IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 238 of 2008
Date of decision: 9th December, 2008
Paramjit Singh
... Appellant
Versus
Ajit Singh Saggi
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Divjyot Singh Sandhu, Advocate for the appellant.
KANWALJIT SINGH AHLUWALIA, J.
On November 10, 2008, this Court had passed the following
order:
"Present: Mr. Divjyot S. Sandhu, Advocate
for the appellant.
On the last date of hearing, learned counsel stated that
the debt in the present case was acknowledged on 23.1.1996
and the suit was filed on 23.1.1999 and thus, the suit was
barred by time. Not a single whimper was raised before the
two Courts below. Quizzed by this, I called for the calendar
observed by the Civil and Criminal Subordinate Courts in the
State of Punjab. It surfaced that in the year 1999, 22.1.1999
was holiday being Basant Panchami. Therefore, the suit had
been filed within time and that is why no argument was raised
before the two courts below.
At this stage, learned counsel for the appellant states
that cost of Rs.300/- was awarded and the same was not paid.
This objection was taken in the written statement and
accordingly issue No.7A was formulated. Learned counsel
further states that learned trial Court have examined this issue
Regular Second Appeal No.238 of 2008 2
in para 22 of the judgment, a perusal of the same reveal that
learned trial Court has stated that on the day when cost was to
be paid, adjournment was sought for filing of written statement
and several other orders were passed lateron till the written
statement was filed with this objection. Whether the same will
tantamount to waiver or not?, learned counsel wants to
address the arguments.
Adjourned to 17.11.2008.”
Two arguments had been raised before me that suit was
barred by limitation and secondly the suit of the respondent plaintiff was
dismissed, same was ordered to be restored on an application filed by the
respondent plaintiff subject to payment of cost of Rs.300/- and the same
was not paid, therefore, the suit ought to have been dismissed.
The first argument, on facts, as noticed in my order, is not
available, as 22nd January, 1999 was a local holiday in the district
Kapurthala. Second argument is also liable to be rejected in view of the law
laid down in “Prem Sagar and others v. Phul Chand and others” 1983
PLR 797, wherein a Full Bench of this Court has held as under:
“16. To conclude, both on principle and precedent, as
also on the language of Section 35-B, the answer to the
question posed at the very outset is rendered in the negative.
It is held that the party defaulting in the payment of costs on
the date fixed for the payment thereof (on which date this
issue is not at all raised) cannot on subsequent date or dates
be barred afresh from further prosecuting the suit or the
defence, as the case may be.”
Since the two arguments raised before me stand rejected and
the appeal is to be dismissed, it is necessary to notice brief facts of the
case.
In the present case, suit was filed by Ajit Singh through his
Attorney, Raj Kumar for recovery of Rs.4,71,570/- on the basis of
Regular Second Appeal No.238 of 2008 3
agreement dated 23rd December, 1996. The case set out in the plaint was
that defendant approached and obtained a loan for Rs.62,000/- for
domestic requirement. The loan was paid on 12.11.1992 and rate of
interest fixed was one percent. Thereafter, again amount of Rs.2.00 lacs
was borrowed at the same rate of interest. In all, Rs.2,62,000/- were taken
as loan and four cheques were issued by the defendant. Cheques were
presented and they bounced. Plaintiff approached the defendant on
28.12.1994. Appellant defendant executed an agreement in the presence
of witnesses and undertook to pay Rs.3,06,000/- in monthly installments of
Rs.5,000/- each. The payment was not made. Another agreement was
executed on 23.01.1996 by the appellant defendant in presence of the
witnesses and the amount acknowledged was Rs.3,28,920/- and half
yearly installments of Rs.25,000/- each was to be paid. The first installment
was to be paid on 30th June, 1996. Since no amount was paid, therefore,
suit was filed. Defendant appeared, denied having taken Rs.62,000/- as
loan, admitted issuance of cheques but stated that the suit and the amount
of cheques is barred by time.
Court examined the issues raised. Court placed reliance upon
testimony of Charanjit Singh Walia and Arun Khosla, PW-1 and PW-2
respectively. Plaintiff himself appeared as PW-3. Defendant, despite
various opportunities given, could not examine any witness and his
evidence was closed by the orders of the Court on 8th June, 2006. Court
believed in the evidence led by the plaintiff, dealt with the plea regarding
non-payment of the cost and decreed the suit and held plaintiff entitled to
recovery of Rs.2,62,000/- along with interest at the rate of one percent per
month.
Defendant had filed an appeal. The appellate Court concurred
with the findings recorded by the trial Court. Plea of limitation and non-
payment of cost was also rejected.
Regular Second Appeal No.238 of 2008 4
Since as a prelude to this judgment, I had noticed two
contentions and had rejected the same, as stated earlier, in view of the fact
that there was a local holiday on 22nd January, 1999, therefore, the suit was
filed on 23rd January, 1999 and was within limitation and the law enunciated
by the Full Bench also demolishes the argument that non-payment of cost
was sufficient for dismissal of the suit, even though on subsequent dates
proceedings of the suit continued, being untenable in view of the
observations made by Full Bench of this Court.
Therefore, there is no merit in the present appeal and the
same is dismissed.
(Kanwaljit Singh Ahluwalia)
Judge
December 9, 2008
rps