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Balwinder Singh vs Joginder Pal on 18 February, 2009

Punjab-Haryana High Court
Balwinder Singh vs Joginder Pal on 18 February, 2009
Civil Revision No. 5136 of 2007 (O&M)                                       1


         IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                         CHANDIGARH
                               -.-

                  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
                       -.-

Present:    Mr. Vipin Mahajan, Advocate
            for the petitioner/defendant

            None for the respondent/plaintiff
                          -.-

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

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