Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 974 (HP)

Tarlok Singh v. Ram Dayal

2012-12-13

DHARAM CHAND CHAUDHARY

body2012
JUDGMENT Dharam Chand Chaudhary, J. The challenge herein is to the judgment and decree, dated 30.4.2001 passed by learned District Judge, Kinnaur in Civil Appeal No.28 of 2000 whereby the judgment and decree passed on 31.5.2000 by learned Sub Judge, Rampur Bushahr in Case No.55-1 of 1998, declining thereby the decree for recovery of Rs.42,730/-, has been confirmed. 2. The appellant (hereinafter referred to as “the plaintiff” for convenience sake), on the basis of agreement Ex.PW-1/A claims that the respondent (hereinafter referred to as “the defendant” for short) had borrowed a sum of Rs.36,000/- from him and in lieu thereof agreed to send 262 apple boxes to M/s. JAC, New Delhi on 22.9.1997, failing which to pay the plaintiff double the amount of loan, i.e. Rs.72,000/-. The defendant, however, refuted the claim so laid by the plaintiff and in the written statement besides raising the preliminary objections as to locus standi of the plaintiff to file the suit and he being not a money lender allegedly was liable to be dealt with under the Service Rules, had come forward with the version that he neither borrowed Rs.36,000/- from the plaintiff on 29.9.1997 nor promised to send apple boxes to M/s. JAC, New Delhi. No agreement was executed by him in this behalf and the writing, if any, was alleged to be forged one and result of conspiracy hatched by the plaintiff in connivance with S/Shri Karam Singh and Partap Chauhan against him. 3. The claim and counter claim so laid on both sides has led in settlement of the following issues:- 1. Whether plaintiff is entitled for the decree of recovery of Rs.42,730/- as prayed? OPP. 2. Whether plaintiff has no locus-standi to file this suit? OPD. 3. Whether this suit is not maintainable & is without cause of action? OPD. 4. Relief. 4. The parties were put to trial. The plaintiff in turn has himself stepped in the witness box as PW-1 and examined PW-2, Shri Karam Singh, one of the attesting witnesses to the agreement Ex.PW-1/A. The defendant, on the other hand, has himself stepped in the witness box as DW-1. Besides Ex.PW-1/A, reliance on behalf of the plaintiff was also placed on legal notice Ex.PW-1/B, he allegedly served upon the defendant. 5. Besides Ex.PW-1/A, reliance on behalf of the plaintiff was also placed on legal notice Ex.PW-1/B, he allegedly served upon the defendant. 5. Learned trial Judge while answering issue No.1 against the plaintiff has dismissed the suit by concluding that the document Ex.PW-1/A being not on the proper stamp paper and signed by both the parties nor stamped with proper fee, is not legally and validly executed document, hence, not an agreement in the eyes of law. Learned lower appellate Court while concurring with the findings recorded by the trial Court, has dismissed the appeal vide judgment and decree impugned in this Court. 6. The legality and validity of the impugned judgment and decree has been questioned on the grounds, inter alia, that the findings recorded by the lower appellate Court are neither supported by evidence available on record nor any provisions of law. The real point of controversy has neither been considered nor appreciated in accordance with law and to the contrary, the evidence on record has been mis-read and mis-appreciated and that as a result thereof, the findings recorded by both the Courts below are vitiated. Defendant has denied the filing of written statement, therefore, the suit should have been decreed. The own version of the defendant that Ex.PW-1/A was prepared in collusion with S/Shri Partap Chauhan and Karam Singh, marginal witnesses, itself reveals that he has admitted the execution of this document. This aspect, however, is stated to be not properly considered. 7. The appeal was admitted on the following questions of law:- 1. Whether payment of Rs.36,000/- by the plaintiff to the defendant can be said to be disproved in view of the provisions of Section 269SS of the Income Tax Act, 1961? 2. Whether the findings of the learned courts below are based on no evidence? 3. Whether the defence of the defendant was liable to be struck down on account of the fact that the defendant denied his signatures on the written statement? 8. Learned counsel representing the plaintiff has forcefully contended that in view of there being no written statement on record as the defendant allegedly denied his signatures on the written statement and his conduct that power of attorney Ex.PX is also not thumb marked by him, itself was sufficient to have decreed the suit. In this Court also, the defendant opted not to put in appearance despite service. In this Court also, the defendant opted not to put in appearance despite service. According to learned counsel since the execution of agreement Ex.PW-1/A is duly proved on record and keeping in view the fact that the plaintiff is an agriculturist and income from agriculture/horticulture is exempted from the provisions under Section 269SS of the Income Tax Act, 1961, the plaintiff should not have been non-suited on the ground that in view of the provisions, ibid, he was duty bound to pay the amount in question as loan to the defendant by cheque. 9. The present is a case of concurrent findings recorded by both Courts below. Such findings, if recorded after proper appreciation of the evidence on record, should not be interfered with in a regular second appeal. The interference can only be in a situation when the judgment and decree is perverse and not legally and factually sustainable. The Apex Court has held in Bandhu Mahto (dead) by LRs. and another Versus Bhukhli Mahatain and others, (2007) 10 SCC 564 that the concurrent findings recorded after proper appreciation of the evidence should normally be not interfered with in regular second appeal. The relevant portion of this judgment reads as follows:- “On examination of the reasonings recorded by the First Appellate Court, which are affirmed by the learned Single Judge of the High Court in Second Appeal, we are of the view that the judgments of the First Appellate Court as well as the High Court are well-reasoned based upon proper appreciation of the entire evidence on record. No question of law much less a substantial question of law was involved in this case before the High Court. We do not find any perversity or infirmity in the concurrent findings of fact recorded by the First Appellate Court and affirmed by the learned Single Judge of the High Court to warrant interference in this appeal. None of the contentions of the learned counsel for the plaintiffs-appellants can be sustained.” 