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2013 DIGILAW 191 (MP)

Bhagwati Devi v. Jameela Begam

2013-02-13

U.C.MAHESHWARI

body2013
ORDER (Oral) 1. The appellant/plaintiff has filed this revision under section 115 of CPC being aggrieved by the judgment and decree dated 23.1.2006 passed by 8th Additional District Judge, Gwalior in Civil Appeal No. 1B/2006 affirming the judgment and decree dated 18.7.2005 passed by 8th Civil Judge, Class-I, Gwalior whereby his suit filed against predecessor in title of the respondent namely Munna Khan for recovery of Rs. 10,000/- was dismissed. 2. The facts giving rise to this revision in short are that the applicant herein filed the impugned suit against the predecessor of the respondent namely munna Khan the proprietor of M/s Kishan Rehat Industries for recovery of Rs. 10,000/-. As per futher averments such sum was arrears against Munna Khan, on 17.3.1991 by accepting the liability to pay such sum Munna Khan had executed promissory note of Rs. 10,000/- in favour of the appellant with assurance to pay such sum along with interest @ 1.75% per month within 120 days i.e. four months and later sum of Rs. 1,050/- as interest was paid by the deceased Munna Khan to the applicant on 17.7.1991 and when remaining sum was not paid by Munna to the appellant then the impugned suit for recovery of the same was filed 16.1.1994. 3. In the written statement by the predecessor in title of the respondents Munna Khan by denying the material facts of the alleged transaction if is stated that there was no arrears of alleged sum against principal defendant Munna. It is also stated that neither the alleged promissory note was executed nor any terms and conditions were settled between the parties. The amount of interest as stated in the plainnt has also not been paid to the appellant by the deceased principal defendant. The suit is also opposed on the ground of lacking proper cause of action and as per plaintiff herself it was an old transaction and accordingly the suit was not filed within the prescribed limitation, so the suit being time barred is not maintainable. The objection with respect of the validity of the promissory note in the lack of proper stamp duty was also taken. With these averments the prayer for dismissal of the suit was made. 4. The objection with respect of the validity of the promissory note in the lack of proper stamp duty was also taken. With these averments the prayer for dismissal of the suit was made. 4. In view of the pleadings of the parties after framing the issues, parties were directed to adduce their respective evidence, after recording the same, on appreciation, the trial Court has dismissed the suit holding that in the lack of the embossed stamp of proper denomination the alleged promissory note is not admissible and in such premises the alleged transaction was not found to be proved. The suit was also dismissed on account of non-examination of the plaintiff herself, taking into consideration that in this regard no explanation has been put forth by the applicant on record. However, the suit was held within limitation by the trial Court. Subsequent to dismissal of the suit the applicant had preferred the appeal under section 96 of CPC before the District Court. In such appeal a cross-objection to hold the suit barred by time, from the date of original transaction which had taken place in the year 1988, was also filed on behalf of the respondents herein under Order 41 Rule 22 of CPC. On consideration, by affirming the judgment and decree of the trial Court dismissal of the suit the cross-objection of the respondents was also allowed and taking into consideration the circumstance that the suit is filed after six years from the date of the original transaction which had taken place in the year 1988 the suit was also dismissed as barred by time. Thereafter, the applicant/plaintiff has come to this Court with this revision. 5. The applicant’s counsel after taking me through the record along with the judgment of the Courts below by referring the decision of the Full Bench of this Court in the matter of Gurunanak Medical and Surgical Agency Vs. Sitaram Shivhare reported in 2011(2) JLJ 138 = 2011(2) MPLJ 101 argued that the decision of the Single Bench of this Court in the matter of Ismail Khan Vs. Ram Prakash Verma reported in 2000(2) MPLJ 104, on which the Courts below relied upon has been overruled and it has been held that the purpose of the fiscal law is only to recover the revenue, either through embossed stamp or the revenue tickets, in any case, revenue should be paid. Ram Prakash Verma reported in 2000(2) MPLJ 104, on which the Courts below relied upon has been overruled and it has been held that the purpose of the fiscal law is only to recover the revenue, either through embossed stamp or the revenue tickets, in any case, revenue should be paid. In such premises, he said that the findings of the Courts below holding that in the lack of embossed stamp the promissory note is inadmissible, is not sustainable and prayed to hold