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2014 DIGILAW 77 (HP)

Sant Ram v. Dayal

2014-01-10

RAJIV SHARMA

body2014
JDUGMENT Per Rajiv Sharma, Judge This Regular Second Appeal is directed against the judgment and decree dated 28.2.20 13 passed by learned District Judge, Sirmaur at Nahan, in Civil Appeal No.30-CA/ 13 of 2011. 2.“Key facts” necessary for the adjudication of this Regular Second Appeal are that the respondent/plaintiff (hereinafter referred to as the “plaintiff” for the sake of convenience) filed a suit for a decree of recovery of Rs.1,00,000/- along with interest at the rate of 18% per annum against the appellant/defendant (hereinafter referred to as the “defendant” for the sake of convenience). According to the plaintiff, the defendant belonged to his village. He used to supply timber to plywood factories in Paonta Sahib area. He was in dire need of money to promote his business. He borrowed a sum of Rs. 1,00,000/- from him. The amount was advanced to the defendant without any interest. A receipt to this effect was executed by the defendant in favour of the plaintiff in the presence of the witnesses. The defendant failed to repay the amount within the stipulated period of one month, on one pretext or the other. Hence, the suit. 3 The suit was contested by the defendant. The defendant has denied borrowing of Rs. 1,00,000/- from the plaintiff and the receipt executed thereof. According to him, the plaintiff was in habit of making forged and fabricated documents. The plaintiff had also fabricated a document against his brother Chhotu Ram in the year 2005. The plaintiff had asked him to depose against Chhotu Ram in the Court. However, he refused to do so, which led to filing of false and frivolous suit against him. 4 Replication was also filed by the plaintiff. 5 Learned trial court framed the issues on 4.11.2008 and decreed the suit vide judgment and decree dated 30.7.2010. The defendant feeling aggrieved by judgment and decree dated 30.7.2010 preferred an appeal before learned lower appellate court, who dismissed the appeal vide judgment and decree dated 28.2.2013. Hence, this Regular Second Appeal. 6Mr. Karan Singh Kanwar, Advocate, on the basis of substantial questions of law framed has vehemently argued that both the courts below have mis-interpreted and mis-read document Ext.PW2/A as well as statements of PW1, PW2 and DW1. Hence, this Regular Second Appeal. 6Mr. Karan Singh Kanwar, Advocate, on the basis of substantial questions of law framed has vehemently argued that both the courts below have mis-interpreted and mis-read document Ext.PW2/A as well as statements of PW1, PW2 and DW1. He then contended that Kalyan Singh being material witness has been withheld and an adverse inference has to be drawn against the plaintiff under Section 114(g) of the Indian Evidence Act. He lastly contended that on the receipt, Ext.PW2/A, signature of the defendant has not been proved conclusively. 7 Mr. Bhupender Pathania, Advocate, has supported the impugned judgments and decrees passed by the courts below. 8 I have heard learned counsel for the parties and have perused the pleadings carefully. 9 PW1, Dayal, has led his evidence by way of filing an affidavit, Ext.PW1/A. According to him, the defendant was in need of money. He approached him for a loan of Rs. 1,00,000/-. He advanced the loan amount to the defendant without any interest. Receipt, Ext.PW2/A was executed by the defendant. It was prepared by Sohan Lal. He along with Kalyan Singh witnessed the execution of the receipt by the defendant in favour of the plaintiff. The defendant did not repay the loan amount. 10PW2, Sohan Singh, has testified that on 15.1.2007, the plaintiff and defendant visited him for preparation of the receipt of the loan amount. He got the receipt Ext.PW2/A typed from Verma typist. Contents of the receipt, Ext.PW2/A were read over and explained to the defendant, who after admitting the same to be correct put signature on the receipt. He and one Kalyan Singh also signed the receipt in the presence of the defendant. 11DW1, Sant Ram, has denied the case of the plaintiff. According to him, the plaintiff was in habit of preparing false and fabricated documents. The plaintiff had earlier also forged documents against his brother Chhotu Ram and filed a case against him. The plaintiff asked him to depose against Chhotu Ram. He did not oblige the plaintiff. It is in these circumstances, the suit was filed against him. 12The receipt, Ext.PW2/A, was signed by the defendant. It was witnessed by PW2 Sohan Lal and one Kalyan Singh. The case of the defendant is that he did not know English. However, he himself had prepared a sale deed dated 27.1.2003, wherein he had put his signature in English. It is in these circumstances, the suit was filed against him. 12The receipt, Ext.PW2/A, was signed by the defendant. It was witnessed by PW2 Sohan Lal and one Kalyan Singh. The case of the defendant is that he did not know English. However, he himself had prepared a sale deed dated 27.1.2003, wherein he had put his signature in English. It falsifies the case of the defendant. Though, the Government Examiner of the Questioned Documents had not found the signature of the defendant over receipt Ext.PW2/A conclusively, however, fact of the matter is that receipt had been duly executed by the defendant in the presence of PW2 Sohan Lal. He had put his signatures in English. The case of the defendant is that the plaintiff had forced him to be witness against his brother Chottu Ram. However, the defendant has not produced Chottu Ram in the Court. 13Mr. Karan Singh Kanwar, learned Advocate, has also argued that the plaintiff has failed to prove that he had source to pay a sum of Rs. 1,00,000/-. The defendant had moved an application before the learned trial court for summoning the record of the bank account of the plaintiff. However, for the reasons best known to him, he withdrew the same. The plaintiff has duly proved the execution of receipt Ext.PW2/A. Learned courts below have correctly read and appreciated the receipt, Ext.PW2/A as well as statements of PW 1, PW2 and DW 1. The defendant has failed to prove that the plaintiff was in habit of filing false cases on the basis of forged documents. The defendant could always file complaint before the police in case receipt Ext.PW2/A was fabricated by the plaintiff. He has not done so. Defendant has failed to produce Chottu Ram. It was not necessary for the plaintiff to produce Kalyan Singh another marginal witness to receipt Ext.PW2/A when PW2 Sohan Lal has conclusively proved the same. Thus, no adverse inference can be drawn against the plaintiff under Section 114(g) of the Indian Evidence Act, as argued by Mr. Karan Singh Kanwar, learned Advocate. 14In view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.