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2011 DIGILAW 11 (GUJ)

Prajapati Dahyabhai Savjibhai v. Shah & Co.

2011-01-11

RAJESH H.SHUKLA

body2011
Judgment Rajesh H. Shukla, J.—The present Second Appeal has been filed under Section 100 of the Civil Procedure Code by the appellant-original defending challenging the Judgment & Order dated 30.01.1997 passed by the Learned 2nd Joint District Judge, Ahmedabad (Rural) at Mirzapur in Regular Civil Suit No. 50 of 1995, wherein following substantial question of law are raised :— “(1) Whether in the facts and circumstances of the case, if the appellant had denied execution of promissory note, the respondent is obliged to prove the execution as well as consideration of the promissory note? (2) Whether in the facts and circumstances of the case, if the alleged consideration is of settlement of account by virtue of Money Lending Loan Act and if the appellant disputes the settlement of account, the plaintiff is required to prove the account and thereby the amount mentioned in the promissory note?” 2. The brief facts of the case are that Civil Suit No. 35/1993 was filed by the respondent-original plaintiff in the Court of the Learned Civil Judge (JD) at Dehgam for the recovery of Rs. 4,450/- from the present appellant-original defendant. It is stated that the promissory note was executed and as the amount was not recovered, ultimately Suit was filed for the recovery of the amount with interest i.e. total amount of Rs. 7,080/-, which was dismissed by the Learned Civil Judge (JD), Dehgam vide Judgment and Order dated 05.08.1995. Against which, Regular Civil Appeal No. 50/1995 came to be filed challenging the said judgment, which came to be allowed by the Learned 2nd Joint District Judge, Ahmedabad (Rural) at Mirzapur vide Judgment & Order dated 30.01.1997. 3. Learned Counsel, Mr. Mukesh Dave appearing for the Learned Counsel, Mr. Umesh Trivedi for the appellant submitted that the Suit was not decreed and the lower Appellate Court has failed in appreciating the evidence, particularly with regard to execution of the promissory note itself, which is produced at Exh. 18. It was submitted that the signature was disputed and as there is no evidence about the opinion of the handwriting expert as per Section 17 of the Evidence Act, the lower Appellate Court has failed in appreciating these aspects while allowing the appeal. He has also made submission with regard to limitation that the Suit was barred by limitation, which has not been considered. Therefore, the present appeal may be allowed. 4. He has also made submission with regard to limitation that the Suit was barred by limitation, which has not been considered. Therefore, the present appeal may be allowed. 4. Though the submissions have been made, first aspect is with regard to the execution of the promissory, which was produced at Exh. 18 suggesting the execution thereof. Therefore, whether it was with the signature of the present appellant is required to be considered. As discussed, considering the smallest of the amount, opinion of the handwriting expert could not have been obtained. But the lower Appellate Court has considered the conduct of the appellant even after the service of the notice and filing of the reply, it has not been disputed. It is also considered in light of the pleading, Exh.13 (written reply) and deposition at Exh.24, wherein it has been specifically stated that there is inconsistency. Therefore, having considered the material and evidence and the findings arrived at by both the Courts below and considering the submissions, the execution of the promissory note cannot be disputed. The contention with regard to the signature which might have been taken as a defence would also be required to be considered in light of the evidence and the conduct as discussed by the lower Appellate Court. Therefore, without any further elaboration, considering this smallest of the amount as also the principal amount has already been deposited as well as the findings arrived at on the basis of the appreciation of evidence, this Court is not inclined to entertain the present Second Appeal as it cannot be said that there is any miscarriage of justice or there is any substantial questions of law is involved. It can also not be said that the lower Appellate Court has misdirected in appreciation of evidence or findings are perverse. 5. Therefore, having regard to the aforesaid facts and circumstances, the present second appeal cannot be entertained in light of the settled legal position that scope of second appeal under Section 100 of Code of Civil Procedure is very limited and unless any substantial question of law involves, the Court need not entertain such second appeal as observed by the Hon’ble Apex Court in the judgment reported in (2007) 1 SCC 546 in the case of Gurdev Kaur & Ors. vs. Kaki & Ors., wherein the Hon’ble Apex Court has clearly observed that :— “Now, High Courts can interferse thereunder only where substantial questions of law are involved and have been formulated in the memorandum of appeal – The amendment clearly indicates that the legislature never intended the second appeal to become a third trial on facts.” 6. Therefore, the present Second Appeal deserves to be dismissed. Accordingly, the present Second Appeal stands dismissed. P P P P P