Mukhtiyar Singh vs Satish Kumar

Mehinder Singh Sullar, J.—The compendium of the facts, which requires to be noticed for the limited purpose of deciding the sole

controversy, involved in the instant regular second appeal and emanating from the record, is that Satish Kumar son of Dhanpat Ram Respondent-

Plaintiff (for short ""the Plaintiff"") filed the suit against Mukhtiyar Singh son of Subh Ram Appellant-Defendant (for brevity ""the Defendant"") for a

decree of recovery of Rs. 1,54,200/-(principal Rs. 1,20,000/-plus interest Rs. 34,200/-) alongwith interest, inter-alia pleading that the Defendant

had borrowed a sum of Rs. 1,20,000/-for the purpose of household expenses and duly executed the pronote (Ex.P1) and receipt (Ex.P2) in this

respect in his favour. He did not pay the amount despite repeated requests and registered legal notice dated 2.9.2006 (Ex.P3). It necessitated the

Plaintiff to file the suit. On the basis of aforesaid allegations, the Plaintiff filed the suit seeking a decree for recovery against the Defendant in the

manner indicated hereinbefore.

The Defendant contested the suit and filed the written statement, taking certain preliminary objections of, maintainability of the suit, cause of

action and locus standi of the Plaintiff. According to the Defendant that although he had borrowed an amount of Rs. 1,20,000/-from the Plaintiff

and executed the pronote (Ex.P1) and receipt (Ex.P2), but he had repaid the indicated amount alongwith interest on 17.6.2005 in the presence of

Neelam wife of Phool Singh and Roshan Lal Lambardar. The Plaintiff was stated to have assured him, to torn the pronote after going to his house.

It will not be out of place to mention here that the Defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal

of the suit.

Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the Plaintiff filed the replication. In the

wake of pleadings of the parties, the trial Court framed the essential issues for proper adjudication of the case.

The Plaintiff, in order to substantiate his claim, appeared as his own witness as PW1 and has tendered into evidence his affidavit (Ex.PW1/A)

and produced PW2 Jitender son of Mahabir Singh, attesting witness, who has also tendered his affidavit (Ex.PW2/A) and identified his signatures

on pronote (Ex.P1) and receipt (Ex.P2), besides producing copies of legal notice (Ex.P3), registered letter (Ex.P4) and acknowledgment (Ex.P5).

The Defendant did not produce a single witness, in order to prove his case despite numerous opportunities including the last opportunity.

The trial Court, after taking into consideration the evidence on record, decreed the suit of the Plaintiff, by virtue of impugned judgment and

decree dated 13.8.2010.

Aggrieved by the decision of the trial Court, the Defendant filed the appeal, which was dismissed with costs as well, by the Ist Appellate Court,

through the medium of impugned judgment and decree dated 24.1.2011.

The Appellant-Defendant still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the present

regular second appeal.

After hearing the learned Counsel for the Appellant-Defendant, going through the record with his valuable assistance and after deep

consideration over the entire matter, to my mind, there is No. merit in the instant appeal in this context.

As is evident from the record that the Defendant has categorically admitted that he had borrowed the amount of Rs. 1,20,000/-in cash and

executed the pronote (Ex.P1) and receipt (Ex.P2) in favour of the Plaintiff. According to him, he repaid the amount alongwith interest in the

presence of Neelam wife of Phool Singh and Roshan Lal Lambardar. That means, the Defendant has accepted the transaction and execution of the

pronote and receipt. He did not produce a single witness to support his plea of repayment of the amount.

However, the celebrated argument of learned Counsel that Ist appellate Court ought to have allowed the Defendant to examine Neelam and

Roshan Lal in additional evidence, is neither tenable nor the observations of this Court in case Gurdial Singh and Ors. \Mam Chand and Ors. 2011

(1) RCR (Civil) 690 are at all applicable to the facts of this case, wherein, it was observed that ""the documentary evidence, which cannot be

created or manufactured and any official document whose authenticity is not in dispute and is capable of assisting the Court to take final decision in

respect of the dispute between the parties, such evidence should not normally be disallowed to be taken on record."" Possibly, No. one can dispute

with regard to the aforesaid observations, but the same would not come to the rescue of the Defendant in the present controversy.

