Punjab-Haryana High Court
M/S Subhash Chand Sohan Lal vs Bimla Devi Alias Chando And Others on 3 February, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 1450 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 1450 of 2011 (O&M)
Date of Decision : February 03, 2012
M/s Subhash Chand Sohan Lal .... Appellant
Vs.
Bimla Devi alias Chando and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Ravinder Malik Ravi, Advocate
for the appellant.
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L. N. MITTAL, J. (Oral) :
C. M. No. 4032-C of 2011 :
For reasons mentioned in the application, which is accompanied by affidavit, delay of 72 days in re-filing the appeal is condoned.
C. M. No. 4033-C of 2011 :
Allowed as prayed for.
C. M. No. 4034-C of 2011 :
Allowed as prayed for.
Main Appeal :R. S. A. No. 1450 of 2011 (O&M) 2
Plaintiff M/s Subhash Chand Sohan Lal, having lost in both the courts below, has filed the instant second appeal.
Suit was filed by plaintiff against Ram Kishan as defendant no.1 and his son Jarnail Singh as defendant no.2 (respondent no.4 herein). On death of Ram Kishan, his two other sons namely Sheo Ram and Phool Singh (respondent no.3 herein) were impleaded as his legal representatives. Sheo Ram has also since died and is represented by his widow and son (respondents no.1 and 2 herein).
Plaintiff is a Commission Agent. Defendants are farmers. They used to sell their crop at the shop of the plaintiff. Plaintiff's case is that defendants borrowed Rs.63,500/- on 05.02.1996 and Rs.500/- on 17.05.1996. They sold wheat valuing Rs.10,804/- and Rs.719/- on 17.05.1996. After adjusting the same, sum of Rs.52,477/- remained due from the defendants as principal amount. Plaintiff also claimed Rs.39,643/-
as interest thereon till the filing of the suit @ 2% per month. Accordingly, the plaintiff filed suit for recovery of Rs.92,120/-.
Defendants controverted the plaintiff's claim and denied having borrowed any amount from the plaintiff. However, defendants admitted that they had been selling their agricultural produce at the shop of the plaintiff and plaintiff used to get thumb impressions/signatures of the defendants in the account books regarding payment of amount of agricultural produce. Various other pleas were also raised.
R. S. A. No. 1450 of 2011 (O&M) 3
Learned Civil Judge (Junior Division), Yamuna Nagar at Jagadhri, vide judgment and decree dated 03.04.2008, dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri, vide judgment and decree dated 13.08.2010. Feeling aggrieved, plaintiff has filed the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
Plaintiff's partner Darshan Lal appeared as PW-1 and broadly stated according to his version and produced various documents. On the other hand, Jarnail Singh (defendant no.2) appeared as DW-2. Defendants also examined Phool Singh (one of the legal representatives of defendant no.1) as DW-1 and Sampooran Singh as DW-3.
Counsel for the appellant contended that the defendants, by alleging in their written statements that the plaintiff used to obtain thumb impressions of the defendants in account books, have impliedly admitted their thumb impressions on the disputed entries of advancement of Rs.63,500/- on 05.02.1996 and Rs.500/- on 17.05.1996, although in the witness-box, the same were denied. It was also contended that statement of plaintiff's partner, coupled with entries in account books maintained in regular course of business, is sufficient to prove the plaintiff's case. Reliance in support of this contention has been placed on two judgments of R. S. A. No. 1450 of 2011 (O&M) 4 this Court namely Kaka Ram Sohanlal and others vs. Firm Thakar Das Mathra Das and another reported as AIR 1962 Punjab 27 (V 49 C 6) and M/s Kulu Transport Co operative Society Ltd. vs. M/s Arora Trader reported as 1978 Revenue Law Reporter 373.
I have carefully considered the aforesaid contention, but find myself unable to accept the same.
There is sole testimony of plaintiff's partner coupled with entries in plaintiff's account books. On the other hand, there are statements of defendant no.2 and one legal representative of defendant no.1 and another witness. Plaintiff's sole self-serving oral statement is not sufficient to prove that the disputed entries regarding advancement of amounts bear thumb impressions of the defendants, particularly when the same have been denied by the defendants in the witness-box. The plaintiff did not examine any finger print expert to prove the said thumb impressions on the disputed entries. Science of comparison of finger prints is perfect science, but in spite thereof, the plaintiff did not choose to examine any finger print expert. It is correct that in appropriate cases, suit may be decreed on the statement of plaintiff coupled with entries in account books, if found to be reliable. However, in the instant case, both the courts have analysed the evidence led by the parties and have come to concurrent finding that plaintiff has failed to prove the advancement of disputed amounts. The entries in account books of the plaintiff have been found to be suspicious, for reasons recorded R. S. A. No. 1450 of 2011 (O&M) 5 by the courts below. In view thereof, the said entries coupled with statement of plaintiff's partner are not sufficient to fasten liability on the defendants.
Concurrent finding of fact recorded by the courts below is justified by the evidence on record. It is not shown to be perverse or illegal nor it is based on misappreciation of misreading of evidence so as to warrant interference in exercise of second appellate jurisdiction. Fate of the lis depends on finding of fact, which cannot be interfered with in second appeal, unless there has been misreading or misappreciation of evidence or the finding is otherwise perverse or illegal, which is not so in the instant case. No question of law, much less substantial question of law, arises for adjudication in this second appeal.
For the reasons aforesaid, I find no merit in the instant second appeal, which is accordingly dismissed in limine.
February 03, 2012 ( L. N. MITTAL ) monika JUDGE