Hakam Singh v. M/s Des Raj Dharam Pal & Ors.

CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Amit Jain, Advocate for the Appellant. A.N.JINDAL, J.- It is plaintiff's Second Appeal against the judgment and decree dated 25.10.2008 passed by Additional District Judge, Patiala, whereby, she dismissed the appeal against the judgment and decree dated

5.9.2006 passed by Civil Judge (Senior Division), Patiala dismissing the suit of the appellant (herein referred as the plaintiff). According to the plaintiff, he is an agriculturist, whereas, the defendants – respondents (herein referred as `the defendants') are Commission Agents through whom the plaintiff has been selling his agricultural produce for the last 18 years. He has alleged that during the dealing with the defendants, the latter used to obtain his signatures on the blank plain papers and stamp papers as well as blank promissory notes. Two years back, when he stopped to sell his agricultural produce through them, then the defendants felt annoyed and in order to take Regular Second Appeal No.959 of 2009 [ 2 ] revenge, they forged blank signed papers into agreement dated 10.5.1996 and 5.11.1997, and consequently issued a legal notice dated 15.3.1999. On the request of the plaintiff to furnish the copy of the agreements, the defendants did not respond. Thus, he has challenged the alleged agreements, being forged and fabricated documents, and also sought mandatory injunction directing the defendants to return the thumb- marked documents or in the alternative to treat the said documents as cancelled. The written statement was filed, wherein, besides some legal pleas, it was submitted that vide agreement dated 5.11.1997, the plaintiff had agreed to sell his land after taking a sum of Rs.5,00,000/- as earnest money. Similarly, as regards the agreement dated 10.5.1996, it was alleged that the plaintiff after receiving a sum of Rs.1,50,000/- had agreed to sell his land to M/s Des Raj Dharam Pal (defendant No.1). It was further averred that since both the suits are pending adjudication, therefore, the suit may be dismissed. On the pleadings of the parties, the Trial Court framed the following issues:-

Whether the plaintiff is entitled to declaration as prayed for? OPP

Whether the plaintiff is entitled to permanent injunction as prayed for? OPP

Whether the suit is not maintainable? OPD

Whether the suit is hit by principle of Order II Rule 2 CPC? OPD Regular Second Appeal No.959 of 2009 [ 3 ]

Relief. Both the parties led evidence and ultimately the suit was dismissed. The appeal also failed. Having heard the counsel for the appellant at length, it transpires that though the plaintiff has taken a specific plea that the agreements dated 10.5.1996 and 5.11.1997 are fabricated documents, yet in order to prove the forgery and fabrication, he has led positive evidence to prove that these documents do not bear his signatures; he had not purchased the stamp papers; it was not attested by the witnesses and that the documents were not for consideration. However, no such evidence was led by him, which may prove the forgery. The solitary statement of the plaintiff is hardly sufficient to record a finding in his favour. Both the courts below have returned a concurrent of fact that the plaintiff had failed to prove that the documents are fabricated one. Except the statement of the plaintiff, the other evidence in the shape of statements of Daljit Singh Tung, Advocate (Ex.P1), Harcharan Singh (Ex.P2) and Dr.Inderjit Singh, Handwriting Expert (Ex.P3) are not admissible in evidence for the reason that the deponent of these documents were to be presented in the Court for cross-examination, so that their testimonies could be contested by the defendants. Similarly, the affidavit of Hem Raj (Ex.P7), produced in other case titled “Des Raj vs. Hakam Singh” also cannot be read in evidence as this witness was neither examined, nor tendered for cross-examination by the plaintiff. As such, the Trial Court as well as the First Appellate Court have rightly Regular Second Appeal No.959 of 2009 [ 4 ] returned a finding of fact that the plaintiff has failed to prove if there was any forgery regarding the aforesaid documents. Now, in the second appeal, one view taken by the courts below cannot be disturbed unless it is shown that the evidence was not properly appreciated and the impugned judgment suffers from any perversity or arbitrariness, which is not the position in the present case. Thus, no interference with the concurrent findings of fact recorded by the courts below is permissible. No substantial question of law arises or is involved in the present appeal. Resultantly, finding no merit in the appeal, the same is hereby dismissed. May 29, 2009 `gian' ( A.N.JINDAL ) JUDGE