10. It is well settled that a party to the lis has to stand on its own legs. In a case where the defendant/ respondent is ex-parte and written statement/reply to the lis is not filed nor the same is contested, in that event also, the relief sought in the plaint/petition cannot be allowed merely on asking and without any proof thereto. In a case where the defendant/ respondent is ex-parte and written statement/reply to the lis is not filed nor the same is contested, in that event also, the relief sought in the plaint/petition cannot be allowed merely on asking and without any proof thereto. In the present case, written statement is on record. Whether the same was shown to the defendant or not when he stepped in the witness box, is not established on record as the question seems to have been put to him was that “the written statement bears his signature or not”, to which he offered denial. It is not suggestive of from the record that his signature was shown to him in the written statement and it is after seeing the written statement, he denied the same to be not his signature. Even if the written statement is excluded from the record, in that event also, there is no iota of evidence to suggest as to what was the purpose of obtaining loan by the defendant from the plaintiff. As nothing to this effect has come either in the so called agreement Ex.PW-1/A or in the statement of the plaintiff and that of PW-2 Shri Karam Singh, where was the occasion for the plaintiff to have given `36,000/- as loan to the defendant and in lieu thereof apple boxes were to be sent by the latter to M/s JAC, Delhi as the former was an employee of H.P. State Co-operative Bank and not an agent of M/s JAC, Delhi, because the suggestion given to PW-2 to this effect was denied. Had there been any understanding between the plaintiff and M/s JAC, Delhi, it would have been so pleaded and proved on record. Thus, when the plaintiff has failed to prove as to why the defendant was in need of money, it cannot be believed by any stretch of imagination that the amount in question was given as loan by him to the defendant. The agreement on the face of it has not been signed by the plaintiff though the same allegedly is signed by the defendant and the marginal witnesses PW-2 Karam Singh as well as Partap Chauhan. However, for want of signature of the plaintiff, a necessary party thereto, the same cannot be said to be a legally executed document. The same is also not on appropriate stamp paper. However, for want of signature of the plaintiff, a necessary party thereto, the same cannot be said to be a legally executed document. The same is also not on appropriate stamp paper. At the time of marking exhibit on this document, it was objected to on the ground that it is neither properly stamped nor bears the signature of the plaintiff. The record reveals that the plaintiff never approached the trial Court to stamp this document appropriately and affix proper court fee thereon. The present is thus a case where the plaintiff has miserably failed to prove the payment of Rs.36,000/- he made to the defendant. The findings so recorded by both the Courts below are based on proper appreciation of evidence and documents available on record. 11. This Court, however, is not in agreement with that part of the judgment and decree which deals with Section 269SS of the Income Tax Act, 1961 qua dismissal of the suit with the observation that the plaintiff, who was an employee of the Bank neither counted for this amount in his income tax return for the financial year 1997-98 nor paid Rs.36,000/- to the defendant through cheques as required under Section 269SS for the reason that the evidence as has come on record by way of own statement of plaintiff in cross-examination besides his income from employment, he was owner in possession of an orchard over a piece of land measuring five bighas and one more orchard was in the name of his wife also. Therefore, in terms of the 2nd proviso to Section 269SS, the provisions contained under this Section are not applicable to a loan transaction or deposit when the person from whom the loan or deposit is taken or accepted and the person by whom the loan or deposit is taken or accepted, are both having agricultural income and either of them has any income chargeable to tax under this Act. As noticed supra, the plaintiff is a Horticulturist. However, there is nothing on record to suggest that the defendant is not an agriculturist. 12. True it is that the plaintiff is an assessee to income tax, however, he was submitting his return as ‘nil’. As noticed supra, the plaintiff is a Horticulturist. However, there is nothing on record to suggest that the defendant is not an agriculturist. 12. True it is that the plaintiff is an assessee to income tax, however, he was submitting his return as ‘nil’. Thus, the dismissal of the suit by the learned lower appellate Court on the aforesaid ground cannot be held to be legally sustainable and rather being perverse deserves to be and is hereby quashed and set aside to this effect. The net result, however, shall remain the same; viz the dismissal of the suit. 13. In view of the above discussion, this appeal fails and the same is accordingly dismissed. The impugned judgment and decree is up-held, as aforesaid. Let decree sheet be prepared accordingly. Records be sent down.