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2006 DIGILAW 1594 (PNJ)

Dharam Singh v. Dharamjit Singh

2006-04-21

HEMANT GUPTA

body2006
Judgment 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below on the basis of pronote dated 31.12.1999. 2. Both the Courts have returned a concurrent finding of fact that pronote Exhibit P.1 and receipt Exhibit P.2 stand executed. Such finding is based upon the testimony of PW1 Jeet Singh, the attesting witness and the scribe PW2 Kesar Singh. It has been also found that the handwriting and finger prints expert PW4 Atul Kumar Singla has proved that the disputed signatures on the pronote and the receipt tallied with the standard signatures of the defendant on the written statement and the vakalatnama. 3. It has been also found that the Bank Account Exhibit P.11 shows that the plaintiff has withdrawn an amount of Rs.60,000/- on 31.12.1999 i. e. the date when the said pronote in the sum of Rs.80,000/- was executed. Learned counsel for the appellant has vehemently argued that the plaintiff has infact advanced a sum of Rs.66,000/- on 10.5.1998 and the said aspect has not been taken into consideration on the ground that the appellant has not pleaded such fact in the written statement. Learned counsel argues that non-pleading of such fact cannot be a ground not to consider the evidence lead by the appellant when the onus of proof of the pronote is on the plaintiff. 4. However, I am unable to agree with the contention raised by the learned counsel for the appellant. The advancement of Rs.66,000/-on 10.5.1998 by the plaintiff in favour of the defendant was required to be pleaded on the basis of which the plaintiff could lead evidence in respect of the said pleading. In the absence of any pleading, the evidence led is an after thought and has been rightly brushed aside by the Courts below. Still further, learned counsel for the appellant has argued that pw2 Kesar Singh, the Scribe is in fact, a financier, who has misused the blank papers obtained by him in respect of a loan in which the appellant was a guarantor. The appellant has relied upon the receipt Exhibit d.1, which is executed by Kesar Singh in favour of DW2 Dharam Singh. 5. The said Dharam Singh is not the present appellant. The said receipt cannot affect the claim of the plaintiff based upon pronote on which Kesar singh happens to be a scribe. The appellant has relied upon the receipt Exhibit d.1, which is executed by Kesar Singh in favour of DW2 Dharam Singh. 5. The said Dharam Singh is not the present appellant. The said receipt cannot affect the claim of the plaintiff based upon pronote on which Kesar singh happens to be a scribe. Both the Courts have appreciated the entire evidence to return a concurrent finding of fact that the amount of rs.80,000/- was advanced on the basis of pronote Exhibit P.1 on 31.12.1999 and the substantial amount out of such amount i. e. Rs.60,000/- was withdrawn from the Bank account. The Handwriting Expert as well as the attesting witness have been produced to prove the execution of the pronote. The said findings are based upon appreciation of evidence, which do not call for any interference in the present second appeal. Learned counsel for the appellant has also argued that the pronote Exhibit P.1 is insufficiently stamped. However, no such argument has been raised by the appellant before the Courts below. It is a mixed question of law and fact, which cannot be permitted to be raised in the second appeal for the first time. Thus, I find that no substantial question of law arises for consideration. Hence, the present appeal is dismissed.