Milkh Raj vs Sham Singh on 7 September, 2009

R.S.A.No. 2112 of 2009 (O&M)                                   1



      In the High Court of Punjab and Haryana at Chandigarh


                         R.S.A.No. 2112 of 2009 (O&M)
                         Date of decision: 7.9.2009



Milkh Raj
                                                     ......Appellant

                         Versus



Sham Singh

                                                   .......Respondent


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:    Mr.A.K.Khunger, Advocate,
            for the appellant.

                 ****


SABINA, J.

Plaintiff Sham Singh filed a suit for recovery, which was

partly decreed by the Civil Judge (Jr.Divn.), Fazilka vide judgment

and decree dated 1.2.2005. In appeal, the said judgment and

decree were upheld by the Additional District Judge, Ferozepur vide

judgment and decree dated 30.3.2009. Hence, the present appeal

by the defendant.

Brief facts of the case, as noticed by the lower appellate

Court in para Nos. 2 and 3 of its judgment, are as under:-
R.S.A.No. 2112 of 2009 (O&M) 2

“Brief facts of the case of the plaintiff-respondent before

the learned lower Court are that on 2.5.2000, the

defendant borrowed a sum of Rs.1,50,000/- from the

plaintiff and in lieu thereof exexuted the pronote and

receipt in his favour on 2.5.2000. The defendant agreed

to pay interest at the rate of 2% per annum. However, the

defendant failed to make the payment of the principal

amount or the interest thereon despite repeated requests

made by the plaintiff. Even the pronote was also

presented to the defendant to make the payment of the

amount in question but he has put off the matter on one

pretext or the other. Even before the filing of the present

suit, the plaintiff served a legal notice upon the defendant

through his counsel by registered post but the defendant

failed to make the payment of the outstanding amount.

3. Notice of the suit was given to the defendant,

who appeared through his counsel and filed written

statement taking preliminary objections that the plaintiff

has concealed the material and patent facts from the

court and as such the suit is not maintainable; that the

defendant is an illiterate person and does not know how

to read and write Punjabi, whereas the pronote and

receipt bears the signatures of the defendant in Punjabi

which are forged and fabricated documents and as such
R.S.A.No. 2112 of 2009 (O&M) 3

the defendant is not liable to pay any amount to the

plaintiff. The defendant further submitted that the

defendant is a resident of Village Salemshah, whereas

the plaintiff is a resident of village Mullianwali and there is

no dealing between them nor he ever borrowed any

money from the plaintiff on the basis of the alleged

pronote and receipt; that the alleged amount is a big sum

and there was no occasion for the defendant to borrow

this amount from the plaintiff; that the present suit has

been filed just to harass the defendant and as such the

suit is liable to be dismissed with special costs; that the

plaintiff has no locus standi to file the present suit. On

merits, the defendant affirmed the stand as taken up in

the preliminary objection and it was inter alia pleaded that

since no amount was borrowed by the defendant from the

plaintiff on the basis of the alleged pronote and receipt,

the question of its payment does not arise. The plaintiff is

not known to the defendant and as such there was no

question of any monetary dealings between them. Rest

of the averments were denied and finally prayed for

dismissal of the suit.”

On the pleadings of the parties, following issues were

framed by the trial Court:-

“1. Whether the defendant borrowed an amoun of
R.S.A.No. 2112 of 2009 (O&M) 4

Rs.1,50,000/- on 2.5.2000 and in lieu thereof executed

pronote and receipt dated 2.5.2000? OPP

2. Whether the plaintiff is entitled to recover

interest on loan amount of Rs. 1,50,000/- if so at what

rate? OPP

3. Whether the suit of the plaintiff is not

maintainable? OPD

4. Whether the pronote and receipt dated

2.5.2000 is result of fraud and fabricated? OPD

5. Relief. “

After hearing learned counsel for the appellant, I am of

the opinion that the present appeal deserves to be dismissed.

Plaintiff Sham Singh had filed a suit for recovery on the

basis of pronote and receipt dated 2.5.2000. In order to prove his

case, plaintiff examined PW-1 Arjan Dass, who had scribed the

pronote and receipt Ex.P-3 and Ex.P-4 respectively. In order to

establish the due execution of the pronote and receipt, plaintiff also

examined PW-3 Sukhchain Singh, one of the attesting witnesses to

the pronote and receipt. The plaintiff himself also appeared in the

witness box as PW-2 in support of his case. Both the Courts below,

after appreciating the evidence led by the parties on record, have

given a finding of fact that the pronote and receipt were duly proved

to have been executed by the defendant and hence, decreed the suit

of the plaintiff. The plea taken by the appellant was that he was an
R.S.A.No. 2112 of 2009 (O&M) 5

illiterate person and hence, could not sign the pronote and receipt.

However, apart from the oral evidence led by the appellant, he failed

to establish that the pronote and receipt were not signed by him.

Moreover, from the testimony of the witnesses examined by the

plaintiff, it was duly established that the pronote and receipt were

executed by the appellant after acceptance of the amount in

question. The finding of fact arrived at by both the Courts below

does not call for any interference in this appeal.

No substantial question of law arises in this regular

second appeal. Accordingly, the same is dismissed.

(SABINA)
JUDGE
September 07, 2009
anita