds that the capacity to sue does not lie in the plaintiff and no decree can be passed in favour of such a non-juristic person. It may at once be observed that enthusiasm of the learned District Judge apart, present is a case where if this controversy were raised, the situation would not have arisen, because as found from the record that the plaintiff has produced the requisite certificate and list of partners showing the signatory of the plaint to be one of the partners ever since the relevant time. It is a different story that final arguments on suit were heard on 8. 2. 1984 and the case was fixed for judgment on 21. 2. 1984, however, the judgment could not be pronounced on 21. 2. 1984, so also on 6. 3. 1984 and was pronounced on 8. 3. 1984. But the fact remains that immediately after hearing of the arguments and before pronouncement of the judgment, on 18. 2. 1984 itself, the plaintiff has produced the said certificate. It appears that this was done by the plaintiff because the learned trial Court must have made some observations during the course of hearing of the final arguments. At the same time, the fact also remains that in the above circumstances, the certificate has not been formally proved. Taking all the above facts and circumstances, so also keeping in mind, the consideration of the ultimate substantial justice of the parties, I feel persuaded to set aside the impugned judgment and decree and remand the case to the learned trial Court for calling upon the defendants to admit or deny the documents of the plaintiff and in case they deny, to give an opportunity to the plaintiff to prove them, thereafter, if the defendant so desires, to give him also reasonable opportunity of leading evidence and then to decide the case afresh in accordance with law. Since the matter is of the year, 1979, more than 20 years have already rolled by, it is directed that the trial Court should expeditiously dispose of the matter. ;