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2002 DIGILAW 1097 (PNJ)

Sahab Singh v. Sajjan Kumar

2002-10-22

V.M.JAIN

body2002
Judgment V.M.Jain, J. 1. This regular second appeal has been filed by the plaintiff against the judgment and Decree dated 16.2.2000 passed by the learned District Judge, whereby the appeal was allowed, the judgment and decree passed by the learned trial Court, were set aside and the suit of the plaintiff was dismissed. 2. The facts in brief are that Sahab Singh plaintiff had filed a suit for the recovery of Rs. 17,4007- against the defendants, with the allegations that defendants No.1 and 2 had taken a loan of Rs. 15,000/-, vide two separate cheques dated 5.3.1994 of Rs. 10,000/-and Rs.50007- respectively, totaling to Rs. 15,000/- from the plaintiff and that defendants No.1 and 2 had withdrawn the amount by depositing the said cheques in their saving bank account. It was alleged that defendants No.1 and 2 had agreed to pay interest on the said loan along with Rs. 15,000/- on demand. It was alleged that a sum of Rs.2400/-had fallen due towards interest besides Rs. 15,000/- towards principal and total amount recoverable was Rs.17,400/-. It was alleged that the plaintiff approached the defendants for the repayment of the amount Defendants No.1 and 2 issued cheque dated 5.5.1994 for Rs. 15,000/- in favour of the plaintiff and when the plaintiff had gone to the bank of the defendants for payment, it was found that the bank account, against which the said cheque had been issued, had been closed by defendants No.1 and 2 and accordingly, the cheque was returned to the plaintiff by the bank as unpaid. 3. In the written statement filed by the defendants, the allegations contained in paras 1 and 2 of the plaint, regarding taking of Rs.15,000/- as loan, were admitted by the defendants. However, it was denied that any condition regarding the repayment of loan amount was agreed by the parties. It was alleged that the rate of interest 1 per cent per annum was agreed to between the parties verbally. It was further alleged that the aforesaid amount was returned to the plaintiff vide cheque dated 11.10.1994 for Rs.5,000/-and the same was withdrawn by the plaintiff from the bank account. It was alleged that in this manner, the defendants had returned the loan amount in respect of one cheque for Rs.5,000/- and the interest was also repaid in monthly cash of Rs.50/-. It was further alleged that Rs. It was alleged that in this manner, the defendants had returned the loan amount in respect of one cheque for Rs.5,000/- and the interest was also repaid in monthly cash of Rs.50/-. It was further alleged that Rs. 10,000/- were given to one Brij Bhan, on the instructions from the plaintiff, vide cheque dated 3.10.1994, which was also withdrawn by Brij Bhan on behalf of the plaintiff and that the interest of Rs.700/- was paid in cash through monthly instalments of Rs.100/- to the plaintiff, but no receipt was obtained from, the plaintiff as the plaintiff was a close relation of the defendants. It was alleged that with regard to this payment, an agreement was also executed between the parties on 27.1.1995. It was alleged that there was no agreement that the rate of interest would be 2 per cent per annum but it was verbally agreed that the interest would be 1 per cent per annum and the same was duly paid. 4. The plaintiff filed replication to the written statement, controverting the allegations contained in the written statement, alleging therein that there was a committee of 20 members of which defendant No.1 was the President and defendant No.2 was the Treasurer and that the plaintiff was a bidder and gave a bid of Rs.5,000/- and thereupon, defendants No.1 and 2 issued cheque dated 11.10.1994 in favour of the plaintiff for the payment of said amount of Rs.5,000/-, which was withdrawn by him and that the amount of Rs.5,000/-, was not paid to the plaintiff in lieu of the amount of Rs.5,000/-which the plaintiff had advanced as loan to the defendants. It was denied that a sum of Rs. 10,000/- was paid to Brij Bhan under the directions of the plaintiff. It was also denied that the rate of interest agreed to was 1 per cent, but it was alleged that the rate of interest was 2 per cent. 5. After hearing both sides, the learned trial Court decreed the suit of the plaintiff for the recovery of Rs. 17,400/- alongwith cost and interest. The appeal filed by the defendants was allowed by the learned District Judge, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff was dismissed. 5. After hearing both sides, the learned trial Court decreed the suit of the plaintiff for the recovery of Rs. 17,400/- alongwith cost and interest. The appeal filed by the defendants was allowed by the learned District Judge, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff was dismissed. Now, the plaintiff has filed the present regular second appeal in this Court, challenging the judgment and decree passed by the learned District Judge. 6. Notice of motion was issued. Lower Court records were also summoned. 7. I have heard the learned counsel for the parties and have gone through the record carefully. 8. It has been submitted before me by the learned counsel for the plaintiff-appellant that the suit of the plaintiff-appellant was liable to be decreed on the short ground that the allegations made by the plaintiff in the replication were not controverted by the defendants and shall be deemed to have been admitted. Reliance has been placed on the law laid down by a Division Bench of this Court, in the case reported as "Salig Ram and Anr. v. Shiv Shhankar and Ors.," AIR 1971 Punjab & Haryana 437. 