the promissory note executed on revenue tickets, is admissible and in such premises also prayed to hold the suit of the applicant is within limitation. He further argued that case has been successfully proved by the appellant through her power of attorney holder by recording his deposition and in the available circumstances there was no necessity to enter the appellant into the witness box to prove the case. Thus, even in the lack of deposition of the applicant/plaintiff, her suit could not be dismissed by any of the Courts below. In this regard he also said that the decision of the apex Court on which her suit has been dismissed, is distinguishable on facts with the present case but such aspect was not considered by the Courts below. With these submissions he prayed to set aside the judgment and decree of the Court below and decreed her suit by allowing this appeal. 6. On the other hand responding the aforesaid arguments by justifying the impugned judgment and decree the respondents counsel said that same being based on proper appreciation of the available evidence is in conformity with law, does not require any interference at this stage under the revisional jurisdiction. In continuation he said that in view of aforesaid Full Bench decision if the impugned promissory note is held to be admissible even then the impugned suit could not be decreed against the respondents. By referring the decision of the apex Court in the matter of Janki Vasudeo Vs. Indusand Bank reported in AIR 2005 SC 439 , he argued that it is settled proposition that in the absence of the examination of plaintiff in support of his/her pleading to prove the alleged transaction the suit could not be decreed mere on the basis of the pleadings. Indusand Bank reported in AIR 2005 SC 439 , he argued that it is settled proposition that in the absence of the examination of plaintiff in support of his/her pleading to prove the alleged transaction the suit could not be decreed mere on the basis of the pleadings. He also argued that it is apparent fact from the pleadings of the plaintiff that the impugned transaction was personal transaction between the applicant and the predecessor in title of the respondents and in such premises if the material facts of the transaction was in the knowledge of the applicant/plaintiff herself then it could not be assumed that such thing was in the knowledge of the Power of Attorney specially when nothing has been stated in this regard in the plaint. Therefore on account of non-entrance of the appellant in the witness box is sufficient circumstance to draw the inference that the appellant-plaintiff had failed to prove the alleged transaction and execution of promissory note and prayed for dismissal of this revision. 7. Having heard the counsel, keeping in view their arguments after perusing the record of the Courts below along with the impugned judgment, I am of the considered view that some findings of the impugned judgment requires some modification while the approach of the Courts below dismissing the suit does not require any interference under section 115 of CPC. 8. It is undisputed fact on record that the impugned suit was filed by the applicant herself to recover sum of promissory note as alleged executed on 17.3.1991 by Munna Khan the predecessor in title of the respondents. It is also undisputed fact that such pronote was executed by Munna Khan by accepting the liability of earlier arrears of sum. It is settled proposition of law whenever the negotiable instrument takes place between the parties then old transaction becomes the new transaction for all the purposes, including the purpose for assessing the period of limitation to initate the proceedings. It is settled proposition of law whenever the negotiable instrument takes place between the parties then old transaction becomes the new transaction for all the purposes, including the purpose for assessing the period of limitation to initate the proceedings. Although, in the case at hand in the light of the decision of the Single Bench of this Court in the case of Ismail Khan (supra) the impugned promissory note was held to be inadmissible on the count that the same was not executed on proper embossed stamp but subsequent to the decisions of both the Courts below in the pendency of this revision on arising the occasion in some other matter such question was answered by the Full Bench of this Court in the case of Gurunanak Medical and Surgical Agency (supra), according to which in any shape either in the shape of the embossed stamp or in the shape of revenue ticket/stamp if the requisite duty is paid on the document like promissory note then such document could not be held to be inadmissible, as such same should be treated to be admissible document. So, in such premises this Court has no any other option except to hold the aforesaid promissory note is admissible document and in such premises, the findings of the Court below holding the promissory note inadmisseble being perverse is set aside and alleged promissory note is held to be admissible. 