High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 9 9 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 229 RSA-5187-2014 (O&M) Date of decision: 15.01.2025 ...Appellant(s) ...Respondent(s) Harvinder Sing Singh @ Soni Gurpreet Sing Singh Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. R.K. Arya, Advocate for the appellant. Mr. Dheeraj Mahajan, Advo for the respondent. Advocate NIDHI GUPTA, PTA, J. *** The plaintiff is in second ap nst d appeal before this Court against the judgment ent and decree dated 09.04.20 ed 4.2014 passed by the learned Additional Dis l District Judge (F.T.C.) Gurdaspur ed reversing the judgment dated 14.09.2011 1 passed by learned Civil Judge ur dge (Junior Division), Gurdaspur whereby the s the suit filed by the plaintiff/appell – pellant for recovery of ₹85,000/– along with int interest at the rate of 9% per annu uit annum from the date of filing suit till its realisa alisation with consequential relie ry relief of decree of mandatory injunction, dir , directing the defendant to return t
Legal Reasoning
to urn the passport of the plaintiff to him, was decr decreed with costs. Vide judgement 11, ent and decree dated 14.9.2011, the learned Ci d Civil Judge held the plaintiff entit of entitled to recover the amount of ₹85,000/– wit with interest at the rate of 9% per of per annum from date of filing of suit till its re s realisation; and further manda he ndate was issued, directing the SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) defendant to r to return the passport of the plaint Page 2 of 9 9 (cid:1) ths laintiff to him within three months from the date ate of the judgement. 2. The parties shall hereinaft eir inafter be referred to as per their status before fore the learned trial Court i.e. be e. The appellant herein shall be referred to as as the plaintiff; and the responden dent as defendant. 3. The case of the plaintiff a at iff as set out in the plaint is that the appellant/ lant/plaintiff is an unemployed you is young man, whereas his father is having landed ded property in the village and his b op. his brother is also running a shop. The sister of t of the defendant is married in the re the village of plaintiff; therefore they are know nown to each other. The defendan nt, dant is working as a travel agent, therefore in th in the month of November, plaintiff gh intiff and his brother Malkiat Singh requested the the defendant with request to pro nt provide him job. The defendant demanded Rs Rs. 85,000/- to arrange visa for he for Dubai for plaintiff and in the month of Dec December 2007, plaintiff and his of his brother visited the house of defendant at t at village Virk and paid Rs. 85,000 he ,000/- along with passport to the defendant. De t. Despite taking payment, neither isa ther the defendant arranged visa for the plainti aintiff nor he returned back the mo he money to the plaintiff. Thus, the filed plaintiff filed instant suit for recovery o he ry of Rs. 85,000/- against the defendant. 4. Upon notice, the defendan nd ndant had put in appearance and filed written ten statement denying the averm No erments made in the plaint. No replication wa was filed by the plaintiff. On the he the basis of the pleadings of the parties, follow llowing issues were framed: - SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) “1. Whether the plaintiff is en Page 3 of 9 9 (cid:1) ees s entitled to recovery of rupees 85,000/- along with interest @ ed st @ 9% per annum as prayed for?OPP fo 2. Whether the plaintiff is entit ion entitled to mandatory injunction directing the defendant to return to turn the passport of the plaintiff to him ? OPP 3. Whether the suit is not mainta ? aintainable in the present form ? OPD (v) Relief.” 5. On the basis of oral a al and documentary evidence adduced by th y the parties, the suit of the plainti aintiff was decreed with costs by the learned Ci d Civil Judge, and he was held entit ntitled to recover the amount of Rs.85,000/- wi with interest @ 9% per annum fro from the filing of the suit till its realisation; an ; and further mandate was issued sued directing the defendant to return the pas passport of the plaintiff to him w within three months from the date of the j he judgment. In appeal filed by t by the defendant, the learned Additional Dis l District Judge, (FTC), Gurdaspur ur vide impugned judgment and decree dated ted 09.04.2014 set aside the decr decree dated 14.09.2011 of the learned trial C ial Court and dismissed the suit of th of the plaintiff with costs. 6.