9. However, I find no force in this submission of the learned counsel for the plaintiff-appellant. In the plaint, the case of the plaintiff was that he had given Rs. 15,000/- as loan to defendants No.1 and 2, vide two cheques dated 5.3.1994, one for Rs.5,000/- and the other for Rs.10,000/- and that the defendants had given a cheque for Rs.15,000/-, which was dishonoured. The plaintiff was entitled to the recovery of Rs. 15,000/- as principal and Rs.2400/- as interest, totaling to Rs. 17,400/-. In the written statement filed by the defendants, it was alleged that Rs.5,000/- were repaid vide cheque dated 11.10.1994, which was duly got encashed by the plaintiff and that Rs.10,000/- were paid to Brij Bhan, vide cheque dated 3.10.1994, under the instructions from the plaintiff and that no amount was payable to the plaintiff. After considering the entire evidence led by the parties, it was found by the learned District Judge that not only Rs. 5,000/- had been returned to the plaintiff, vide cheque dated 11.10.1994, the remaining amount of Rs.10,0007- was also paid to Brij Bhan on the instructions of the plaintiff and in this manner, the entire amount of Rs. After considering the entire evidence led by the parties, it was found by the learned District Judge that not only Rs. 5,000/- had been returned to the plaintiff, vide cheque dated 11.10.1994, the remaining amount of Rs.10,0007- was also paid to Brij Bhan on the instructions of the plaintiff and in this manner, the entire amount of Rs. 15,000/- stood paid to the plaintiff. It was found by the learned District Judge that Sahab Singh plaintiff and Brij Bhan both had admitted in Court about the receipt of Rs.10,000/- from the defendants. It was also found that the interest was also paid to the plaintiff in cash in monthly instalments of Rs.50/- and Rs.100/- respectively. Thus, from the evidence on record, it was found by the learned District Judge that Rs.15,000/- had been repaid to the plaintiff, Rs.5,000/- directly to the plaintiff and Rs.10,000/- to Brij Bhan, under the instructions of the plaintiff. 10. So far as the claim of the plaintiff that the allegations made by him in the replication had not been denied by the defendants and as such it shall be deemed to have been admitted, is concerned in my opinion, on the facts and circumstances of the present case, it could not be said that the allegations made by the plaintiff in the replication shall be deemed to have been admitted by the defendants. In the replication altogether a different plea was taken by the plaintiff, with regard to the payment of Rs.5,000/- made by defendants No.1 and 2 to the plaintiff. The plaintiff had admitted the receipt of Rs.5,000/-, vide cheque dated 11.10.1994, but had alleged that this payment was in respect of a "committee". There is absolutely nothing on the record to show that the defendants were given any opportunity to file rejoinder to the replication filed by the plaintiff. It is also not the practice of the subordinate courts, in this part of the country, to allow the defendants to file rejoinder to the replication filed by the plaintiff. Even if the defendants have not filed any rejoinder to the replication, it would not mean that the defendants have admitted the allegations made by the plaintiff in the replication. It is also not the practice of the subordinate courts, in this part of the country, to allow the defendants to file rejoinder to the replication filed by the plaintiff. Even if the defendants have not filed any rejoinder to the replication, it would not mean that the defendants have admitted the allegations made by the plaintiff in the replication. This is especially so when under Order 8 Rule 9 CPC, subsequent pleadings (subsequent to the written statement) could not be filed in the Court except by the leave of the Court and upon such terms which the Court thinks fit. Thus, it would be clear that filing of a rejoinder to the replication is not a matter of right. Further-more, where the allegations made by the plaintiff have not been controverted by the defendants, by filing the written statement, the Court is not bound to decree the suit of the plaintiff without calling upon the plaintiff to produce evidence in support of his allegations. Under Order 8 Rule 5 (2) CPC, it has been provided that where the defendants had not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, but the Court may in its discretion, require any such fact to be proved. In this part of the country, it is the usual practice of the Courts that even where the defendants has not filed the written statement or his defence has been struck off or the defendant has been proceeded exparte, still the Courts do not pronounce judgment on the basis of the allegations made in the plaint but require the plaintiff to prove the allegations made in the plaint by producing evidence. In any case, in view of the provisions of Order 8 Rule 5(2) CPC, it could not be said that the Court is bound to pronounce the judgment on the basis of the facts contained in the plaint. 11. In the present, case, admittedly the case was fixed for evidence of the plaintiff. Under such circumstances, it would be clear that the trial Court had not thought it fit to pronounce the judgment on the basis of the allegations contained in the replication and the case was fixed for the plaintiffs evidence. 