IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No.1570 of 2008
Date of Decision: 26.2.2009
Rattan Lal @ Rattan Singh.
....... Appellant through Shri
Anil Kshetarpal,Advocate.
Versus
M/S Gian Chand and Brothers and another.
...... Respondents through Shri
Rajinder Goyal,Advocate for
Shri Kushpal Singh,
Advocate.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This Regular Second Appeal is directed against the judgments
dated 20.7.2006 and 12.3.2008 passed respectively by the Additional Civil
Judge (Senior Division), Pehowa (hereinafter described as `the trial Court’)
and the Additional District Judge, Kurukshetra (referred to hereinafter as
`the First Appellate Court’) whereby the suit of the plaintiff-respondents was
decreed and the appeal of the defendant-appellant was partly allowed.
A suit for recovery of Rs.10,45,620/- (Rs.9,72,670/- as
principal and Rs.72,950/- as interest) along with pendente lite and future
interest at the rate of 18% per annum was filed by the respondents against
the appellant. The case of the respondents was that respondent no.1 is a
R.S.A.No.1570 of 2008
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partnership firm and was doing the business of Commission Agency,
whereas the appellant was an agriculturist and was having business dealings
with it. On 30.4.2002, there was an outstanding balance of Rs.5,80,000/-
against the appellant, which was duly acknowledged by him under his
signatures and corresponding entries were made in the accounts books. The
other amounts were also detailed in the plaint. According to the
respondents, since the appellant did not pay the outstanding amounts and
stopped bringing his agriculture produce to them, they were constrained to
file the suit. The interest was stated to have been calculated on the
outstanding amount up to 27.5.2003.
Upon notice, the appellant appeared and filed his written
statement contesting the suit. He disputed his liability to pay the amount in
question to the respondents. The other averments were also denied.
On the pleadings of the parties, the trial Court framed the
following issues:-
1. whether the plaintiff is entitled to recover an amount of
Rs.10,45,620/- along with interest pendente lite and future @
18% per annum, as alleged?OPP
2. Whether the suit of the plaintiff is not maintainable in the
present form?OPD
3. Whether the plaintiff has no locus standi and cause of action
to file and maintain the present suit?OPD
4. Whether the suit of the plaintiff is bad for non-joinder of
necessary parties?OPD
R.S.A.No.1570 of 2008-3-
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5. Relief.
After appraisal of the entire evidence on record, the trial Court
decreed the suit of the respondents for recovery of Rs.10,45,620/- along
with pendente lite and future interest at the rate of 6% per annum.
Feeling aggrieved, the appellant filed an appeal which was
partially accepted by the First Appellate Court and it was held that entries
Exhibits P4 and P9 were not proved on record. Except for the amounts
mentioned in these entries, the rest of the findings recorded by the trial
Court were upheld.
Still dis-satisfied, the appellant has filed this Regular Second
Appeal.
Learned counsel for the appellant has assailed the findings of
the Courts below and has contended that a perusal of the plaint and the
evidence which the respondents have adduced are totally at variance with
each other. It was submitted that in the plaint, a positive case was set out by
the respondents that on 30.4.2002, an outstanding balance of Rs.5,80,000/-
was reflected in the accounts books. Reference was made to paragraphs 6
and 7 of the plaint to buttress the point that this amount was further carried
forward in the accounts books, but the accounts books which were produced
and which have also been attached along with the present appeal, do not
bear out the case of the respondents. It was contended that interpolations
and manipulations in the accounts books have been made and no reliance
could have been placed thereon. It was lastly contended that the onus to
prove issue no.1 was upon the respondents and when the appellant had
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denied his signatures on the entries, it was incumbent upon them to have
proved such entries by comparing his signatures with those on other
documents, but the Courts below have erroneously held that it was for him
to prove this aspect of the matter which has resulted in perverse findings
being recorded.
On the other hand, learned counsel for the respondents argued
that the findings of fact have been recorded by the Courts below and,
therefore, the impugned judgments are perfectly in order.
I have thoughtfully considered the respective arguments and
have perused the impugned judgments, as also the certified copies of
various documents which have been placed on record by the learned
counsel for the appellant.
In my opinion, the following questions of law arise for
determination by this Court:-
1. Whether a suit for recovery could be decreed when the
pleadings and evidence led by the plaintiff are at substantial
variance?
2. Whether a plaintiff can be said to have established its case,
particularly when defendant denies borrowing any sum and
signatures on the cash book and no evidence including
document/ finger print expert is led by the plaintiff to
establish the signatures of the defendant on the account
books?
3. Whether a plaintiff is bound to lead some evidence to prove
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that the alleged signatures of the defendant on the cashbook,
particularly when, the signatures are denied by the
defendant?
4. Whether admission of the defendant can be assumed in
absence of clear and unambiguous admission of the party to
litigation?
