Civil Revision No. 5136 of 2007 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Civil Revision No. 5136 of 2007 (O&M)
Date of decision : 18.02.2009
Balwinder Singh .......Petitioner
Versus
Joginder Pal ......Respondent
Coram: Hon'ble Ms Justice Nirmaljit Kaur
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Present: Mr. Vipin Mahajan, Advocate
for the petitioner/defendant
None for the respondent/plaintiff
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Nirmaljit Kaur, J.(Oral)
C.M. No. 19348 CII of 2007
This application has been filed by the petitioner under Order
41 Rule 27 read with Section 151 C.P.C. seeking permission for placing on
record certified copies of the judgements and decrees (Annexure P-1 to P-
3) by way of additional evidence.
It is contended by the learned counsel for the
applicant/petitioner that the trial Court vide judgement and decree dated
16.12.2002, decreed the suit of the plaintiff/respondent. He further
contends that at the time of passing of the aforesaid judgement and decree,
the judgements and decrees, which are sought to be produced on record as
additional evidence, were not available and, as such, could not be
produced. Though, the petitioner admitted in cross examination that the
suits are pending.
Civil Revision No. 5136 of 2007 (O&M) 2
Having gone through the pleadings and the judgements and
decrees of the Courts below, I find that the judgements and decrees, which
are sought to be produced on record as additional evidence, have material
bearing on the fate of the present suit. To arrive at a just and proper
decision, it is necessary to allow these judgements and decrees (Annexure
P-1 to P-3) to be taken on record. Further, at the time of admission of the
revision petition, learned counsel appearing for the respondents did not
object to the present application. Even today, learned counsel for the
respondent has not come present.
In view of the above, the present application is allowed and the
judgments and decrees (Annexure P-1 to P-3) are taken on record.
C.M. stands disposed of.
Civil Revision No. 5136 of 2007
This civil revision has been directed against the judgement and
decree dated 16.12.2002 passed by the Additional Civil Judge (Senior
Division), Gurdaspur, decreeing the suit of the respondent/plaintiff for
recovery of Rs.10,000/- along with interest and the judgement and decree
dated 29.05.2007 passed by the Additional District Judge (Adhoc), Fast
Track Court, Gurdaspur, thereby, affirming the judgement and decree of the
trial Court, while dismissing the appeal filed by the petitioner/defendant.
Learned counsel for the petitioner has raised a law point as to
whether mere registration of a FIR and the admission qua pendency of
three more suits against the petitioner, is sufficient to decree the suit,
especially when all those suits were dismissed by the trial Court on merits
and have attained finality. In all these suits, same witnesses had appeared
Civil Revision No. 5136 of 2007 (O&M) 3
against the petitioner, as in the present suit. Since both the Courts have
dismissed the suit of the petitioner on the ground that three more suits on
the identical issues, are pending and FIRs has also been registered against
him, outcome of the law point has material bearing on the conclusion of the
present case. However, the law point is accordingly framed.
The allegations in the suit was that the petitioner/defendant
took Rs.10,000/- from the plaintiff and assured him to arrange VISA for
Libia, but he neither arranged for the VISA, nor returned Rs.10,000/-. It
was further alleged in the suit that the petitioner/defendant has retained
with him the original passport of the plaintiff/respondent. To that effect, a
case under section 420 of the Indian Penal Code was also registered against
the petitioner/defendant. The plaintiff examined two witnesses i.e. Robin
Masih as PW1 and Seema as PW2. The plaintiff also stepped into the
witness box as PW 3. While decreeing the suit of the plaintiff/respondent,
the trial Court has basically taken into consideration three grounds; firstly,
Robin Masih (PW1) and Seema (PW2) had fully supported the case of the
plaintiff; Secondly, FIR under Section 420 IPC had been registered against
the petitioner/defendant, and thirdly, three more cases having almost
similar allegations as in the present suit, were also pending against the
petitioner and lastly, held that there is no reason to falsely implicate the
petitioner/ defendant.
Having heard the learned counsel for the petitioner at and also
having perused the pleadings, I find that it is a fit case, warranting
interference by this Court in the impugned judgements and decrees passed
by both the Courts below. One of the allegations in the suit was that the
Civil Revision No. 5136 of 2007 (O&M) 4
petitioner/ defendant did not return the original passport of the plaintiff/
respondent. It is an admitted position that no witness from the office of the
the Regional Passport was ever produced by the plaintiff so as to prove that
a passport, in question, had ever been issued to him. A very feeble attempt
was made to show the existence of the passport in question by mentioning
its number in the plaint. There was no other evidence on the record to
corroborate that the number of the passport in question as mentioned in the
plaint was of a passport belonging to the plaintiff or someone else. In the
absence of any such evidence, this very allegation appears to be untenable
and, as such, unsustainable in the eyes of law. The second ground on
which both the Courts below have gone to hold the petitioner/defendant
guilty, was that FIR under Section 420 IPC was registered against the
petitioner/defendant on the basis of very same allegation. Learned counsel
for the petitioner has placed on the record of this case a certified copy of
the judgement and decree dated 29.08.2008 passed by the Additional Chief
Judicial Magistrate, Gurdaspur, vide which, the petitioner has since been
acquitted. The aforesaid judgement and decree is taken on record and
marked as ‘A’. Even if the aforesaid judgement and decree is not taken on
record, the fact remains that the plaintiff was required to stand on his own
legs to prove his case in the suit. No documentary evidence has been
produced on record either in the form of receipt, pronote or
acknowledgement for the alleged delivery of Rs.10,000/- by the plaintiff to
the petitioner. A mere registration of a FIR against the petitioner does not
prove the allegations. The third ground on which both the Courts below
held the petitioner/defendant responsible was that three separate similar
Civil Revision No. 5136 of 2007 (O&M) 5
suits for recovery against the petitioner were also pending. The pendency
of various suits is not sufficient ground to hold the petitioner/defendant
liable in the present case. Each and every case has to be examined and
decided independently. Even otherwise, the said suits have since been
dismissed. A number of judgements and decrees Annexures P1 to P3, have
been placed on record vide civil miscellaneous No 19348 CII of 2007.
On a careful examination of the aforesaid judgements and
decrees (Annexures P-1 to P-3), it transpires that in all the four different
suits filed by the different plaintiffs, namely, Balbir Masih, Joginder Pal,
Sat Pal and Kundan Masih, the plaintiffs had examined the very same two
witnesses, i.e. Robin Masih (PW1) and Seema (PW2), as in the present
case. Obviously, these two witnesses cannot be chance witnesses and, are
planted witnesses. Hence, their evidence cannot be considered to be
trustworthy.
Thus, it is accordingly held that the registration of FIR and the
admission regarding pendency of the three suits, in itself, is not a sufficient
ground to hold the petitioner guilty, especially when all those suits stood
dismissed subsequently in which the two independent witnesses examined,
were same.
Resultantly, the present civil revision petition stands accepted.
The impugned judgements and decrees passed by both the Courts below are
hereby set aside and the suit of the plaintiff/respondent is accordingly
dismissed.
[Nirmaljit Kaur]
Judge
February 18, 2009
mohan
