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Rajasthan High Court · body

2006 DIGILAW 1633 (RAJ)

AVTAR SINGH v. SANDEEP KUMAR

2006-05-11

SATYA PRAKASH PATHAK

body2006
Judgment ( 1 ) THE plaintiff has approached this court by filing the present appeal under Sec. 96 cpc against dismissal of Civil Original Suit no. 29/1998 (Avtar Singh Vs. Sandeep Kumar) with costs by Addl. District Judge No. 1, Sri ganganagar vide judgment dated 27. 08. 2001. ( 2 ) IN the suit for recovery, the appellant-plaintiff inter-alia averred that respondent-defendant who was engaged in selling agricultural goods Narma-kapas etc. in Sri ganganagar city, after purchasing 92 quintal 12 kgs Narma-kapas (cotton) from him at village kotha in the month of March 1994 @ Rs. 2000/-per quintal amounting to Rs. 1,84,240/- paid him rs. 15,000/- and for the rest amount of rs. 1,69,240/- in his own handwriting made an entry in the bahi (account book) of plaintiff to the effect that the balance amount will be paid by him by 05. 04. 1994, however, thereafter he neither purchased any goods from him nor paid the amount due. It was alleged that the defendant in order to davour his amount stopped the business of purchasing and selling of narma-Kapas etc. and has engaged himself in the business of Tent. It was further stated in the plaint that for payment of the balance amount many a times requests were made but the defendant did not gave any satisfactory reply and when he contacted the defendant on 10. 03. 1997 alongwith the witnesses then he refused to make any payment. Plaintiff claimed for a decree of Rs. 2,59,360. 30ps. including interest and also prayed for payment of principal Rs. 1,69,240 alongwith interest @18% from the date of filing of suit till realization with costs. ( 3 ) THE defendant in his written statement denied purchase of Narma from plaintiff in the month of March 1994 and his commitment for payment by 05. 04. 1994 in writing. He also denied plaintiff asking him for payment on 16. 03. 1997 in presence of any witness or meeting him. The defendant took the plea that the suit was barred by limitation as according to the plaintiff himself the period during which the goods sold to him was stated to be of march 1994. In better particulars, the defendant stated that the plaintiff lodged two first Information Reports against him and his father at Police Station Hindumal Kote under sec. 406 IPC in which he accepted having received Rs. In better particulars, the defendant stated that the plaintiff lodged two first Information Reports against him and his father at Police Station Hindumal Kote under sec. 406 IPC in which he accepted having received Rs. 50,000/- from the defendant and the police after investigation filed Final Reports which were accepted by the Court. According to defendant, the plaintiff is in habit of initiating false proceedings and in this chain, by filing the suit caused him much harassment and humiliation so the defendant is entitled to special damages to the tune of Rs. 3,000/ -. He prayed for dismissal of the suit with costs. ( 4 ) THE trial Court, on the basis of the pleadings of parties on 20. 05. 1999 framed issues to the following effect: 1. Whether the defendant in the month of March 1994 purchased 92 quintals 12 kgs Narma from plaintiff @rs. 2000/- per quintal and against that after making some payment, made an entry for the payment of balance amount of rs. 1,69,240 in the bahi of plaintiff?2. Whether the plaintiff is entitled to receive interest from 05. 04. 1994 @18% per annum on the aforesaid due amount of rs. 90,120. 30ps. ? 3. Whether the suit of the plaintiff is barred by limitation? 4. Relief? ( 5 ) BEFORE the trial Court, in support of his suit, the plaintiff examined himself as pw1, one Dharasingh as PW2 and relied on Ex. 1 in documentary evidence. As against this, defendant got examined himself as DW1 and relied on documents Ex. A/1, A/2 and A/3. The learned trial Court, after hearing the parties, taking into consideration the evidence brought on record, though decided Issue No. 3 relating to limitation in favour of the plaintiff but decided Issue No. 1 and 2 against him and found him not entitled to any relief. Hence the present appeal. ( 6 ) HEARD learned counsel for the parties. It has been the contention of learned counsel for the appellant that the trial Court committed error of law while deciding Issue no. 1 and 2 against the plaintiff. His further contention is that the trial Court has compared the signatures and found the signature on the bahi to be of the defendant-respondent then the conclusion regarding writing in Ex. 1 could not have been of any other person except the defendant. 