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2009 DIGILAW 827 (PNJ)

Dharam Pal v. Prithi Singh

2009-04-29

MAHESH GROVER

body2009
Judgment Mahesh Grover, J. 1. This Regular Second Appeal is directed against judgments and decrees dated 8.4.2003 and 27.4.2005 passed respectively by the Civil Judge (Junior Division), Jagadhari (hereinafter referred to as `the trial Court) and the Additional District Judge, Yamuna Nagar at Jagadhari (described hereinafter as `the First Appellate Court) whereby the suit of the plaintiff-respondent was decreed and the appeal of the defendant-appellant was dismissed. 2. A suit for recovery of Rs. 1,54,000/- (Rs. 1,00,000/- on account of principal and Rs. 54,000/- as interest thereon at the rate of 18% per annum from 11.5.1994 till date) was filed by the respondent against the appellant with a prayer for grant of pendente lite and future interest. It was pleaded that the appellant had taken a loan from the respondent and had executed a pronote and receipt dated 11.5.1994. Since the amount was not returned, the appellant was constrained to approach the Court. 3-4 Upon notice, the appellant appeared and filed his written statement contesting the suit. He denied the execution of the pronote and receipt in question and set up a plea of fraud. The parties went to trial on the following issues :- 1. Whether the defendant borrowed a sum of Rs. one lac from plaintiff and executing a pronote and receipt in favour of the plaintiff on 11.5.94, if so, its effect ? OPP 2. Whether the defendant agreed to repay the loan with interest @ 18% per annum ? OPD 3. Relief. 5. After appraisal of the entire evidence, the trial Court came to the conclusion that the execution of the pronote and receipt by the appellant stood established. Accordingly, the suit was decreed for recovery of Rs. 1,54,000/- along with interest at the rate of 10% per annum from the date of institution till the date of actual payment. 6. Feeling aggrieved, the appellant filed an appeal which was dismissed by the First Appellate Court and the findings recorded by the trial Court were affirmed. 7. Hence, this Regular Second Appeal. 8. While assailing the findings of the Courts below, learned counsel for the appellant argued that sufficient evidence was not available before them to conclude that the pronote and receipt were validly executed by the appellant. He further argued that there was no occasion for the appellant to take loan from the respondent, who is neither a Commission Agent nor a money lender. He further argued that there was no occasion for the appellant to take loan from the respondent, who is neither a Commission Agent nor a money lender. He contended that only the scribe of the pronote has been produced and his testimony could not be relied upon as he is the nephew of the respondent. It was next contended that no attesting witness of the pronote was examined and, therefore, no reliance could be placed thereon. Learned counsel for the appellant submitted that the case of the appellant was covered by numerous judgments of this Court wherein it has been laid down that if the attesting witness of a document is not produced, the execution thereof cannot be held to have been proved. Lastly, it was contended that the entire proceedings have been initiated at the behest of Ashok Kumar, who was partner of M/s Raghbar Dass Hukam Chand, with whom the appellant was having civil and criminal litigation. 9. On the other hand, learned counsel for the respondent contended with reference to the record that the pronote was on a printed proforma and no regular scribe was required to write the same. He further contended that the signatures of PW2-Harpal Singh appears as an attesting witness on the pronote and, therefore, the requirement of law has been sufficiently met. He argued that the judgments of the Courts below which are concurrent in nature, do not warrant any interference from this Court. 10. I have thoughtfully considered the rival contentions/ arguments and have minutely gone through the record. 11. On 27.2.2008, at the time of motion hearing, the following substantial questions of law were framed for consideration in the appeal :- 1. Whether the learned Courts below were justified in accepting the pronote and receipt inspite of the fact that the attesting witness had not been produced as per settled law in 1992 C.C.C. 308 and 1998(3) CCC 381 ? 2. Whether the learned Courts below were justified on relying upon the report of handwriting expert PW3 against whom strictures had been passed by the Civil Judge (Jr. Division), Jagadhari in another case Ex D22 ? 3. Whether the learned Courts below were justified in relying on the statement of Shri Harpal Singh PW3 (sic PW2), who is an interested witness being nephew of the plaintiff ? 12. Division), Jagadhari in another case Ex D22 ? 3. Whether the learned Courts below were justified in relying on the statement of Shri Harpal Singh PW3 (sic PW2), who is an interested witness being nephew of the plaintiff ? 12. It is evident from the file of the trial Court that pronote and receipt have been proved as Exhibits P1 and P2, respectively. A look at Exhibit P1 reveals that it is on a printed proforma and was not required to be written in a manner which has been suggested by the learned counsel for the appellant. On the bottom of Exhibit P1, signatures of Harpal Singh -PW2 appear, who had signed as an attesting witness. In this view of the matter, the contention of the learned counsel for the appellant that the attesting witness of the pronote was not produced and, therefore, it could not be relied upon, is totally meaningless. Merely because the attesting witness happens to be the nephew of the respondent does not imply that he could not be an attesting witness to a duly executed document. 13. The contention of the learned counsel for the appellant that the pronote was scribed by PW2-Harpal Singh is also meaningless in view of the fact that it is on a printed proforma and had merely required the gaps to be filled in. 14. The appellant had pleaded a fraud. Both the parties have produced handwriting experts, who examined the signatures of the appellant on the pronote and the receipt. The opinion of the handwriting expert produced by the appellant was discarded, while the opinion of the handwriting expert produced by the respondent was accepted by the Courts below. In my opinion, the reasoning of the First Appellate Court on this point while accepting the one expert opinion and discarding the other, is erroneous as it has observed that the science of handwriting examination is not a perfect science. But, in any eventuality, if the reports of both the experts are discarded, even then having a glance at the pronote and receipt and keeping in view the fact that the same have been proved by the attesting witness whose testimony could not be shattered, I am of the opinion that the pronote & receipt were not the result of forgery or fabrication. 15. 15. The contention of the learned counsel for the appellant that the instant proceedings were initiated at the instance of Ashok Kumar, who was inimical towards the appellant cannot be accepted as this fact was never pleaded nor any evidence was led. 16. No other point has been urged. 17. On the basis of the above discussion, the questions of law are answered accordingly in favour of the respondent and against the appellant. 18. The appeal is held to be devoid of any merit and is accordingly dismissed. However, keeping in view the provisions of Section 34 of the C.P.C., the future interest granted is reduced to 6% per annum while the interest pendente lite is maintained.