As described hereinabove, the Defendant has admitted the loan, pronote and receipt. However, the case set up by the Defendant, in brief in so

far as relevant, was that he repaid the amount to the Plaintiff in the presence of indicated witnesses, but he has miserably failed to examine them

during the course of trial, despite numerous opportunities including last opportunity. To me, No. ground for additional evidence to produce them at

the appellate stage was made out, as contemplated under Order 41 Rule 27 Code of Civil Procedure. Therefore, the contrary arguments of

learned Counsel for the Appellant-Defendant ""stricto sensu"" deserve to be and are hereby repelled under the present set of circumstances.

Thus, the trial Court, after taking into consideration the entire oral as well as documentary evidence as mentioned hereinbefore, decreed the

suit of the Plaintiff. Not only that, the decision of the trial Court was upheld by the first appellate Court, by virtue of impugned judgment dated

24.1.2011, which, in substance, is (para 13) as under:

I am of the considered opinion that it is evident from para No. 1 of the written statement, filed by the Appellant, that he had taken Rs.

120000/-from the Respondent. However, he repaid the same alongwith interest to the Plaintiff on 17.6.2005 in presence of one Neelam and

Roshan Lal, Lambardar and at that time, the Plaintiff assured that he will torn out the pronote and receipt. Thus, the execution of pronote and

receipt has been admitted by the Appellant, in his written statement. The Respondent has examined Jitender, attesting witness of the pronote Ex.P1

and receipt Ex.P2 as PW-2, who testified in his examination-in-chief that on 17.4.2005, the Appellant had taken Rs. 120000/-from the

Respondent in his presence and executed a pronote and receipt in favour of the Respondent. PW-3 Virender Singh, who is another attesting

witness of the pronote Ex.P1 and receipt Ex.P2, also testified in his examination-in-chief that on 17.4.2005, the Appellant had taken Rs. 120000/-

from the Respondent in his presence and executed a pronote and receipt in favour of the Respondent. The Appellant had the opportunity to rebut

the version of the Respondent. Ironically, he did not dare to examine himself nor any other witness and even has failed to extract any incriminating

against the Respondent''s version during his cross-examination and his witnesses. In addition to it, the Appellant has failed to adduce any iota of

evidence on the file to prove his version that he has repaid the entire amount alongwith interest to the Respondent in the shape of complaint or any

witness with regard to it.

The learned Counsel for the Appellant-Defendant did not point out any material, much less cogent, to contend as to how and in what manner,

the impugned judgments and decrees of the Courts below are illegal and would invite any interference in this relevant behalf.

Meaning thereby, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the

parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, they have recorded the above

mentioned concurrent findings of fact. Such pure concurrent findings of fact based on the appraisal of evidence, cannot possibly be interfered with

by this Court, while exercising the powers conferred u/s 100 Code of Civil Procedure, unless and until, the same are illegal and perverse. No. such

patent illegality or legal infirmity has been pointed out by the learned Counsel for the Appellant, so as to take a contrary view, than that of well

reasoned decision already arrived at by the Courts below, in this regard.

No other meaningful argument has been raised by the learned Counsel for the Appellant-Defendant to assail the findings of the Courts below in

this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have

already been duly considered and dealt with by the Courts below in this behalf.

In this manner, the entire matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally

permissible and is beyond the scope of second appeal. Since No. question of law, muchless substantial, is involved, so, No. interference is

warranted, in the impugned judgments/decrees of the Courts below, in view of the law laid down by Hon''ble Apex Court in case Kashmir Singh

Vs. Harnam Singh and Another, in the obtaining circumstances of the present case.

No other legal point, worth consideration, has either been urged or pressed by the learned Counsel for the Appellant-Defendant.

In the light of aforementioned reasons, as there is No. merit, therefore, the instant appeal is hereby dismissed as such.