1 and 2 against the plaintiff. His further contention is that the trial Court has compared the signatures and found the signature on the bahi to be of the defendant-respondent then the conclusion regarding writing in Ex. 1 could not have been of any other person except the defendant. It has also been contended that the signatures are to be compared with the signatures and writing has to be compared with the writing but the trial Court has not considered this aspect. It has also been submitted that by evidence it has been established that the defendant during the course of business transaction purchased Narma (cotton) from the plaintiff and the amount which was agreed between the parties was not paid, therefore, the suit was liable to be decreed. ( 7 ) ON the other hand, the contention has been that the trial Court has correctly recorded the evidence inasmuch as the execution of the document could not be proved as the attesting witness has not said so that the defendant put signatures in his presence but infact what he stated before the Court is that on his asking the plaintiff about the signatures, the plaintiff said that the signature on Ex. 1 was of Sandeep and then he also put the signatures and as such signature on Ex. 1 cannot be said to be made by the defendant in presence of PW2 Dhara Singh. The learned counsel further submits that the plaintiff appellant was in habit of lodging false criminal cases and frivolous money suits against the persons as would be clear from the fact that in the present case itself the plaintiff lodged two FIRs in the police station against defendant and his father wherein regarding the transaction of cotton, relating to the present matter, it has been stated that a sum of Rs. 50,000/- was paid to him whereas in the complaint it has been stated that only rs. 15,000/- were paid. The learned counsel submits that the trial Court has correctly dismissed the suit filed by the plaintiffappellant which calls for no interference by this Court. ( 8 ) I have considered the submissions made before me. In the present case, the point for consideration is as to whether the trial Court has properly recorded the findings or the same require interference by this Court? ( 8 ) I have considered the submissions made before me. In the present case, the point for consideration is as to whether the trial Court has properly recorded the findings or the same require interference by this Court? ( 9 ) IT is to be seen that in the present case entry Ex. 1 has been made in the bahi of plaintiff regarding the business transaction in relation to Narma (cotton) sold to the defendant and the amount which was paid and remained to be paid to him. PW1 states that in the year 1994, he sold 92 quintals of Narma @ Rs. 2,000/- per quintal to the defendant and defendant agreed to make payment of the remaining amount. The total cost of Narma is stated to be Rs. 1,84,240/- and out of this amount, only Rs. 15,000/- is said to have been paid. He further states that on Ex. 1 at place marked a to b, the writing is of the defendant and the same also bears the signatures of defendant at place c to d. ( 10 ) HE also stated that in presence of two witnesses viz. Dhara Singh and Arud Singh, defendant had put his signatures. In the last of his statement, he has stated that the defendant also agreed and wrote on Ex. 1 that in case the amount is not paid by him by 5th of april, 1994 then he shall make double the payment of amount due. The objection raised regarding improper stamp on the document was not disposed of at the time of recording the statement but a note is appended that the objection would be disposed of at the time of the disposal of the case. In the cross examination, the witness has denied that he lodged two FIRs but he has admitted that some judgment was delivered by the High Court which was sent to him and it was directed by the High court to agitate the matter in civil Court. He has shown his ignorance about the fact that a mention was made in the FIRs lodged against the defendant that a sum of Rs. 50,000/- was paid in relation to the subject matter of the present case. The witness admits that on the day when narma was sold, on that day entries were not made. He has shown his ignorance about the fact that a mention was made in the FIRs lodged against the defendant that a sum of Rs. 50,000/- was paid in relation to the subject matter of the present case. The witness admits that on the day when narma was sold, on that day entries were not made. He has admitted in his statement that the bahi containing handwriting of the defendant Ex. 1 was not a regular bahi used in the course of business but was only for the purpose of keeping the transactions in memory. ( 11 ) PW2 Dhara Singh is the other witness, who says that his signatures are available on Ex. 1. In the statement, he has stated that he asked the plaintiff about the signatures of defendant sandeep, then plaintiff replied that the signatures were of the defendant and he thereafter put his signatures on Ex. 1. In the cross examination, he has shown ignorance about the lodging of first information report by the plaintiff against defendant and his father. He stated that he was called in the Court by the plaintiff. As