RSA No. 634 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.634 of 2005
Decided on : 02-02-2009
Ram Singh
....Appellant
VERSUS
Gajjan Singh
....Respondent
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. Suresh Goel, Advocate for the appellant
Mr. Tribhuwan Singla, Advocate for the respondent
MAHESH GROVER, J
This appeal is directed against the judgments of the learned
Trial Court dated 12.4.2004 and the First Appellate Court dated 11.5.2004.
In a suit for recovery which is initiated by the respondent on the
basis of pronote, the appellant who was the defendant took up the plea that
he has paid the amount. The plaintiff-respondent had filed a suit for
recovery of Rs.60,000/- as principal amount alongwith Rs. 21,250/- by way
of interest. The defendant having set up the plea that he has paid the
amount exhibited the document (Ex.D-1) to contend that it was a receipt
indicating the payment of the entire amount to the plaintiff-respondent. It
was stated that the receipt was executed in the presence of one Roshan
Singh. The document during the course of proceedings was not objected to
in so far as the admissibility of the same was concerned.
Both the Courts returned a finding that Ex. D-1 could not have
been looked into as it was un-stamped.
Learned counsel for the appellant assailed the aforesaid
findings of the Courts below to say that it was not necessary that the
RSA No. 634 of 2005 2
document be stamped. Reliance was placed on AIR 2001 SC 1321 wherein
it was observed as under:-
“If the trial Court finds that the instrument is
insufficiently stamped, it should have asked the appellant as to
whether he would remit the deficient portion of the stamp duty
together with a penalty amounting to ten times the deficiency. If the
appellant agrees to remit the said amount the Court has to proceed
with the trial after admitting the document in evidence. In the
meanwhile, the Court has to forward a copy of the document to the
Collector for the purpose of adjudicating on the question of
deficiency of the stamp duty as provided in S.40(a)(b) of the Act.
Only if the appellant is unwilling to remit the amount the Court is to
forward the original of the document itself to the Collector for the
purpose of adjudicating on the question of deficiency of the stamp
duty. The penalty of ten times indicated therein is the upper limit and
the Collector shall take into account all factors concerned in deciding
as to what should be the proper amount of penalty to be imposed.”
It is contended that merely because the document was not
stamped the same could not be precluded from consideration.
On the other hand, learned counsel for the respondent stated
that Ex.D-1 on which strong reliance has been placed was not proved in
accordance with law and even if the findings of the Court below regarding
the stamping of the document is to be ignored, it could not be relied upon
for the purposes of granting any benefit to the appellant.
I have heard learned counsel for the parties and have perused
the impugned judgments.
RSA No. 634 of 2005 3
A perusal of the impugned judgments shows that document
Ex.D-1 by the appellant to which the plaintiff-respondent had not objected
to. Admissibility of a document without an objection does not dispense
with the standard of proving it, which is required to prove the contents of
the same. The appellant who relied upon the receipt was therefore under a
bounden duty to prove the contents of the same. No scribe was produced
and no other witnesses were produced except one Roshan Singh, DW1 in
whose presence the amount was allegedly paid. His testimony, however,
reveals that he does not know as to whether any signatures were appended
by the appellant on the receipt or not. He has further stated in his testimony
that the receipt was accepted for an amount of Rs.1 lakh whereas Ex. D-1 is
merely for a sum of Rs. 60,000/-.
In this view of the matter, testimony of Roshan Singh is not
inspiring enough to accept the stand of the appellant. It is thus concluded
that the appellant has failed to substantiate the contents of Ex. D-1 by
producing witnesses and has failed to prove the execution of the same and
therefore the findings of both the Courts below regarding the document
being stamped would be of no relevance as the same has to be discarded in
view of the fact that the same has not been proved in accordance with law.
The burden to prove has not been discharged satisfactorily. No substantial
question of law has been shown to have arisen in the present appeal and the
same being devoid of any merit is hereby dismissed.
February 2 , 2009 (Mahesh Grover) rekha Judge