Legal Reasoning
Learned counsel for the ap e appellant-plaintiff submits that a bare perusa rusal of the facts as set out in in the plaint, shows that the defendant ha had played fraud upon the app appellant and cheated him of Rs.85,000/- on on the pretext of arranging of vi of visa for Dubai but neither he arranged visa visa nor he returned the said am amount of Rs.85,000/- to the appellant desp despite repeated requests. It is su is submitted that therefore, the SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) suit of the app appellant was rightly decreed by th by the learned Civil Judge (Junior Page 4 of 9 9 (cid:1) Division), Gurd Gurdaspur vide judgment and dec decree dated 14.09.2011 which deserves to be o be restored. It is submitted that th at the learned Additional District Judge has com committed grave error while sett setting aside the well-reasoned judgment of of the learned trial Court on the e basis of conjectures and non- appreciation on of material evidence, thus, the i
Decision
the impugned judgment is liable to be set asi aside. It is submitted that the p e perusal of the testimony of appellant/plai plaintiff as well as the PWs exam examined by the plaintiff itself shows that t at the defendant has played frau fraud and cheated amount of Rs.85,000/- from the plaintiff. But the ld e ld. Appellate court without considering m material evidence available on th n the record set aside the well reasoned judg judgment and decree dated 14.09. .09.2011 passed by the ld. Civil Judge (Jr. Divn Divn) Gurdaspur. 7. On the other hand, learne arned counsel for the defendant submits that t at the judgment dated 14.09.2011 011 of the learned trial Court is based on con conjectures. It is submitted that t at the suit of the plaintiff was decreed only nly because discrepant statements o nts of the prosecution witnesses were misread read by the learned trial Court. It t. It is submitted that valuable evidence on on record was misconstrued and/ and/or ignored by the ld. Civil Judge. It is acc accordingly prayed that the presen sent appeal be dismissed. 8. 9. No other argument is raise aised on behalf of the appellant. I have heard learned cou counsel for the appellant and perused the ca e case file in great detail. SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) 10. I find merit in the submiss missions advanced on behalf of Page 5 of 9 9 (cid:1) the defendan dant. Perusal of the record shows ows that the judgment of the learned trial rial Court is indeed based on c n conjectures and far-fetched surmises; and and the suit of the plaintiff was dec decreed, despite the fact that it had been irrev irrevocably established on record th rd that the plaintiff had failed to prove that the t the defendant was doing the bu business of travel agent or he ever sent anyo anyone abroad. Admittedly, no evid evidence was led by the plaintiff to prove that that the defendant was doing the the business of travel agent or sending peopl eople abroad. Even there is no doc documentary evidence to show that the defen efendant was doing the business ess of travel agent or providing visas for goi going abroad. There are no c o company/agency documents produced by by the plaintiff to prove his case. ase. Merely bald statement has been made in e in the plaint and during oral evide evidence that the defendant was doing the bu business of travel agency; whic hich was duly denied by the defendant in h in his written statement. Even no no replication was filed by the plaintiff contro ntroverting the assertions made by e by the defendant in his written statement. In In this regard, there is no other ca r case of such nature against the defendant. 11. Further admittedly there is re is nothing stated in the plaint or anything on g on record to indicate in what man manner the plaintiff had handed over Rs.85,000 ,000/- to the defendant - whether ther payment was made in cash or by cheque que or by any other mode. Admitt mittedly no documents to show any transactio ction have been brought on record cord by the plaintiff. Thus, there SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) Page 6 of 9 9 (cid:1) is nothing me mentioned in the plaint as to in in what manner payment was made to the d he defendant. 12. Moreover, there is nothin thing on record to show as to how the plai plaintiff arranged/procured the a he amount of ₹85,000/–. The learned trial C ial Court came to the conclusion ion that the plaintiff had made payment of Rs Rs.85,000/- to the defendant mer merely on the basis of testimony of PW2/Mukh ukhtar Singh who admitted in his n his cross-examination that he gave Rs.85,00 ,000/- to the plaintiff. Howeve ever, the learned trial Court overlooked th d the fact that even PW3/Malkiat Si at Singh in his cross-examination had stated tha that Rs.85,000/- was given to the the plaintiff by his father Ravail e Singh. The learned trial court failed to l to reconcile the above said contradictory ory testimonies. Even further, the le e learned trial court ignored the fact that the the plaintiff in his cross-examinatio ation as PW1 admitted that he had borrowed wed money from ‘someone’, howev owever, was unable to elaborate thereupon. Th Thus, it could not be clear on re n record as to how the plaintiff arranged the the amount of ₹85,000/–. Even no n no criminal proceedings were initiated by th dant. y the plaintiff against the defendant 