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2003 DIGILAW 552 (MP)

Tejumal v. Ram Pratap Jaiswal

2003-04-16

A.K.AWASTHY

body2003
JUDGMENT The appellant/plaintiff has preferred this appeal against the Judgment and decree dated 12.5.1998 passed in Civil Suit No. 17B/95 by the IInd Additional District Judge, Murwara Distt. Jabalpur whereby the suit for recovery of Rs. 51,600/- was dismissed. The case of the plaintiff is that on 23.8.1992 defendant borrowed a sum of Rs. 30,000/- from the plaintiff for performing the marriage of his son's daughter and agreed to pay the interest of 2% per month and executed the 'Hundi'. It is alleged that defendant even after service of notice has not returned the principal amount of Rs. 30,000/- and interest, total Rs. 51,600/-, plaintiff has prayed that the decree be passed of Rs. 51,600/- along with furture interest and cost of the suit. The defendant has denied that he has taken Rs. 30,000/- as a loan and agreed to pay the interest. The defendant has further denied that the 'Hundi' (Ex. P-1) was written and signed by him. Defendant has averred that the relationship of landlord and tenant is existing between the plaintiff and defendant and there was loan due on the defendant which had become time barred. That the plaintiff has forged the 'Hundi' and the false case is filed by the plaintiff and as such the compensatory cost of Rs. 2,000/- be awarded to be defendant. Learned trial Court has examined the plaintiff and his witness Vijay Kumar (PW 2) and after examining the defendant dismissed the suit of the plaintiff and awarded the compensatory cost of Rs. 1,000/- to the respondent/defendant. Appellant/plaintiff has challenged the decree and judgment on the ground that the learned trial Court has not properly appreciated the evidence on record. That the impugned judgment and decree deserves to be set aside and he has prayed that suit should be decreed. Plaintiff Tejumal has stated that on 23.8.1992 he gave Rs. 30,000/- as loan to the defendant and the 'Hundi' Ex. P-1 was written and signed by the defendant. Vijay Kumar (PW 2) has stated that in his presence plaintiff gave the loan of Rs. 30,000/- to the defendant and Ex. P-1 was written and signed by the defendant. The statements of Vijay Kumar (PW 2) are consistent and there is no earthly reason to disbelieve him. The learned trial Court has observed that the plaintiff has not examined the hand-writing expert to prove that Ex. 30,000/- to the defendant and Ex. P-1 was written and signed by the defendant. The statements of Vijay Kumar (PW 2) are consistent and there is no earthly reason to disbelieve him. The learned trial Court has observed that the plaintiff has not examined the hand-writing expert to prove that Ex. P-1 was in the hand-writing of the defendant and it was signed by the defendant. In my opinion, in view of the statement of Vijay Kumar (PW 2), it was not incumbent on the plaintiff to examine the hand-writing expert but the onus was on the defendant to examine the hand-writing expert to show that EX.P/1 is not written and signed by him. There is difference between the burden of proof and burden or onus of adducing the evidence. The burden of establishing remains throughout the entire case exactly where the pleadings originally place it. It never shifts. The burden or onus of proof in the sense of introducing evidence may shift constantly as evidence is introduced by one side or the other, as the one scale or the other prepondrates. The learned trial Court has erred in discarding the evidence of Vijay Kumar (PW 2) and wrongly placed the onus of examining the hand-writing on the respondent/defendant. In my considered opinion, the appellant/plaintiff has succeeded in proving that defendant has executed Ex. P-1. In the aforesaid circumstances of the case, it was not proper on the part of the learned trial Court to doubt the genuineness of Ex. P-1 on the ground that the appellant/ plaintiff has not produced the account book relating to the loan extended to him vide Ex.P-l. From the 'Hundi' Ex. P-1, it is clear that loan of Rs. 30,000/- was taken by the respondent/defendant on the interest @ 2% per month. The agreed interest at the rate of 2% per monthis exorbitant. As such I hold that the plaintiff is entitled to get the interest at the rate of 6% per annum from the date of its execution. Consequently, I hereby set aside the judgment and decree dated 12.5.1998. It is, therefore, ordered and decreed that respondent/defendant to pay Rs. 30,000/- to the appellant/plaintiff. The respondent/defendant will pay interest at the 6% per annum from 23.8.1992 till the realisation of the amount. Consequently, I hereby set aside the judgment and decree dated 12.5.1998. It is, therefore, ordered and decreed that respondent/defendant to pay Rs. 30,000/- to the appellant/plaintiff. The respondent/defendant will pay interest at the 6% per annum from 23.8.1992 till the realisation of the amount. The defendant will bear his own costs of the suit and appeal and he will also bear the cost of the suit incurred in appeal and in the civil suit by the appellant/plaintiff. Counsel's fee is allowed as per scale, if certified. The decree be drawn up accordingly.