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2017 DIGILAW 221 (HP)

Bhagat Ram v. Bal Krishan

2017-03-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff had instituted a suit before the learned trial Court for a recovery of Rs. 1,64,145/- from the defendant/appellant herein. The suit of the plaintiff stood decreed by the learned trial Court and in an appeal carried therefrom before the learned First Appellate Court, the latter Court modified the verdict recorded by the learned trial Court. Standing aggrieved therefrom, the defendant/appellant herein has instituted the instant appeal here-before. 2. Briefly stated the facts of the case are that the plaintiff is working as an Agent of M/s BHS Fruit Commission Agency, Delhi. It is averred that On 22nd October, 2001, after settling the amounts with the defendant, the defendant acknowledged his having received an amount of Rs. 1,09.430/- from the plaintiff and duly acknowledged the same by signing the ledger. It is averred that the defendant also agreed to pay 5% interest on the amount till the final payment of the amount. It is averred that the defendant again acknowledged the liability on August 22, 2002 and an amount of Rs. 1,64,145/- had become due against the defendant. However, the defendant did not care to pay the amount to the plaintiff and accordingly, a legal notice was issued on August 28, 2002. The cause of action stated to have arisen on October, 22, 2001 when the amount was acknowledged by the defendant and thereafter on August 28, 2002. Hence this suit. 3. The defendant contested the suit and filed written statement wherein he had taken preliminary objection qua the plaintiff being not entitled to the interest at the rate of 5% cause of action and that the alleged ledger, basis of the suit, is not maintained in accordance with law and it is false document. On merits, it is alleged that the defendant had not settled any account with the plaintiff. It is denied that the defendant never acknowledged qua his having received an amount of Rs. 1,09,430/- from the plaintiff. It is also denied that the defendant acknowledged the liability of Rs. 1,64,145/- respectively on 22nd October, 2001 and on August 22, 2002. It is averred that the defendant some time 14-15 years back took empty apple boxes of value of about Rs. 3,000/- and the plaintiff had recovered about Rs. 15,000/- from him by fraud and forcible acts. Hence, he prayed for the dismissal of the suit. 4. 1,64,145/- respectively on 22nd October, 2001 and on August 22, 2002. It is averred that the defendant some time 14-15 years back took empty apple boxes of value of about Rs. 3,000/- and the plaintiff had recovered about Rs. 15,000/- from him by fraud and forcible acts. Hence, he prayed for the dismissal of the suit. 4. The plaintiff/respondent herein filed replication to the written statement of the defendant/appellant, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled to the recovery of suit amount as alleged? OPP 2. Whether the plaintiff is entitled to recovery interest at the rate of 5% per month? OPP 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit is not maintainable? OPD 5. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendant/appellant herein before the learned First Appellate Court, the first Appellate Court partly allowed the appeal and modified the judgment and decree recorded by the learned trial Court. 7. Now the defendant/appellant herein has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 27.11.2008, this Court, admitted the appeal instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the Ex.PW1/A being the copy was admissible in evidence, in the absence of the original and in the absence of any averment or proof that the entry in the ledger was maintained in regular course of business? 2. Whether the Court was justified in ignoring the case pleaded and the one stated in the cross-examination regarding the consideration of the acknowledgement as stated in grounds of appeal? Substantial questions of Law No. 1 and 2. 8. 2. Whether the Court was justified in ignoring the case pleaded and the one stated in the cross-examination regarding the consideration of the acknowledgement as stated in grounds of appeal? Substantial questions of Law No. 1 and 2. 8. The entire anvil of the verdicts concurrently recorded against the defendants by both the learned Courts below, stand hinged upon Ex.PW1/A, a photo copy of the ledger maintained by the plaintiff where within the purported signatures of the defendant exist, wherefrom, the learned courts below drew a concomitant inference qua it constituting an admission besides acknowledgement qua the defendant borrowing a sum of Rs. 1,64,145/- from the plaintiff, hence, constraining both the learned Courts below to decree the suit of the plaintiff. 