13. It had further been alleged eged by the plaintiff that he had handed over ver his passport to the respondent dent. However, there is nothing whatsoever on er on record to remotely indicate th te that: a) the plaintiff even ever possessed a p a passport; b) no passport numbe mber is mentioned anywhere in the entire proc proceedings; and c) admittedly no F no FIR was lodged regarding loss of passport. rt. In this scenario, the mandate date of the learned trial Court SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) directing the the defendant to return the passp assport of the plaintiff to him within three m ee months was clearly unsustainab inable. In this regard, findings of Page 7 of 9 9 (cid:1) the learned lo d lower Appellate Court are releva levant as contained in Paras 11 and 12 of the the judgment dated 09.04.2014, wh , which are as under:- “11. Perusal of pleadings and evid d evidence available in the lower court file patently suggest that j hat judgment and decree under challenge have been passed by by the Learned court without proper appreciation of evid evidence on record. Cross- examinations of witnesses have ave not been given any weight. The entire thrust of plaintiff versi version is around delivery of Rs. 85,000/- and passport by him to m to defendant. Plaintiff claims that he is knowing defendant sinc t since latter's sister is married in intiff village Narpur where plaintiff is residing. The cross- examination of PW-1 shows no su no such iota of evidence. During this cross-examination defenda endant was asked about the matrimonial place of his aunt and t and not of his sister. The basis which might had brought plaintiff intiff and defendant before each other is missing in the evidence o ce on record. Plaintiff has failed to show if any sister of defendan ndant resides in village Narpur. Plaintiff also claims that defend fendant was a travel agent. In cross-examination as PW-1 plain plaintiff has failed to state the name of the shop and agency fo cy for which allegedly defendant was working as an agent. Thi . This concise but terse cross- examination reveals that there ere is no -evidence as to from where he allegedly had arrang ranged Rs. 85,000/-. Plaintiff is silent regarding the source from rom where he had arranged Rs. 85,000/-. He also nowhere dep depicted the name of PW-2 Mukhtiar Singh from who whom allegedly he had arranged/borrowed any amount ount or if this PW-2 ever had accompanied plaintiff and PW-3 t 3 to the house of defendant. SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) Page 8 of 9 9 (cid:1) 12. Another bewildering developm elopment available in the version of PWs is that none of them is a is aware as to from where Rs. 85,000/- were arranged by the pl he plaintiff. At the outset it must be observed that a person who a ho arranged such amount from anybody must had disclosed the the name of such lender when was asked in cross-examination. tion. However, when asked, he gave vague reply that he had a ad arranged this amount from "somebody". Had such lending ing been there in presence of plaintiff, he would not have ad e addressed such lender as " somebody". Such cross-examinat ination of PW-1 infers that he had no knowledge about the n he name of such lender which brings out that no such borrowing wing ever had taken place. PW- 2 Mukhtiar Singh presented a n a new picture while stating in cross-examination that he had le ad lent Rs. 85,000/- to plaintiff for the purpose. This witness state fo stated that he had collected this amount after withdrawing from rom the bank. No such evidence came on record. It is relevant to nt to mention here that PW-2 is nowhere named in plaint. The cr he cross-examination of PW-3 is again at variance to that of rem f remaining PWs. He presented another version by claiming tha that entire Rs. 85,000/- were paid to plaintiff by his father Rav Ravail Singh. This version is not owned by plaintiff. These all cir ll circumstances left no reasons with the lower court to believ elieve that Rs. 85,000/- were arranged by the plaintiff and t nd then were paid by him to defendant. Then there is no proof proof on file if plaintiff had been holding any passport. No passp passport number nor name of issuing office is part of the reco record. Mere claiming he was possessing a passport and had g ad given it to defendant cannot be taken as proved by default of m lt of mere non-cross-examination of PW-1, about delivery of passpo ssport, on the part of defendant. SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1) Page 9 of 9 9 (cid:1) Perusal of cross-examination of D of DW-1 reveals that the answer regarding U.K visa pertains to h to his own visa application and not about any visa application ion regarding plaintiff. Learned Trial court misread this part of e t of evidence thereby ultimately basing its opinion on such piece iece of evidence in para no. 8 of the judgment.” 14. Learned counsel for the ap e appellant/plaintiff is unable to dispute or co r controvert the above said evide vidence/findings of the ld. First Appellate Cou Court orgive any satisfactory explan planation for the same. 15. 16. In view of the above, prese resent appeal is dismissed. Pending application(s) if an if any also stand(s) disposed of. 15.01.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.01.24 16:54 I attest to the accuracy and integrity of this document (cid:1)