Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1246 (GAU)

Hadi Hussain v. Mustt. Sofiya Khatun

2015-09-29

SUMAN SHYAM

body2015
JUDGMENT : Heard Mr. M.H. Ahmed, learned counsel for the appellant. None appears for the respondent. This appeal has been preferred by the plaintiff/ appellant assailing the judgment and decree of reversal dated 15-06-2006 passed by the learned District Judge, Bongaigaon in Money Appeal No. 01/2005 setting aside the judgment and decree dated 12-09-2005 passed by the learned Civil Judge (Sr. Div.), Bongaigaon in Money Suit No. 14/2001. 2. This appeal had been admitted by this Court to be heard on the following two substantial questions of law: “1) Whether the learned first appellate Court erred in law in disbelieving the Ext-1 while accepting the signature contained therein to be that of the defendant/ respondents and holding the same to be a forged document? 2) Whether the defendant/ respondents has been able to prove forgery in respect of Ext-1?” 3. The appellant as plaintiff had instituted the Money Suit No. 14/2001 in the court of Civil Judge (Sr. Div.), Bongaigaon praying for a decree for recovery of Rs. 28,000/- from the defendant/ respondent. 4. The case of the plaintiff is that after the premature death of the husband of the defendant, she was in dire need of money, since the pension benifits and other service benefits including gratuity etc. receivable by the defendant was not made ready. Under such circumstances the defendant had borrowed various amounts from time to time from the plaintiff for making both ends meet and in this manner the defendant had taken an amount of Rs. 28,000/- in total from the plaintiff by way of loan with a promise to return the same. In acknowledgment of the aforesaid loan, the defendant had also executed a hand-note dated 12-09-1999 promising to repay the entire amount on or before 31-12-2000 with a further condition of agreeing to sell a plot of land measuring 12½ lechas covered by PP No. 26 of Dag No. 123 of village Kabaitari under Boitamari Revenue Circle in case of her failure to repay the loan amount within time. However, despite such categorical assurance, the defendant has failed to repay the loan amount, ss a result of which the plaintiff has been compelled to institute the aforementioned money suit. 5. The defendant contested the suit by filing written statement denying the various averments made in the plaint. However, despite such categorical assurance, the defendant has failed to repay the loan amount, ss a result of which the plaintiff has been compelled to institute the aforementioned money suit. 5. The defendant contested the suit by filing written statement denying the various averments made in the plaint. The defendant’s case is that she had authorized the plaintiff to withdraw the gratuity, GIS and pension etc. due and payable on account of her deceased husband and in that connection had issued number of signed blank papers. Although some of the signed blank papers were eventually returned back by the plaintiff to the defendant at the intervention of village people, yet some of such signed papers were actually retained by the plaintiff which is now being used to extract the amount of Rs. 28,000/- from the defendant taking advantage of her vulnerable condition. She, therefore, prayed for dismissal of the suit. 6. Based on the pleadings of the parties the learned Trial Court had framed the following issues: 1) Is there any cause of action for the suit? 2) Whether the alleged execution of acknowledgment of loan money by the defendant to the plaintiff is a forged document? 3) Whether the defendant had ever obtained the loan money from the plaintiff? 4) Whether the plaintiff is entitled to a decree of the suit as prayed for? 5) To what relief parties are entitled to? 7. During the course of trial both sides had adduced evidence including documentary evidence. On the basis of evidence available on record and after hearing the learned counsel for the parties, the Trial Court had decreed the suit filed by the plaintiff. 8. Being aggrieved by the judgment and decree passed by the Trial Court the defendant as appellant had preferred Title Appeal No. 01/2005 in the court of District Judge, Bongaigaon. After hearing learned counsel for the parties the lower Appellate Court had reversed the judgment and decree passed by the Trial Court, thereby dismissing the suit filed by the plaintiff. The appellant/ plaintiff has preferred the instant second appeal being aggrieved by the judgment and decree of reversal dated 15-06-2006 passed by the lower Appellate Court. 9. Mr. M.H. Ahmed, learned counsel for the appellant submits that Exhibit-1 hand-note is a documentary evidence relied upon by the plaintiff in support of his claim of having advanced the aforementioned loan amount in favour of the defendant. 9. Mr. M.H. Ahmed, learned counsel for the appellant submits that Exhibit-1 hand-note is a documentary evidence relied upon by the plaintiff in support of his claim of having advanced the aforementioned loan amount in favour of the defendant. The said document has been duly proved by examining witnesses including the scribe of the document i.e. PW-2. The defendant has no where denied her signature nor she has led any evidence to show that the same is a forged document. Such being the position, the learned Trial Court had rightly decided issue No. 2 and 3 in favour of the appellant/plaintiff thereby decreeing the suit. He submits that having regard to the evidence available on record, there was no justifiable ground for the learned lower Appellate Court to reverse the finding recorded by the Trial Court by merely disbelieving the version of the plaintiff as well as the authenticity of the Exhibit-1. 10. I have considered the submission made by Mr. Ahmed and have also perused the evidence available on record. A perusal of the materials on record clearly demonstrate that the suit for recovery of Rs. 28,000/- from the defendant has been filed on the basis of a hand-note which has been produced by the plaintiff as Exhibit-1. The plaintiff has examined PW-2 i.e. scribe of the document who has not only identified his own signature but has also identified the signature of the defendant. The testimony of PW-3 also supports the version of PW-2. There is nothing on record to show that defendant had denied her signature in Exhibit-1. 11. A perusal of the Exhibit-1 clearly goes to show that the same records and acknowledgement on the part of the defendant to pay back the loan amount of Rs. 28,000/- to the plaintiff within 31-12-2000 failing which she has also agreed to sell her plot of land measuring 12½ lechas covered by Dag No. 123 of Patta No. 26 in favour of the plaintiff. The Exhibit-1 bears signature of the defendant affixed on revenue stamp. From a perusal of the testimony of the witnesses as well as the document Exhibit-1, it appears that there was no justifiable ground on the part of the lower Appellate Court to disbelieve the version given by the plaintiff inasmuch as the plaintiff had succeeded in establishing his case by leading cogent evidence available on record. From a perusal of the testimony of the witnesses as well as the document Exhibit-1, it appears that there was no justifiable ground on the part of the lower Appellate Court to disbelieve the version given by the plaintiff inasmuch as the plaintiff had succeeded in establishing his case by leading cogent evidence available on record. Not to speak of establishing that the Exhibit-1 document is a forged document, the defendant apparently does not even deny her signature in the said document. The case of the defendant is that the aforesaid document has been prepared on a blank paper earlier signed by her in connection with completing formalities regarding her husband’s pension, gratuity etc. However, the defendant has failed to prove her version by leading evidence. 12. In view of the discussions in the foregoing paragraphs, the substantial question of law framed by this Court stands answered in favour of the appellant/ plaintiff and against the defendant/ respondent. Consequently this second appeal stands allowed. The judgment and decree passed by the learned lower Appellate Court is hereby set aside and the decree passed by the learned Trial Court stands affirmed. However, having regard to the facts and circumstances of the case there would be no order as to cost. Registry to send back the LCR.