11. In the present, case, admittedly the case was fixed for evidence of the plaintiff. Under such circumstances, it would be clear that the trial Court had not thought it fit to pronounce the judgment on the basis of the allegations contained in the replication and the case was fixed for the plaintiffs evidence. Under such circumstances, the plaintiff-appellant was required to produce evidence not only with regard to the allegations made by him in the plaint but also in respect of the allegations made by him in the replication. It may be mentioned here that at this stage that not an iota of evidence was led by the plaintiff, with regard to the averments made by him in the replication with regard to the payment of Rs.5,000/- by the defendants to the plaintiff by virtue of cheque dated 11.10.1994 towards the payment in respect of a "committee", as alleged. Under such circumstances, in my opinion, it would be clear that the plaintiff had failed to produce any evidence in support of his allegations made by him in the replication. This is inspite of the fact that the case was fixed for plaintiffs evidence and the Court had not pronounced the judgment on the basis of the allegations made in the replication. 12. In Balraj Taneja and Anr. v. Sunil Madan and Anr. A.I.R. 1999 Supreme Court 3381, the defendants had not filed the written statement. The question arose as to whether the suit could be decreed, in view of the allegations made in the plaint, without any evidence having been led by the plaintiff, considering that the defendants had not filed any written statement to the allegations made hi the plaint. After considering the provisions of Order 8 Rule 5, Order 8 Rule 10 and Order 12 Rule 6, CPC, and Section 58 of the Evidence Act, it was held by the Honble Supreme Court that in a case where a written statement has not been filed by the defendant, the Court should be a little cautions in proceeding under Order 8 Rule 10, CPC. It was held that before passing the judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have admitted, a judgment could possibly be passed in favour of the plaintiff, without requiring him to prove any fact mentioned in the plaint. It was held that before passing the judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have admitted, a judgment could possibly be passed in favour of the plaintiff, without requiring him to prove any fact mentioned in the plaint. It was held that it was a matter of Courts satisfaction and, therefore, only on being satisfied that there was no fact, which needed be proved on account of "deemed admission", the Court could conveniently pass a judgment against the defendant, who had not filed the written statement. It was further held that if the plaint itself indicated that there were disputed questions of fact involved in the case, regarding which two different versions were set out, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. It was held that such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in Sub Rule 2 of Rule 5 of Order 8, CPC, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8, CPC. 13. In Shipping Corporation of India Ltd and another v. Nissar Export Corporation, A.I.R. 1981 Supreme Court 1212, the question before the Honble Supreme Court was as to whether the allegations, made in the plaint, shall be deemed to have been admitted in the absence of a specific denial in the written statement. In the said case, no such plea was taken before the trial Court and it was only for the first time in Appeal that such a plea was taken. After considering various aspects, it was found by the Honble Supreme Court that the plaintiff did not contend in the trial Court that the allegations, contained in paragraph 6 of the plaint, were not travesed by the appellants and, should, therefore, be deemed to have been admitted. It was found that no objection was raised to the trial Court, raising an issue on the matters stated in para 6 of the plaint. It was found that no objection was raised to the trial Court, raising an issue on the matters stated in para 6 of the plaint. Under those circumstances, it was held by the Honble Supreme Court that the plaintiff could not be permitted in these circumstances to raise for the first time in appeal the contention that a part of his claim must be deemed to have been admitted, for the reasons that it has not been traversed in the written statement. 14. In the present case as well, ho such question was raised on behalf of the plaintiff before the trial Court and it was for the first time before the District Judge that such a plea was taken on behalf of the plaintiff that the allegations, made by him, in the replication, should be deemed to have been accepted as no rejoinder to the replication was filed by the defendants. If the plaintiff was alive to this fact, such a plea could be taken before the trial Court. Furthermore, when the case was fixed for plaintiffs evidence, the plaintiff could have taken the plea that no evidence was required to be produced because his plea taken in the replication, had not been controverted by the defendants. 15. The authority Salig Ram and Anr. v. Shiv Shankar AIR 1971 Punjab and Haryana 437 (supra), relied upon by the learned counsel for the plaintiff-appellant, in my opinion, would have no application to the facts of the present case, in view of the provisions of Order 8 Rule 5(2) CPC and considering that the defendants were not authorised to file rejoinder to the replication except with the leave of the Court. 16. In my opinion, the learned District Judge had rightly dismissed the suit of the plaintiff and it calls for no interference by this Court in the present regular second appeal, especially when no substantial question of law is involved in this appeal. 17. For the reasons recorded above, finding no merit in this appeal, the same is hereby dismissed. No costs.