9. After holding the aforesaid promissory note as an admissible document. I proceed to examine the question of limitation to file the impugned suit. As the promissory note was executed on 17.1.1991 and the impugned suit being filed on 16.1.1994 within three years from the date of execution of promissory note within limitation. In such premises, the appellante Court has wrongly held the same to be barred by time. So such finding of the appellate Court deserves to be and is hereby set aside. 10. On holding the aforesaid promissory note an admissible document and the suit of the applicant within limitation, I proceed to consider the question whether in view of available evidence the impugned suit ought to have decreed by any of the Courts below or the ultimate approach of such Court regarding dismissal of the suit is correct. 11. 10. On holding the aforesaid promissory note an admissible document and the suit of the applicant within limitation, I proceed to consider the question whether in view of available evidence the impugned suit ought to have decreed by any of the Courts below or the ultimate approach of such Court regarding dismissal of the suit is correct. 11. It is apparent from the pleadings of the impugned suit that the impugned transaction was between the applicant and the predecessor in title of the respondents namely Munna Khan and such transaction was not carried out by the applicant through some power of attorney holder namely Tarachand. If the transaction had been carried out through power of attorney holder then certainly the pleading in this regard should have been made in the plaint. So, in the lack of such pleading it shall be deemed that the impugned transaction was personal transaction of the applicant with Munna Khan and the material facts of such transaction was within the knowledge of the applicant, and not in the knowledge of the power of attorney holder. It is also undisputed fact on record that in order to prove the pleading of earlier transaction regarding arrears of sum and execution of the promissory note the applicant herself has not entered into the witness box. Accordingly it could be assumed that the plaintiff herself has neither entered in the witness box nor proved her case. In the lack of her deposition mere on the basis of deposition of her power of attorney holder Tarachand the suit could not have decreed by the Courts below in light of the principle laid down by the apex Court in the matter of Janki Vasudev (supra), in which it was held as under: “Order II, Rules 1 and 2, empowers the holder of power of attorney to “Act” on behalf of the principal. In our view the word “acts” employed in Order III Rules 1 and 2, CPC, confines only in respect of the “acts” done by the power fo attorney holder in exercise of power granted by the instrument. The terms “acts” would not include deposing in place and instead of the principal. In our view the word “acts” employed in Order III Rules 1 and 2, CPC, confines only in respect of the “acts” done by the power fo attorney holder in exercise of power granted by the instrument. The terms “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of the such acts, but he cannot depose for the principal for the acts done by the principal and not by him, Similarly, he cannot depose for the principal in respact of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.” 12. Long before on arising the occasion the aforesaid question was also answared by this Court in the matter of Gulla Kharagjit Vs. Narsingh Nandkisore reported in 1970 JLJ 207 = AIR 1970 MP 225 , in which it was held as under: “When a material fact is within the knowledge of a party and he does not go into the witness box without any plausible reason, an adverse inference must be drawn against him. A presumption must be drawn against a party who having knowledge of the fact in dispute does not go into the witness box particularly when a prima facie case has been made out against him. 13. In view of the aforesaid settled proposition, there was no option with the Courts below except to dismiss the suit of the applicant on account of non-examination of the plaintiff herself. So, in such premises the findings of the subordinate Court dismissing the suit and appeal deserves to be and are hereby affirmed. 14. In view of the aforesaid even after modifying the findings of the appellate Court and holding the impugned promissory note admissible and the suit of the applicant was within limitation on account of non-examination of applicant in the matter, I have not found any illegality, irregularity or anything against the propriety of law in the approach of the Courts below regarding dismissal of the suit, consequently, this revision being devoid of any merits is hereby dismissed with costs. 15. The applicant shall bear its own cost as well as the cost of the respondents, if the same is certified. 16. 15. The applicant shall bear its own cost as well as the cost of the respondents, if the same is certified. 16. Revision is dismissed as indicated above.