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2021 DIGILAW 1612 (PNJ)

Lakha Singh through LRs v. Arjun Lal

2021-08-19

LISA GILL

body2021
Judgment Mrs. Lisa Gill, J.:- This matter is being taken up for hearing through video conferencing due to outbreak of the pandemic, COVID-19. CM No.2868-C of 2021 2.There is a delay of 1050 days in refiling of the appeal. 3.For the reasons mentioned in the application, duly supported by an affidavit of the counsel himself, as well as arguments addressed, delay of 1050 days in refiling of the appeal is condoned. 4.Application is disposed of. RSA No.502 of 2021(O&M) 5.This appeal has been filed by the defendants (LRs of Lakha Singh, original defendant) challenging judgment and decree dated 19.01.2015 passed by the learned Civil Judge (Junior Division), Guhla whereby suit filed by the plaintiff for recovery of Rs.2,87,500/- has been decreed as well as judgment and decree dated 23.11.2016 passed by the learned District Judge, Kaithal, dismissing the appeal filed by the present appellants. 6.Brief facts necessary for adjudication of the case are that, respondent/plaintiff filed a suit for recovery of Rs.2,87,500/- alongwith pendente lite and future interest at the rate of 1.5% per month. It is pleaded that defendant-Lakha Singh had borrowed a sum of Rs.2,50,000/- in cash from the plaintiff on 17.02.2010. He agreed to repay the same within a period of three months on demand alongwith interest at the rate of 1.5% per month in the presence of PW1 Balwan Singh and PW2 Jasbir Singh. A pronote (Ex.PA) and receipt (Ex.PB) which were scribed by PW1 Balwan Singh, were executed by the defendant-Lakha Singh after the contents thereof were duly read over to him. When the defendant failed to repay the said amount alongwith interest, legal notice dated 31.08.2010 was served through registered AD and UPC. Defendant refused to accept the notice through registered AD, but notice through UPC was duly served. As the defendant failed to repay the amount, present suit was filed. 7.Written statement was filed by the legal representatives of Lakha Singh. It is denied that Lakha Singh ever borrowed any amount from the plaintiff or executed any pronote or receipt in plaintiff’s favour. It is averred that Lakha Singh was not in need of such a huge amount of Rs.2,50,000/- in the month of February, 2010 neither plaintiff was in a position to advance such a huge amount. Therefore, there is no question of the said amount being borrowed by defendant-Lakha Singh. It is averred that Lakha Singh was not in need of such a huge amount of Rs.2,50,000/- in the month of February, 2010 neither plaintiff was in a position to advance such a huge amount. Therefore, there is no question of the said amount being borrowed by defendant-Lakha Singh. Alleged pronote and receipt dated 17.02.2010 are stated to be false, illegal, null, void and fraudulent documents, which were never executed by Lakha Singh out of his free will and knowledge. It is stated that alleged pronote and receipt do not bear signatures/thumb impressions of Lakha Singh. It is further stated that there is interpolation in the pronote inasmuch as it was for a sum of Rs.25,000/-, which was converted to Rs.2,50,000/- with an addition of ‘0’. The amount in question was written in figures in the pronote whereas, in the receipt it is written in figures as well as in words. The alleged pronote and receipt are thus stated to be forged, fabricated and fraudulent documents. Dismissal of the suit was prayed for. 8.On the basis of the pleadings of the parties, learned trial court framed the following issues:- 1. Whether plaintiff is entitled for the recovery of Rs.2,87,500/- alongwith pendent-lite and future interest @1.5% P.A? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no locus standi and has no cause of action to file the present suit? OPD 4. Whether plaintiff is estopped from filing the present suit by his own act and conduct? OPD 5. Whether plaintiff has suppressed the true and material facts from the court? OPD 6. Relief. 9.Evidence was led by both the parties to prove their respective claims. 10.Learned trial court on considering the facts, circumstances and evidence on record decreed the suit for recovery filed by the plaintiff/respondent. Present appellants were directed to pay a sum of Rs.2,50,000/- alongwith the interest at the rate of 1.5% per month from the date of accrual till the actual realization. 10.Learned trial court on considering the facts, circumstances and evidence on record decreed the suit for recovery filed by the plaintiff/respondent. Present appellants were directed to pay a sum of Rs.2,50,000/- alongwith the interest at the rate of 1.5% per month from the date of accrual till the actual realization. 11.Appeal filed by the present appellants was dismissed by the learned District Judge, Kaithal vide judgment and decree dated 23.11.2016 with the modification that rate of interest directed to be paid was 12% per annum on the principal amount of Rs.2,50,000/- payable from 17.02.2010 uptill 05.01.2011 when the suit was filed and future interest post suit was awarded at the rate of 6% per annum till realization of the entire amount. Aggrieved therefrom, present regular second appeal has been filed. 12.Learned counsel for the appellants vehemently argues that both the learned courts below have grossly erred in law and on facts in allowing the suit filed by the respondent/plaintiff. It is submitted that the learned courts below have misread the evidence on record. Onus of proving his case, it is stated, was on the plaintiff. Therefore, the learned courts below have wrongly tried to shift the burden upon the appellants. It is submitted that it was incumbent upon the plaintiff to have examined the handwriting expert to prove the thumb mark of Lakha Singh on the alleged pronote (Ex.PA) and receipt (Ex.PB), especially once the appellants denied execution of pronote (Ex.PA) and receipt (Ex.PB). It is further argued that interpolation on the pronote (Ex.PA) which is apparent to the naked eye is sufficient enough to dismiss the suit filed by respondent/plaintiff. Learned counsel while referring to a photocopy of pronote (Ex.PA) and receipt (Ex.PB), circulated on the Whatsapp group created for the purpose