Balwant v. Mandrup

Defendant-Balwant, having remained unsuccessful in both the Courts below, is in second appeal. Respondent-plaintiff-Mandrup filed suit against defendant-appellant for recovery of Rs.50000/- alleging that the defendant on 12.01.2004 purchased a buffalo worth Rs.38,700/- from RSA No.4782 of 2010 (O & M) -2- the plaintiff and promised to pay the said amount with interest at the rate of 1 % per month. Defendant executed Bahi entry for the same. However, the defendant did not pay the principal amount or interest. Accordingly, the plaintiff claimed Rs.38,700/- as price of the buffalo and Rs.11,300/- as interest thereon till filing of the suit. The defendant inter alia pleaded that he had in fact purchased two buffaloes from the plaintiff worth Rs.26,000/- and Rs.23,000/- and after about one month, he returned one buffalo valuing Rs.26,000/- to the plaintiff, who gave the same to one Bhim Singh and thus only a sum of Rs.23,000/- was due from the defendant. The alleged Bahi entry for Rs.38,700/- has been got signed from the defendant by fraud and misrepresentation by the plaintiff. The defendant had supplied 16000 bricks worth Rs.25,600/- to the plaintiff and had also supplied a female calf worth Rs.15,000/- to the plaintiff and thus no amount remained due from the defendant to the plaintiff. On the other hand, some amount remained due from the plaintiff to the defendant. Various other pleas were also raised. Learned Civil Judge (Junior Division), Charkhi Dadri vide judgment and decree dated 18.12.2009 decreed the plaintiff's suit for recovery of Rs.38,700/- (principal amount) along with interest thereon at the rate of 6% per annum from due date till recovery. Defendant preferred first appeal against judgment and decree of the trial Court whereas plaintiff preferred cross-objections in the said appeal. Learned Additional District Judge, Bhiwani vide common judgment dated 28.05.2010 dismissed the defendant's appeal as well as the cross-objections preferred by the plaintiff. Feeling aggrieved, RSA No.4782 of 2010 (O & M) -3- defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The defendant in his written statement admitted the Bahi writing in question, but alleged the same to have been obtained by fraud and misrepresentation by the plaintiff. The plaintiff himself stepped into the witness box and stated according to his own version. On the other hand, defendant himself appeared as DW-1 and examined Ram Niwas DW-2 and Manphool DW-3, who broadly stated according to defendant's version. As noticed hereinbefore, defendant in his written statement admitted the Bahi writing in question which depicts that the defendant had purchased a buffalo from the plaintiff for Rs.38,700/-. The defendant alleged the said Bahi writing to be result of alleged fraud and misrepresentation. However, the defendant failed to prove the same. Except pleading that the Bahi was got signed by the plaintiff by playing fraud and misrepresentation, the defendant did not plead any particulars of the alleged fraud and misrepresentation. On the other hand, defendant alleged to have purchased two buffaloes out of which he allegedly returned one buffalo. However, there is no writing regarding return of one buffalo by the defendant to the plaintiff. If at the time of taking buffaloes, the defendant had executed the Bahi writing, the defendant would not have returned the buffalo without getting back the said Bahi writing or without getting some other writing regarding return of the buffalo. The defendant in the witness box could not even tell month or year of taking back of RSA No.4782 of 2010 (O & M) -4- one buffalo by the plaintiff and handing over the same to one Bhim Singh. Bhim Singh has also not been examined as witness in support of this version of the defendant. The defendant also alleged that he had supplied 16000 bricks worth Rs.25600/- to the plaintiff. However, the defendant could not tell the date, month or year of supplying the said bricks nor any receipt or other writing was executed in this behalf. Similar is the position of giving of a buffalo calf by the defendant to the plaintiff. The defendant could not tell the date, month or year of the said transaction nor there is any writing in this regard. On the contrary, according to defendant's evidence, the transactions of bricks and calf took place even long before the defendant had purchased the buffaloes from the plaintiff. However, the defendant in the written statement did not even plead that he had supplied the said bricks and calf even before purchasing buffaloes from the plaintiff. Faced with the aforesaid situation, learned counsel for the appellant vehemently contended that in fact Bahi writing was made for Rs.8,700/- and by fraud and misrepresentation, digit '3' was added to make it Rs.38,700/-. The contention has been noticed simply to be rejected because there is not even a pleading to this effect in the written statement nor there is even an iota of material on record to substantiate the same. Moreover, it is not explained as to how the amount of Rs.8,700/- would have been due from the defendant to the plaintiff. According to defendant's version, he had purchased two buffaloes worth Rs.49000/- from the plaintiff. The defendant allegedly supplied bricks worth Rs.25,600/- and calf worth RSA No.4782 of 2010 (O & M) -5- Rs.15000/- i.e total amount of Rs.40,600/-, leaving behind balance of Rs.8,400/-, but according to contention of counsel for defendant, the Bahi entry was for Rs.8,700/-. Thus the contention does not match the figure. Even otherwise, it was not pleaded by the defendant even remotely that he had supplied bricks and calf to the plaintiff long before purchasing the buffaloes from him or that amount of Rs.8,400/- or Rs.8,700/- only remained due from the defendant to the plaintiff. In addition to the aforesaid, if the defendant had supplied bricks and calf and had also returned one buffalo to the plaintiff, it is not explained as to why the defendant never took any step for recovering his over due amount from the plaintiff. Even in the instant written statement, the defendant did not make any counter-claim for his said over due amount. Learned counsel for the appellant also contended that onus of issue No.1 has been wrongly placed on the defendant- appellant. The contention cannot be accepted because the defendant himself pleaded that he had paid the due amount of the plaintiff in kind and, therefore, onus of the issue was rightly placed on the defendant to prove the same. Both the Courts below have properly appreciated the evidence and come to concurrent finding in favour of the plaintiff- respondent. The said finding is fully justified by the evidence on record and is supported by the cogent reasons. The defendant's pleading and evidence are completely contradictory and unreliable and have been rightly discarded by the Courts below. The finding of the Courts below does not warrant interference in second appeal as RSA No.4782 of 2010 (O & M) -6- the said finding is not shown to be perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be without any merit and is accordingly dismissed in limine.

13.12.2010. A. Kaundal ( L. N. MITTAL ) JUDGE