R.S.A.No. 2647 of 2009(O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 2647 of 2009(O&M)
Date of Decision:July 16, 2009
KulbirSingh Dhanju
---Appellant
versus
Harchand Singh
---Respondent
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr. Sanjay Verma,Advocate,
for the appellant
***
SABINA, J.
Plaintiff -Harchand Singh had filed a suit for recovery of Rs.
1,57,630/-. The suit of the plaintiff was decreed by Additional Civil Judge
(Senior Division),Kaithal vide judgment and decree dated 19.12.2006.
Aggrieved by the same, defendant preferred an appeal and the same was
dismissed by District Judge, Kaithal vide judgment and decree dated
27.3.2009. Hence, the present appeal by the defendant.
The facts of the case as noticed by the learned Additional
District Judge, in paras 2 to 4 of its judgment read as under:-
“The brief relevant facts, as emanating from the pleadings of
R.S.A.No. 2647 of 2009(O&M) {2}
the parties, are that the defendant had borrowed a sum of Rs.
1,60, 000/- from the plaintiff. The payment was received by the
defendant vide cheque No. 592133 dated 14.7.1997 for Rs.
44,500/- and cheque No. 592135 dated 15.7.1997 for Rs.
71,500/- issued by the plaintiff. The defendant had agreed to
pay interest at the rate of 1.5 percent per month to the plaintiff
on the aforesaid amount. The defendant failed to return the
amount along with interest. Accordingly the plaintiff filed this
suit for recovery of the above principal amount along with
interest calculated at the rate of 1.5% per month uptil the date
of filing of the suit.
The defendant in his written statement denied to have
borrowed the above amount from the plaintiff as such. He
further elaborated that a family settlement was arrived between
the parties to the suit besides other members of the family
named as Gulzar Singh, Kapoor Singh and Bishan Singh. The
same was reduced into writing on 8.5.1998. It was duly signed
by the parties to the suit besides all other members. It was
further pleaded that the said agreement dated 8.5.1998 was
acted upon partially by partition of the land in terms of this
agreement. As per the above agreement the plaintiff and his
brother Kapoor Singh admitted their liability to pay a sum of
Rs. 3,21,500/- to the defendant and his brother Gulzar Singh.
Thereafter the plaintiff along with his above brother also
admitted their liability to pay a sum of Rs. 80,000/- in lieu of
the plot situated at Dhand Road, Kaithal as per the agreement
R.S.A.No. 2647 of 2009(O&M) {3}
executed on 16.5.1999. In another ‘panchayati faisla’ arrived at
on 9.1.1999 the plaintiff and his above brother Kapoor Singh
further admitted their liability to pay a sum of Rs. 4,01,500/- to
the defendant and his brother Gulzar Singh. It was further
pleaded that these two agreements dated 9.1.1999 and
16.5.1999 were executed in terms of the agreement and award
dated 8.5.1998 referred to hereinabove.
The defendant further pleaded that the plaintiff and
his brother Kapoor Singh forged and fabricated blank papers to
fabricate document dated 25.10.1999. Even in that the plaintiff
had admitted that there was nothing due to him from the
defendant. The defendant further pleaded that he had initiated
proceedings under Section 340 Cr.P.C. read with Section
420/464/468/471/120-B of Indian Penal Code against the
plaintiff and his brother Kapoor Singh for forging the above
document. The defendant pleaded that the plaintiff has been
admitting the alleged agreements dated 9.1.1999 and 16.5.1999
consistently. In view thereof defendant pleaded that the
plaintiff was estopped from his act and conduct from bringing
the present suit. He accordingly prayed for dismissal of the
above suit.
On the pleadings of the parties, trial court framed the following
issues:-
“(1)Whether the defendant borrowed a sum of Rs. 1,16,000/-
from the plaintiff as alleged in para No. 1 of the plaint? OPP
(2)Whether the plaintiff is entitled to interest at the rate of 1 ½
R.S.A.No. 2647 of 2009(O&M) {4}
% per month? OPP
(3)Whether the plaintiff has concealed the true and material
facts from the court? OPD
(4)Whether the plaintiff is estopped by his own set and conduct
to file the present suit? OPD
(5)Whether the plaintiff has no cause of action to file the
present suit? OPD
(6)Whether the suit is not maintainable in the present
form?OPD
(7)Whether the suit of plaintiff is false, frivolous and liable to
be dismissed with special costs? OPD
(8)Relief.
After hearing learned counsel for the appellant, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiff had filed a suit for recovery on the basis of two
cheques issued by him to the defendants as advancement of loan. One
cheque for Rs. 44,500/- was issued on 14.7.1997 and the second cheque
for Rs. 71,500/- was issued on 15.7.1997. The case of the plaintiff is that
the said cheques were duly encashed by the defendant. However, the loan
amount in question was not returned by the defendant. Defendant has
admitted the receipt of said two cheques in question. However, the case of
the defendant is that the said two cheques were issued by the plaintiff to him
in discharge of his liability as reflected in subsequent settlements. The
cheques in question, pertain to the share of crop of the defendant in the
land which was cultivated by the plaintiff. However, the defendant has
failed to substantiate his plea by leading any cogent and convincing
R.S.A.No. 2647 of 2009(O&M) {5}
evidence. The defendant failed to produce on record the original award
dated 8.5.1998 on which reliance was placed by the defendant. Defendant
also failed to place on record any panchayat decision dated 9.1.1999 and
16.5.1999. Since the defendant had failed to produce on record the said
documents before the trial court, learned District Judge had rightly
dismissed the application for permission to lead additional evidence as the
application did not fall within the provisions of Order 41 Rule 27 of the
Code of Civil Procedure. No interference by this Court is called for.
No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
July 16, 2009
PARAMJIT