9. The paramount factum qua Ex.PW1/A enjoying the relevant probative tenacity spurring from the purported relevant signatures existing thereon standing clinchingly proven by adduction of best evidence, constitutes the sole bedrock whereupon the entire lis stands rested. At the time whereat Ex.PW1/A stood exhibited before the learned trial Court, the plaintiff had thereat produced its original whereafter the learned trial Court permitted its standing exhibited. However, even at the time whereat, photo copy of the apposite entries held in the original ledger stood embossed with Ex.PW1/A, the learned counsel appearing for the defendant objected qua the mode qua its proof. A reading of the examination-in- chief of PW-1 unfolds qua thereat the counsel for the defendant making his protest qua the authenticity of the signatures of the defendant existing in circle 'A' of Ex.PW1/A, protest whereof qua the authenticity of the signatures of the defendant occurring in circle 'A' of Ex.PW1/A, continued throughout the cross-examination of PW-1. The learned counsel for the defendant had put apposite suggestions to PW-1 holding e-choings qua the purported signatures occurring in circle 'A' of Ex.PW1/A standing not owned by the defendant. Also, the learned trial Court during the course of PW-1 standing held to cross-examination by the counsel for the defendant had made observations qua their occurring a difference in the signatures of the defendant held in the original ledger. The aforesaid observations recorded by the learned trial Court during the course of PW-1 standing held to cross-examination by the learned counsel for the defendant is a marked portrayal, qua the signatures of the defendant occurring in the original ledger holding intra se difference. The aforesaid observations recorded by the learned trial Court during the course of PW-1 standing held to cross-examination by the learned counsel for the defendant is a marked portrayal, qua the signatures of the defendant occurring in the original ledger holding intra se difference. The aforesaid observations are not un-worthwhile, they pronounces upon the factum of photo copy thereto, photo copy whereof on production of original at the time of the recording of the deposition of PW-1 stood exhibited as Ex. PW1/A, not standing efficaciously proven rather it constrains an inference qua the photo copy of the original ledger whereon Ex.PW1/A hence stood embossed, not holding any compatibility with the original. The aforesaid observations made by this Court are in tandem with the protests made by the counsel for the defendant during the course when PW-1 proceeded to constrain the learned trial Court to on the photo copy of the original ledger, emboss thereon Ex.PW1/A. Consequently, hence, any reliance upon Ex.PW1/A was most inappropriate. 10. Be that as it may, even if Ex.PW1/A was for the reasons aforestated discardable, it was incumbent upon the learned trial Court to given the pointed protests of the defendant in his pleadings also with the counsel for the defendant while holding PW-1 to cross-examination putting apposite suggestions wherein e-choings occurred qua the defendant disputing the authenticity of the relevant signatures occurring in the original ledger, to proceed, to, significantly when it had recorded observations during the course of the recording of the deposition of PW-1 qua the purported signatures of the defendant occurring in the original ledger holding inter se difference, secure the best evidence, for settling the controversy qua the signatures of the defendant purportedly occurring in the original ledger belonging to him. It was the paramount duty of the learned trial Court, when, it made observations qua a noticeable difference in the purported signatures of the defendant occurring in the original ledger wherefrom EX.PW1/A stood for the aforesaid reasons faultily untenably permitted to be adduced in evidence, to elicit best evidence comprised in its requisitioning, the report of the handwriting expert dehors the defendant not moving any apposite application therebefore for the purpose aforesaid. 11. 11. Even the failure of the defendant to in his testification raise any dispute qua the authenticity of his signatures occurring in the original ledger, cannot, at all forestall the plenary jurisdiction of the trial Court to, for resting the controversy qua the authenticity of the signatures of the defendant occurring in the original ledger, to hence order for the comparison by the handwriting expert concerned qua the disputed signatures of the defendant occurring in the original ledger with his admitted signatures. However, the learned trial Court proceeded to abandon the aforesaid paramount duty, rather has drawn fallacious findings anvilled upon unproven besides discardable Ex.PW1/A. 12. The above discussion unfolds qua the conclusions arrived by the learned first Appellate Court as also by the learned trial Court standing not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the defendant/appellant and against the plaintiff/respondent. 13. In view of above discussion, the present Regular Second Appeal is allowed and the suit of the plaintiff stands dismissed. In sequel, the judgments and decrees rendered by both the learned Courts below are set aside. All pending applications also stand disposed of. No order as to costs.