against this, defendant in his statement has denied any transaction in relation to business with the plaintiff. DW1 sandeep Kumar, the defendant, has proved three documents which are Ex. A/1 to A/3 in relation to First Information Report, Final Report and the order by which Final Report was accepted by the Court. In the cross examination, a suggestion has been put in relation to due payment that a sum of Rs. 5,000/- was paid by his brother to the plaintiff. ( 12 ) THE two issues framed by the trial court were in relation to execution of the document and regarding entitlement of the plaintiff to receive interest. It can be said at the very outset that as far as the bahi is concerned, it was not being maintained in the regular course of business and as this bahi shows only one dealing of the defendant, it cannot be said to be an authentic document. In the evidence, this fact has been admitted that the bahi was not being maintained in the regular course of business. It is also important to notice here that the attesting witness has stated in his chief itself that on the plaintiff saying about the signatures of defendant in the bahi Ex. 1, he signed on it. In the evidence, this fact has been admitted that the bahi was not being maintained in the regular course of business. It is also important to notice here that the attesting witness has stated in his chief itself that on the plaintiff saying about the signatures of defendant in the bahi Ex. 1, he signed on it. ( 13 ) IT is also an important aspect of the matter that in relation to the subject matter of the present suit, the plaintiff lodged two firs against the defendant, wherein his version was that a sum of Rs. 50,000/- was paid to him whereas in the Bahi Ex. 1 the entries show that he received only Rs. 15,000/ -. Not only this, even a suggestion has been put to DW1 on behalf of the plaintiff that on 03. 06. 1997 a sum of rs. 5,000 was paid to him. Be as it may, one thing is absolutely clear that the facts having not been placed correctly before the trial court, the case now clearly depends upon the writings alleged to have been made by defendant. The trial Court has compared the signatures and was of the opinion that signatures were of the defendant whereas writing was not of the defendant. ( 14 ) THE contention of the learned counsel was that signatures were required to be compared with signatures and as regards writing is concerned, it was required to be compared by the handwriting, which has not been done in the present case. Sec. 73 of the Evidence Act, empowers the Court in cases where it is considered proper to make comparison of the handwriting to reach to a proper conclusion. ( 15 ) THE Court, while examining the signatures and handwriting taking into consideration the admitted handwritings and disputed writings normally form opinion after taking into consideration the resemblance or difference of the writings produced with respect to the general character of the writing, forms of letters including relative number of diversified forms of each letter, use of capitals, abbreviations, stops, paragraphs, mode of effective erasure or of inserting inter-lineation or corrections etc. In the instant case, the trial Court though has observed that signature on Ex. 1 was of defendant but in my humble opinion even if it is assumed to be correct that Ex. In the instant case, the trial Court though has observed that signature on Ex. 1 was of defendant but in my humble opinion even if it is assumed to be correct that Ex. 1 contains the signatures of defendant then also the plaintiff was required to prove that there was some business transaction in between them and infact it was the defendant who wrote about the repayment of due against him. ( 16 ) IT is very strange that in Ex. 1 a note has been appended that if upto 5th of April, 1994 the amount is not paid then double the amount will be paid to the plaintiff. The evidence led by the plaintiff has not established that this writing made by the defendant was in presence of the witnesses and infact it was the defendant who wrote the same. ( 17 ) THE material, which has been brought on record by the plaintiff, is not sufficient for decreeing the suit in favour of the plaintiff. The trial Court after considering the entire evidence has reached to the conclusion that the plaintiff was not able to prove Issue No. 1 and 2 and I find no infirmity in the findings recorded by the trial Court on the issues framed. Under the circumstances, no interference is called for in the judgment and decree passed by the court below while exercising jurisdiction under section 96 of the Code of Civil Procedure. Thus, the answer to the point framed is that the trial court has properly recorded the findings and reached to a correct conclusion in dismissing the suit filed by the plaintiff. ( 18 ) THE First Appeal being devoid of merit is dismissed. Under the circumstances, there shall be no order as to costs.