Punjab-Haryana High Court
Jaswinder Singh vs Parshotam Lal Sanghi, Advocate And Ors. on 16 May, 2005
Equivalent citations: (2005)141PLR368
JUDGMENT M.M. Kumar, J.
1. This petition filed under Section 115 of the Code of Civil Procedure prays for setting aside the judgment and decree dated 29.3.2005 passed by the lower appellate Court by reversing the view taken by the Civil Judge in his judgment and decree dated 18.7.2002'. The appellate Court has found that defendant-petitioner is liable to pay sale proceeds of 1200 shares @ Rs. 21 each with interest thereon @ 12% per annum w.e.f. 13.6.1997. However, the plaintiff-respondent had restricted their claim to Rs. 24,000/- alongwith interest pendente lite @ 12% per annum from the date of institution of the suit till the date of its payment and also future interest @ 12% per annum.
2. Brief facts of the case are that the plaintiff-respondents filed a civil suit for recovery of Rs. 24,000/- against the defendant-petitioner alleging that plaintiff-respondent No.l had been dealing in shares on behalf of himself and plaintiff-respondent No. 2 his wife with Jaswinder Singh defendant-petitioner. It was alleged on April 19, 1997 he handed over 1200 share certificates to defendant-petitioner for sale at appropriate time. The details of the certificate have been given in the body of the plaint. On or about 13.6.1997 defendant-petitioner is alleged to have sold these shares to one Anirudh Khullar who was impleaded as defendant No. 1 by forging the signatures of the plaintiff-respondents on the transfer deeds. It has further been alleged that defendant No. 1 Anirudh Khullar had disclosed it to the plaintiff-respondents that a receipt memo giving the details of 1200 shares was handed over to the defendant-petitioner and another memo has also been given to him showing that the shares were sold at Rs. 21 per share. On 10.4.2000, defendant-petitioner has given to the plaintiff-respondents receipt memo dated 13.6.1997 in which distinctive numbers of all the 1200 shares have been given. However, no payment of the price of the share was made. The defendant-petitioner as well as defendant No.l Anirudh Khullar filed their separate written statement. The trial court dismissed the suit whereas the lower appellate court has reversed the findings of the trial court on the core issue as to whether the plaintiff-respondents were entitled to recover Rs. 24,000/- alongwith interest. The findings have been recorded by the lower appellate court on the basis of cogent evidence showing that 1200 shares alongwith signed shares transfer certificates were given by the City Investment Centre owned by defendant-petitioner to a sub broker namely Brisk Financial Consultants, Private Limited, New Delhi who sold the same through stock exchange. The sale proceeds were credited in the account of City Investment Centre i.e. defendant-petitioner. It would be apposite to make a reference to certain portion of para 13 of the judgment showing conclusions recorded by the Appellate Court which read as follows:-
"To my mind the chain of events is tell a tale in itself and defendant No. 2 has tried to party off its liability in an uninspiring manner. He admits that the plaintiffs were owners of 1200 shares of Bindal Agro. He admits that PL Sanghi had brought those shares to him for selling them further. Defendant No.l has admitted that defendant No. 2, as sub-broker handed over those share to him for sale. Defendant No.l has further claimed that those shares were sold through stock Exchange and sale proceeds were deposited in the bank accounts of City Investment Centre. His version of not having ever dealt with in sale and purchase of shares or debunkers was falsified by the plaintiff by making Jaswinder Singh admit in his cross-examination of having dealt, earlier, in sale and purchase of shares of Hindustan Petroleum SBI Magnum and the like, with the plaintiff. The worst which Jaswinder Singh, defendant No. 2, did to his case and cause was to adopt the posture of blank denial to his bank accounts. The evidence led on the file has removed, step by step, all of the curtains of feigned innocence of Jaswinder Singh. By not having produced his bank records, in the face of categorical claim of DW1 that sale proceeds of shares were deposited in the bank account of Jaswinder Singh to clear his breast by showing his bank accounts which he did not and in the process-exposed himself to adverse inference being drawn against him in terms of Section 114 of Indian Evidence Act."
3. In the above para, evidence in detail has been discussed as it shows the admission made by the defendant-petitioner as well as Anirudh Khullar who was defendant No. 1. The evidence as appreciated by the trial Court has also been discussed in para 16 and 17 expressing disagreement by the lower appellate court.
4. After hearing the learned counsel, I am of the considered view that this petition is liable to be dismissed because the jurisdiction of this Court under Section 102 of the Code of Civil Procedure 1908 (for brevity of Code) to entertain a second appeal is barred when the subject matter of the original suit is for recovery of money not exceeding Rs. 24,0()0/-. It is for this reason that the defendant-petitioner has invoked 115 of the Code. The power of this Court for reversing the findings under Section 115 of the Code is confined only to jurisdictional error. It is required to be shown that the subordinate court has exercised jurisdiction not vested in it by law or it has failed to exercise jurisdiction so vested or has acted in the exercise of jurisdiction illegally or with material irregularity. A valid inference under Section 114 of the Evidence Act 1872 has been drawn by the learned Lower Appellate Court when the defendant-appellant failed to produce the record showing that no amount of the sale proceeds of share has been credited to his account namely the City Investment Centre which is owned by him. For that purpose, the learned lower appellate Court has rightly placed reliance on a judgment of the Supreme Court in the case of Biltu Ram v. Jainanadan Prasad, C.A. No. 941 of 1965, dated 15.4.1965 wherein it has been held that and adverse inference is justified even though no onus on a party to prove the document has been placed. Best evidence concerning the controversy before the courts must always be produced as has been observed by the Supreme Court in the case of Muntgesan Pillai v. Gnana Sambandha Pandora Sambandi, A.I.R. 1917 P.C. 6 and Ors. as well as Mt. Bilas Kunwar v. Desraj Ranjit Singh and Ors., A.I.R. 1951 Privy Council 96. Those who withhold the best evidence from the court expose themselves to the danger of being subjected to an adverse inference against them. The aforementioned view has also been taken in the case of Gopal; Krishanji Ketekar v. Mohd, Hazi Latif and Ors., which has been followed in the case of City Bank N.A. v. Standard Chartered Bank, . In the case of Gopal Krishanji Ketekar the Supreme Court has clarified as to how an inference under Section 114 of the Evidence Act, 1872 would arise. The following observations are apposite to refer:-
"Even if the burden of proof docs not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly to furnish to the courts the best material of its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their possession which would throw light upon the proposition."
5. There is no material irregularity or jurisdictional error in exercise of power by the lower appellate Court under Section 96 of the Code. As a matter of fact, the first appellate Court is the final court of fact and this court cannot admit a revision petition or an appeal unless it raises a substantive question of law. No revision would be admissible unless a jurisdictional error is found. No such jurisdictional error is shown warranting admission of the petition. Therefore, there is no merit in this petition and same is liable to be dismissed.
For the reasons stated above, this petition fails and the same is dismissed.