Punjab-Haryana High Court
Kashmiri Lal vs Arun Kumar on 11 August, 2014
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
RSA No.235 of 2013 (O&M)
Date of decision: 11.08.2014
Kashmiri Lal
-----Appellant(s)
Vs.
Arun Kumar
-----Respondent(s)
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Parminder Singh, Advocate
for the appellant.
---
RAKESH KUMAR GARG, J.
This is plaintiff's second appeal challenging the judgment and decree of the lower Appellate Court whereby appeal filed on behalf of the defendant-respondent against the judgment and decree dated 21.7.2011 of the trial Court has been accepted and suit of the plaintiff-appellant has been ordered to be dismissed.
Plaintiff-appellant had filed the instant suit with the averments that the defendant-respondent had taken a loan of Rs.60,000/- in cash from him on 5.7.2004 on interest @ 5% per month and a writing was made by the defendant-respondent to this effect in his own hand-writing in the notebook acknowledging his liability to make the payment of Rs.62,056/-. Since the defendant- Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.235 of 2013 2 respondent failed to repay the aforesaid amount, a Legal Notice was issued upon the defendant but to no effect. Hence, necessity arose to file the instant suit.
The suit was contested by the defendant-respondent raising various preliminary objections. On merits, it was stated that no amount of Rs.60,000/- was ever borrowed by him from the plaintiff-appellant. The suit was based on false and fabricated writing. It was further averred that the appellant was a mischievous person. He used to obtain signatures of the villagers on the pretext of making representations to the Government for the welfare of the villagers, posing himself to be a social worker. He denied that any such writing was given by him on 5.7.2004 acknowledging his liability to make the payment of Rs.62,056/- to the plaintiff-appellant along with interest @ 5% per month.
From the pleadings of the parties, following issues were framed:-
"1. Whether the plaintiff is entitled to recovery of Rs.62,056? OPP.
2. Whether the plaintiff is entitled to any interest?
OPD.
3. Whether the suit of the plaintiff is not maintainable in the present form? OPD.
4. Relief."
The trial Court decided all the issues in favour of the plaintiff-appellant, decreeing the suit for recovery of Rs.62,056/- Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.235 of 2013 3 along with interest thereon @ 5% per month from the date of accrual till passing of judgment and decree dated 21.7.2011.
Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant preferred an appeal before the first Appellate Court. While accepting the appeal, vide judgment and decree dated13.9.2012, the lower Appellate Court observed that no liability can be fastened upon the defendant-respondent on the basis of writings Ex.P1 and Ex.P2, as the said writings remained unproved on record.
Still not satisfied, the plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:-
"i. Whether the findings of the Ld. First Appellate Court below are beyond pleading and evidence on record, based upon irrelevant fact of consideration and mis-construed the facts and law and are not tenable in the eyes of law? ii. Whether by virtue of Section 90/91 of Indian Evidence Act, the documentary evidence against the oral assumption, beyond pleadings may not prevail in the eyes of law?"
In support of his case, learned counsel for the appellant has vehemently argued that the trial Court had decreed the suit on the basis of cogent evidence on record. However, the aforesaid findings have been reversed by the lower Appellate Court merely on the basis of assumptions and presumptions and brushed aside the documentary evidence on record. According to learned counsel Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.235 of 2013 4 for the appellant, vide writings Ex.P1 and Ex.P2, it stands proved that the defendant-respondent borrowed a sum of Rs.60,000/- from the appellant and he acknowledged his liability to pay. It is the further case of the appellant that execution of the aforesaid writings has been duly proved on record. The hand writing expert has clearly stated that the said writings have been signed by the defendant-respondent. Once the said writings have been proved, the presumption of payment of borrowed amount is also in favour of the appellant and thus, the judgment and decree of the lower Appellate Court, which is based on misreading of facts and perversity of evidence, are not sustainable in the eyes of law.
I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below.
The argument raised is totally misconceived and is liable to be rejected.
Admittedly, the main body of writings Ex.P1 and Ex.P2, which are alleged to have been in the hand writing of the defendant-respondent, have not been proved and the hand writing expert has only opined with regard to signatures of the defendant- respondent and thus, the contents of the writing, vide which the defendant-respondent acknowledged the payment, have remained unproved. Thus, it could not be disputed that the aforesaid writings remained unproved.
In view thereof, this Court is of the opinion that no interference is warranted in the impugned judgment and decree of Kumar Ashwani 2014.08.14 17:36 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.235 of 2013 5 the lower Appellate Court, as no substantial question of law arises in this appeal.
Dismissed.
August 11, 2014 [RAKESH KUMAR GARG]
ak JUDGE
Kumar Ashwani
2014.08.14 17:36
I attest to the accuracy and
integrity of this document
High Court Chandigarh