of Video Conferencing, reiterates the abovesaid arguments. Learned counsel further submits that there is no evidence on record to indicate that such a huge amount was required by Lakha Singh while referring to the testimony of DW1 Harvinder Singh. It is submitted that first marriage in the house was performed in the year 2004 and the second one in the year 2009, therefore, no occasion arose for Lakha Singh to borrow this amount in February, 2010. It is stated that there are material contradictions in the statements of witnesses of the plaintiff. It is submitted that first marriage in the house was performed in the year 2004 and the second one in the year 2009, therefore, no occasion arose for Lakha Singh to borrow this amount in February, 2010. It is stated that there are material contradictions in the statements of witnesses of the plaintiff. The deceased-Lakha Singh was an illiterate person and there is ample chance of manipulation of the alleged pronote (Ex.PA). Learned counsel relies upon judgment of the Hon’ble Supreme Court in Thiruvengada Pillai v.Navneethammal and another, AIR 2008 (SC) 1541 to submit that respondent/plaintiff should have examined the handwriting and finger print expert once there is positive denial of the thumb impression on the registered document. It is thus prayed that this appeal be allowed and both the impugned judgments be set aside. Consequently, suit filed by the respondent/plaintiff be dismissed throughout. 13.Heard learned counsel for the appellants and have gone through the file with his assistance. 14.In my considered opinion, there is no ground, whatsoever, for interference in this appeal for setting aside the impugned judgments and decrees. This is so for the reasons as delineated in the following paras. 15.It is a matter of record that the plaintiff in order to prove his case examined PW1 Balwan Singh who specifically stated that he has seen pronote (Ex.PA) written by him and that on 17.02.2010 an amount of Rs. 2,50,000/- was received by Lakha Singh, who executed the pronote (Ex.PA) and receipt (Ex.PB). Lakha Singh is stated to have put his thumb impression on the pronote and receipt in question. PW1 Balwan Singh in his cross-examination stated that pronote was brought by Lakha Singh after having affixed revenue stamps (tickets) and that amount of Rs. 2,50,000/- in currency notes of denomination of Rs. 500/- was paid to Lakha Singh in his presence. PW1 Balwan Singh further reveals that Lakha Singh also used to sell his crop with the respondent/plaintiff. PW2 Jasbir Singh, who is witness to the pronote (Ex.PA) and receipt (Ex.PB) has also supported the plaintiff’s case while specifically stating that the amount in question was given to Lakha Singh by the plaintiff in his presence and Lakha Singh appended his thumb impression on the pronote (Ex.PA) and receipt (Ex.PB). PW2 Jasbir Singh affirmed that the pronote was brought by Lakha Singh himself. PW2 Jasbir Singh affirmed that the pronote was brought by Lakha Singh himself. PW2 Jasbir Singh denied the suggestion that numeral ‘0’ had been added lateron in the pronote(Ex.PA). It has come on record that Lakha Singh was having approximately 15 acres of land. Appellants/defendants, per contra, have taken a stand that the pronote (Ex.PA) and receipt (Ex.PB) were never executed by Lakha Singh. In the same breath, a paradoxical argument is raised that there is interpolation in the figure of the amount in the pronote (Ex.PA) inasmuch as the numeral ‘0’ has been added to make the amount to be Rs. 2,50,000/-. 16.I have perused the photocopy of pronote (Ex.PA) and receipt (Ex.PB). Learned counsel for the appellants is unable to deny that in the pronote after mentioning the amount in question, it is duly mentioned that half of the said amount is Rs.1,25,000/- and in the receipt (Ex.PB), the amount is mentioned in words as well as numerals. It is again mentioned that half of the amount is Rs.1,25,000/-. Both the learned courts below have rightly observed that the appellants/defendants tendered an evasive denial by alternatively pleading that the numeral ‘0’ has been added in the pronote (Ex.PA) and the same has been forged. The plaintiff has duly discharged the initial burden upon him by examining the scribe of the pronote (Ex.PA) and receipt (Ex.PB) as well as the attesting witnesses. Keeping in view the stand taken by the defendants in the written statement, it is correctly held by both the learned courts below that the appellants/defendants could have very well examined the Handwriting and Finger print expert to substantiate the plea of thumb impression of their father, Lakha Singh, not being appended on the same. Judgment of the Hon’ble Supreme Court in Thiruvengada Pillai’s case (supra) is not applicable in the given facts and circumstances of this case. In the matter of ThiruvengadaPillai’s case (supra), it was in the context of various circumstances in the said case, when taken together, creating a doubt about the genuineness of the agreement (subject-matter of the said case) which had clouded the effect of the testimony of scribe and witness of the said agreement, that Hon’ble Supreme Court observed that it is for the plaintiff to first prove his case. In the present case, learned counsel for the appellants is unable to point out anything onrecord to discredit the testimony of PW1 Balwan Singh and PW2 Jasbir Singh.Foundational facts stood proved by the plaintiff. It was indeed for theappellants to have rebutted the same. 17.Both the learned courts below have returned concurrent findings of fact after correct and proper appreciation of the evidence on record. Learned counsel for the appellants is unable to point out any question of law much less substantial question of law which may be involved for consideration in this regular second appeal. 18.No other argument has been raised. 19.Keeping in view the facts and circumstances as discussed above, I do not find any infirmity, illegality or perversity in the impugned judgments and decrees dated 19.01.2015 and 23.11.2016 passed by the learned Civil Judge (Junior Division), Guhla and the learned District Judge, Kaithal, respectively, which warrant any interference by this Court. 20.Present appeal is, consequently, dismissed with no order as to cost.