Sunil Kumar Garg, J. - (1.) This is a defendant No.1 appellant's first appeal against the judgment and decree dated 28.8.1981 passed by the learned Additional District Judge, Sri Ganganagar by which he decreed the suit of the plaintiff respondent in the manner that notice dated 1.5.1975 which was issued by the appellant-defendant No. 1 against the plaintiff respondent for recovery of Rs. l0,350/- was held null and void against the plaintiff respondent.
(2.) It arises in the following circumstances:- The plaintiff respondent filed a suit against the appellant-defendant No. 1 and one more other in the Court of District Judge, Sri Ganganagar on 28.7.1975 stating that plaintiff- respondent and one more defendant No.2 used to conduct business in the name of M/s. Meghraj Bawanidas at Karanpur for the sale of Lanced Poppy Heads. They have got a license for the year 1964-65 from the Excise Department. The District Excise Officer, Meerut, UP issued a permit No.146 dated 22.12.1964 in favour of the firm Ramanand, wholesale dealer in Lanced Poppy Heads at Meerut, for obtaining 150 quintal Lanced Poppy Heads. After receipt of the permit by the plaintiff-respondent, the plaintiff respondent, after taking permission from the Excise Department at Ganganagar, sent 150 quintal Lanced Poppy Heads to the firm Ramanand, Wholesale Dealer at Meerut. The said Lanced Poppy Heads were sent by the respondent on 23.12.1964 through two trucks and the said goods were received by the firm Ramanand at Meerut. About the receipt of the said goods, Excise Officer, Ganganagar enquired from the Excise Officer, Meerut and upon this, the Excise Officer, Meerut through letter No. 1368 dated 20.4.65 informed the Excise Officer, Ganganagar that 150 quintal Lanced Poppy Heads have been received by the firm Ramanand at Meerut. But, the appellant- dependant No. 1 issued a notice dated 1-5-1975 to the plaintiff respondent and claimed excise duty to the tune of Rs. 10,350/- on the ground that the said goods have not been received by the firm Ramanand at Meerut. The said notice dated 1.5.1975 was challenged by the plaintiff respondent in this suit and it was prayed that the said notice, being illegal and invalid, be declared as null and void, as the goods have been received by the firm Ramanand at Meerut. The suit of the plaintiff-respondent was contested by the appellant-defendant No. 1 by filing a separate written statement on 13.2.1976 and it was alleged by the defendant appellant that the goods i.e. 150 quintal Lanced Poppy Heads have not been received by the firm Ramanand at Meerut, but on the contrary the said goods remained in Ganganagar, therefore, the notice which was issued by the appellant-defendant No.1 was valid and the plaintiff-respondent was liable to pay excise duty. Hence, the suit of the plaintiff-respondent be dismissed. On the pleadings of the parties, the issues were framed by the learned lower Court. Note :- 1. That issue No. 1 which was originally framed by the learned lower Court was re-drafted by the order dated 12.1.1981 and burden of proving the issue No.1 was specifically placed on the plaintiff-respondent by the learned lower Court. 2. That in the lower Court both the parties did not lead any evidence and the learned lower Court decided the case on the basis of the material available on record. It may be stated here that during the hearing of the suit in the lower Court, the plaintiff respondent filed an application on 20.1.1979 before the learned lower Court and sought answers from the appellant-defendant No. 1 in respect of some interrogatories. The defendant No.1 appellant replied to the said interrogatories by separate reply which is dated 7.8.1979 and the material reply is in para 2, which runs as under :- "(2) That the verification of the Superintendent Excise, Meerut was received and intimation of that was given to the Circle Inspector Srikaranpur but the verification was based only on the statement of one Sh. Chuni Lal for Ramanand Babuji and no physical verification was done by the Authorities of Meerut. So the Circle Inspector was also asked for enquiry for the correctness of the verification. After that clarification was sought from the Superintendent Excise Meerut who informed that the firm had not produced any record and accounts and so the facts were not verified." Since there was no evidence on record and no documents were got exhibited before the learned lower Court, issue No. 1 was decided by the learned lower Court in favour of the plaintiff respondent holding :- (1) That from the said reply to the interrogatories, which has been reproduced above, it is established that the goods in question i.e. 150 quintal Lanced Poppy Heads were received at Meerut and information to that effect was received by the Excise Officer, Ganganagar. (2) That the District Excise Officer, Ganganagar enquired from the Excise Officer, Meerut about the receipt of the goods in question and upon this, through letter No. 1368 dated 20.4.1965, it was confirmed by the Excise Officer, Meerut that goods in question have been received at Meerut and since this allegation of the plaintiff respondent has not been specifically denied by the defendant No. 1 appellant in his written statement, learned lower Court took the help from these pleadings and decided the issue No. 1 in favour of the plaintiff-respondent and decreed the suit of the plaintiff respondent vide judgment and decree dated 28.8.1981. Aggrieved from the said judgment and decree dated 28.8.1981 passed by the learned Addl. District Judge, Sri Ganganagar, this first appeal has been preferred by the appellant-defendant No.l.
(3.) In this appeal, the learned counsel for the appellant-defendant No. 1 has raised the following contentions :- (1) That the learned lower Court has wrongly placed reliance on the answers given by the defendant No. 1 appellant to the interrogatories put by the plaintiff-respondent. The case of the defendant No. 1 appellant in this respect is twofold: (i) that from the reply to the interrogatories, no case as held by the learned lower Court in favour of the plaintiff respondent is made out; and (ii) that the reply to the interrogatories is no evidence in the eye of law and, therefore, the learned lower Court has wrongly relied on the reply to the interrogatories. (2) That the approach of the learned lower Court in deciding the issue No. 1 is wholly wrong one and the learned lower Court has decided issue No. 1 as if the burden lies on the defendant No.l - appellant and not on the plaintiff-respondent, therefore, the findings of the learned lower Court on issue No. 1 suffer from the material irregularity and illegality and liable to be set-aside.;