A perusal of paragraphs 6 and 7 of the plaint reveals that the
positive case of the respondents was that there was an outstanding amount
of Rs.5,80,000/- against the appellant as on 30.4.2002 which amount was
carried forward in the manner which has been detailed in paragraph 7 and,
therefore, a net balance of Rs.6,24,670/- was there as on 1.4.2005.
Paragraphs 6 and 7 of the plaint are extracted below:-
“6. That on 30.4.2002, there was an outstanding balance of
Rs.5,80,000/- (Rs.Five lacs eighty thousand only) towards the
deft. which the deft. acknowledged under his signatures on the
corresponding entry in the account books of the plffs.
7. That during the financial year 2002-03, deft. had borrowed
advance amount on various occasions from the plffs. as shown
below. The same are duly entered in the rokar bahi of the plffs.
Date Amount
09.05.2002 650-00
16.05.2002 9000-00
31.05.2002 9400-00
29.03.2003 73620-00
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Thus, having a net balance of Rs.6,24,670/- (Rs.Six lacs
twenty four thousand six hundred seventy only) towards the
plffs. which was carried out by the plffs. in all books for the
year 2003-04 starting from 01.04.2005.”
If the aforesaid averments are tested on the strength of the
evidence which was led by the respondents in the shape of Exhibits P1, P2,
P3, P7, P9 and P10, then it transpires that the entries in the accounts books
and their plea in the pleadings do not complement each other. Exhibit P1
shows that the amount outstanding on 30.4.2002 was Rs.5,80,000/-,
whereas on 29.3.2003, it was Rs.6,64,670/-, but, as seen above, the
pleadings show that the amount outstanding as on 29.3.2003 was
Rs.6,24,670/-. Moreover, there are various interpolations in Exhibits P9
andP10 where the dates have apparently been changed as in two of the dates
reflected therein as 27.3.2003 and 28.3.2003, the figure of `5′ has been
converted into `3′. In Exhibit P8, the amount reflected is Rs.6,64,670/-,
whereas according to their own showing of the respondents, the
outstanding amount was Rs.6,24,670/-.
Further, the appellant has denied his signatures on the entries
which have been relied upon and which, in the opinion of the Court, have
been manipulated and are visible to the naked eye. Once such a change has
been set up by the appellant, the onus was upon the respondents to have
examined the handwriting expert to establish the veracity of the signatures
to bring home their plea as set up by them in their plaint.
The onus to prove issue no.1, which has been reproduced
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above, was upon the respondents. The Courts below were certainly in error
when they returned a finding that the onus to prove the falsity of the
signatures was upon the appellant. It was the respondents, who were relying
upon these entries and the signatures of the appellant and, therefore, it was
their bounden duty to prove the same beyond any shadow of doubt.
The testimony of PW1-Parveen Kumar, who was Accountant
of the respondents and that of PW2-Gian Chand are also at variance. PW1
has stated that the appellant had taken loan of Rs.5,80,000/- on 30.4.2002
regarding which entry had been made at page 6 of the rokar bahi, whereas
PW2 has stated that outstanding amount against the respondent as on
20.4.2002 was Rs.5,80,000/- and the certified copy of that entry is Exhibit
P2.
Therefore, two things glaring stand out, – (i) that the averments
as pleaded in the plaint and the subsequent evidence in support thereof are
at variance with each other and the evidence does not complement the facts.
It is a settled principle of law that a fact has to be pleaded specifically and
tested on the positive evidence to be adduced before the Court. The
pleadings and the evidence in support thereof can neither be ambiguous nor
in the conjectural domain leaving the conclusion to mere inferences, rather
than to plausible conclusions.
That apart, in a suit for recovery, the entire case depends on the
documents on which such a claim is based. The onus to prove is always
upon the person, who approaches the Court by testing his plea on the
strength of such documents. The statement of accounts and rokar bahi etc.
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as maintained by the Commission agents are accepted pieces of evidence,
but at the same time, the onus to prove them is upon the plaintiff and such
documents have to be proved in toto.
Concededly, the appellant was having business dealings with
the respondents, so much so, his father and brother were having accounts
with them and, therefore, it would not have been difficult for the
respondents to prove the signatures of the respondents and which was
imperative in the face of the denial set up by him. The Courts below were
in error in shifting the onus upon the appellant to prove that his signatures
were not existing upon the documents sought to be relied upon by the
respondents. A person is not expected to lead evidence in negative.
The aforementioned questions of law, therefore, stand answered
as above and it is held that since the pleadings and evidence are at variance
with each other and the respondents had not proved the accounts books by
establishing the signatures of the appellants on the same and also for the
reason that the appellant was not expected to lead evidence in the negative,
this Court is of the opinion that the respondents have failed to establish their
case.
Consequently, this appeal is accepted and the impugned
judgments and decrees are set aside.
February 26,2009 ( Mahesh Grover ) "SCM" Judge