Prem Singh v. Bhura Singh

Barnala, decreeing the suit of the plaintiff(now respondent) for recovery.

2. The brief facts of the case, are that Prem Singh, defendant/appellant, (now deceased), and represented by his legal heirs, took a loan of Rs.19,000/- from Bhura Singh, plaintiff, (now respondent), on 09.07.1978 and executed pronote and receipt of the even date, undertaking to repay the same with interest @ Rs.2% per mensem. Despite repeated demands, neither the principal amount nor interest was paid. Left with no alternative, a suit for recovery was filed.

3. Prem Singh, defendant, put in appearance, and contested the suit of the plaintiff, by way of filing written statement, wherein, it was pleaded that the suit was barred by limitation and that the plaintiff had no cause of action to institute the same. The execution of pronote and receipt was denied. It was also stated that the pronote was without Regular Second Appeal No.499 of 1985 3 consideration. It was further stated that he(defendant) executed one pronote in favour of the plaintiff 10/12 years earlier to the filing of the written statement, and returned the amount to him after making the entry on the back of the said pronote, but the same(pronote) was not returned to him. It was further stated that after removing the revenue stamps, from the said pronote, bearing his signatures, the plaintiff affixed the same on the instant pronote, and, as such, it was forged and fabricated. The remaining averments, contained in the plaint, were denied, being wrong.

4. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the defendant executed pronote dated

09.7.1978 in favour of the plaintiff? OPP 2- If issue No.1 is proved in affirmative, whether the pronote was executed without consideration ?OPD 3- Whether the plaintiff is entitled to interest, if so, its rate and quantum ?OPP 4- Whether the suit is not within time ?OPD 5- Whether the pronote in question is a forged document as alleged in para 14-A of the written statement ?OPD 6- Whether the plaintiff has no cause of action to institute this suit? OPD 7- Relief.” Regular Second Appeal No.499 of 1985 4

5. The parties led evidence in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit, as stated above.

6. Feeling aggrieved, an appeal was preferred by Prem Singh, appellant, which was dismissed by the Court of Additional District Judge, Barnala, vide its judgment and decree dated 05.11.1984, as stated above.

7. Still feeling dis-satisfied, the instant Regular Second Appeal, was filed, by Prem Singh, appellant, who died during the pendency thereof, and his legal representatives were brought on record. 8- Despite due notice that the appeal was fixed for regular hearing, no one put in appearance, on behalf of the respondent, and, ultimately, he was proceeded against ex-parte.

9. I have heard the Counsel for the appellants, and have gone through the evidence and record of the case, carefully.

10. The following substantial question of law, arises, in this appeal, for the determination of this Court:- “Whether the Courts below recorded perverse findings on account of mis-reading and mis- appreciation of evidence that the pronote dated 09.7.1978 was not a forged and fabricated document? Regular Second Appeal No.499 of 1985 5

11. The Counsel for the appellants, submitted that sufficient evidence was led by the appellants to prove that the stamps of some other pronote, which was executed by Prem Singh, defendant (since deceased), in favour of the plaintiff, were removed by him(plaintiff) and he affixed the same on the instant pronote and, thus, fabricated the same. He further submitted that even Dewan J.C. Singla, Handwriting and Finger Print Expert, PW-3, was examined, in this regard, but the Courts below, wrongly discarded his evidence. He further submitted that even the pronote was without consideration. He further submitted that the judgments and decrees of the Courts below, being illegal, were liable to be set aside.

12. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the appellants, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the Regular Second Appeal No.499 of 1985 6 principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention, was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The execution of pronote, Ex.P-1 and receipt Ex.P-2, stood proved from the evidence of Bhura Singh, plaintiff, who appeared in the witness box as PW-1 and Buta Singh, attesting witness of the receipt, Ex.P-2, PW-2. Both of them besides deposing with regard to the execution of pronote and receipt also, asserted that a sum of Rs. 19,000/- was paid to Prem Singh, defendant (since deceased), at the time of execution thereof. No doubt, Buta Singh, PW-2, admitted that he was third degree collateral of the plaintiff yet such remote relationship in itself was not sufficient to disbelieve his statement. Even Dewan K.S. Puri, Handwriting and Finger Print Expert, (PW-3) compared the disputed signatures of Prem Singh, defendant on pronote, Ex.P-1 and receipt Ex.P-2 Regular Second Appeal No.499 of 1985 7 with his specimen signature on sheets S-1 and S-2, given by the defendant, in the Court, and signature S-3 on the summons and formed the opinion that the two sets of signatures were in the handwriting of one and the same person. He denied the suggestion during the course of cross-examination that the disputed signatures on the instant pronote and receipt were forged. The bald statement of the defendant to the effect that he did not execute the pronote and receipt was , thus, hardly of any consequence. The Courts below were, thus, right in holding that a legal and valid pronote was executed by Prem Singh, defendant(now deceased), in favour of Bhura Singh, plaintiff.

13. Mr. J.C. Singla, Handwriting Expert, (DW- 2), during the course of cross-examination, stated that the revenue stamps were not removed from one document, but were removed from different documents and were affixed on pronote Ex.P-1 and receipt Ex.P-2. It was not the pleaded case of the defendant in the written statement that he executed a number of pronotes and other documents, in favour of the plaintiff, wherefrom the revenue stamps were removed, bearing his signatures, and affixed on pronote, Ex.P-1 and receipt Ex.P-2. In these circumstances, the statement of J.C. Regular Second Appeal No.499 of 1985 8 Singla, Handwriting Expert, DW-2,which completely belied by the pleaded case of the defendant, was rightly discarded by the Courts below. The Courts below were right in placing reliance on the statement of Bhura Singh, plaintiff, PW-1, Buta Singh, an attesting witness of the receipt, Ex.P-2, PW-2, and Dewan K.S. Puri, (since deceased)Handwriting Expert of repute, to come to the conclusion that the documents, aforesaid were executed by the defendant, and the stamps were affixed, at the same time, and not after removing the same from some other document. The Courts below were, thus, right in holding that the defendant failed to prove that the pronote, Ex.P-1 and receipt, Ex.P-2, were forged and fabricated documents. The findings of the Courts below, on this point, are liable to be upheld.

14. Now coming to the question of consideration, it may be stated here, that the plaintiff, who appeared in the witness box, as PW-1, and Buta Singh, attesting witness, PW-2, in clear-cut terms, stated that a sum of Rs.19,000/- at the time of execution of pronote, Ex.P-1 and receipt, Ex.P-2, was paid to him(defendant). No worth-while evidence was produced by the defendant, except his bald denial to disprove the consideration. Not only this, once the Regular Second Appeal No.499 of 1985 9 execution of pronote, stood proved, a statutory presumption arose under Section 118(a) of the Negotiable Instruments Act, 1881 (amended up-to-date ) that the same was for valid consideration. No doubt, such a presumption was rebuttable. However no evidence, worth reliance was produced by Prem Singh, defendant, (now deceased) to rebut the same. The Courts below were, thus, right in holding that pronote, Ex.P-1, was for valid consideration.

15. The concurrent findings of fact, recorded by the Courts below, on the aforesaid points, being based on the correct reading and due appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference of this Court, and are liable to be upheld. The substantial question of law, depicted above, is answered against the appellants. The submission of the Counsel for the appellants, being without merit,must fail, and the same stands rejected.

16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs.

07.07.2010 dinesh ( Sham Sunder ) Judge