High Court Punjab-Haryana High Court

Ram Singh vs Gajjan Singh on 2 February, 2009

Punjab-Haryana High Court
Ram Singh vs Gajjan Singh on 2 February, 2009
RSA No. 634 of 2005                    1

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                           RSA No.634 of 2005
                          Decided on : 02-02-2009

Ram Singh
                                                   ....Appellant
                      VERSUS

Gajjan Singh
                                                   ....Respondent

CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER

Present:- Mr. Suresh Goel, Advocate for the appellant

Mr. Tribhuwan Singla, Advocate for the respondent

MAHESH GROVER, J

This appeal is directed against the judgments of the learned

Trial Court dated 12.4.2004 and the First Appellate Court dated 11.5.2004.

In a suit for recovery which is initiated by the respondent on the

basis of pronote, the appellant who was the defendant took up the plea that

he has paid the amount. The plaintiff-respondent had filed a suit for

recovery of Rs.60,000/- as principal amount alongwith Rs. 21,250/- by way

of interest. The defendant having set up the plea that he has paid the

amount exhibited the document (Ex.D-1) to contend that it was a receipt

indicating the payment of the entire amount to the plaintiff-respondent. It

was stated that the receipt was executed in the presence of one Roshan

Singh. The document during the course of proceedings was not objected to

in so far as the admissibility of the same was concerned.

Both the Courts returned a finding that Ex. D-1 could not have

been looked into as it was un-stamped.

Learned counsel for the appellant assailed the aforesaid

findings of the Courts below to say that it was not necessary that the
RSA No. 634 of 2005 2

document be stamped. Reliance was placed on AIR 2001 SC 1321 wherein

it was observed as under:-

“If the trial Court finds that the instrument is

insufficiently stamped, it should have asked the appellant as to

whether he would remit the deficient portion of the stamp duty

together with a penalty amounting to ten times the deficiency. If the

appellant agrees to remit the said amount the Court has to proceed

with the trial after admitting the document in evidence. In the

meanwhile, the Court has to forward a copy of the document to the

Collector for the purpose of adjudicating on the question of

deficiency of the stamp duty as provided in S.40(a)(b) of the Act.

Only if the appellant is unwilling to remit the amount the Court is to

forward the original of the document itself to the Collector for the

purpose of adjudicating on the question of deficiency of the stamp

duty. The penalty of ten times indicated therein is the upper limit and

the Collector shall take into account all factors concerned in deciding

as to what should be the proper amount of penalty to be imposed.”

It is contended that merely because the document was not

stamped the same could not be precluded from consideration.

On the other hand, learned counsel for the respondent stated

that Ex.D-1 on which strong reliance has been placed was not proved in

accordance with law and even if the findings of the Court below regarding

the stamping of the document is to be ignored, it could not be relied upon

for the purposes of granting any benefit to the appellant.

I have heard learned counsel for the parties and have perused

the impugned judgments.

RSA No. 634 of 2005 3

A perusal of the impugned judgments shows that document

Ex.D-1 by the appellant to which the plaintiff-respondent had not objected

to. Admissibility of a document without an objection does not dispense

with the standard of proving it, which is required to prove the contents of

the same. The appellant who relied upon the receipt was therefore under a

bounden duty to prove the contents of the same. No scribe was produced

and no other witnesses were produced except one Roshan Singh, DW1 in

whose presence the amount was allegedly paid. His testimony, however,

reveals that he does not know as to whether any signatures were appended

by the appellant on the receipt or not. He has further stated in his testimony

that the receipt was accepted for an amount of Rs.1 lakh whereas Ex. D-1 is

merely for a sum of Rs. 60,000/-.

In this view of the matter, testimony of Roshan Singh is not

inspiring enough to accept the stand of the appellant. It is thus concluded

that the appellant has failed to substantiate the contents of Ex. D-1 by

producing witnesses and has failed to prove the execution of the same and

therefore the findings of both the Courts below regarding the document

being stamped would be of no relevance as the same has to be discarded in

view of the fact that the same has not been proved in accordance with law.

The burden to prove has not been discharged satisfactorily. No substantial

question of law has been shown to have arisen in the present appeal and the

same being devoid of any merit is hereby dismissed.

February 2 , 2009                            (Mahesh Grover)
rekha                                            Judge