Regular Second Appeal No. 1406 of 2011 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No. 1406 of 2011 Date of Decision: 27.9.2011 Sukhmander Singh ... Appellant Versus Jugraj Singh ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Ashish Grover, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) The present regular second appeal has been preferred by the defendant to the suit, filed by the plaintiff, for recovery of ` 2,07,500 on the basis of a pronote Ex.P1 and receipt Ex.P2, which was decreed by the trial Court vide its judgment dated 13.10.2008. Aggrieved against the same, the present appellant filed an appeal in the Court of District Judge, Bathinda, which was entrusted to the Court of Additional District Judge, Bathinda, but the same was also dismissed on 30.10.2010. Hence, the present appeal. Briefly stated, the plaintiff had set out a case that the appellant/defendant Sukhmander Singh had taken an advance of ` 2,00,000 on 9.12.2005 and he had further agreed to pay interest at the rate of 1.50% per month. On that day, he had also executed a pronote and a receipt in token of the receipt of amount. Failure on the part of the defendant to return the amount led the plaintiff to file the suit. Regular Second Appeal No. 1406 of 2011 2 Upon notice, the defendant had caused appearance and raised many preliminary objections regarding limitation, cause of action and maintainability of the suit. He has further pleaded that the pronote and the receipt were forged and fabricated documents. A further plea was raised that a compromise was effected and the amount of pronote was paid back to the plaintiff in the presence of one Sunil Kumar and the plaintiff had returned the original pronote and receipt to the defendant on the understanding that it was the same pronote on the basis whereof the suit has been filed. The returned pronote and receipt, during the course of trial, have been exhibited as Ex.D1 and Ex.D2. After the completion of the pleadings, the trial Court had drawn the issues and the parties to the suit led their evidence. The trial Court decided issues No.1 and 2 together and came to the conclusion that the evidence of PW.2 Kulwant Singh, attesting witness to the pronote and the receipt, lend credence to the testimony of PW.1 Jugraj Singh, plaintiff/respondent. The Court further held that there is a clear recital in the affidavit dated 6.3.2006 Ex.P3 that the defendant would return the amount of pronote Ex.P1 and receipt Ex.P2, as per the decision of the Court. The Court further held that the affidavit Ex.P3 falsified the version as set out by the defendant that the pronote Ex.D1 and receipt Ex.D2 were returned to him on 5.4.2006. The trial Court had two versions before it. One is regarding the payment made by the plaintiff, on the basis of documents pronote Ex.P1 and receipt Ex.P2. Another version, as projected by the defendant/appellant, was that the loan was paid and the documents i.e. pronote Ex.D1 and receipt Ex.D2 were returned. The trial Court appreciated the oral testimony of Regular Second Appeal No. 1406 of 2011 3 the respondent/plaintiff, PW.2 Kulwant Singh, attesting witness, Sukhmander Singh, appellant/defendant, as DW.1 and Sunil Kumar DW.2 and also relied upon the affidavit Ex.P3 to hold that the same made the evidence of the plaintiff reliable. Further, the trial Court has held as under:- “14. So far as the testimony of DW1 Sukhmander Singh is concerned, it is pointed that same is neither reliable nor trustworthy. But for the mere oral testimony of defendant himself and DW2 Sunil Kumar, he failed to adduce any documentary evidence in support of his case. Mere oral evidence is not enough to non-suit the plaintiff. By denying his signatures on the pronote and receipt, the defendant is either trying to be over smart or he is naive. Once the plaintiff has proved the execution of pronote and receipt Ex.P1 and Ex.P2, the onus was shifted to the defendant to prove that he did not avail any loan amount from the plaintiff at the time of execution of pronote and receipt Ex.P1 and Ex.P2 on 9.12.2005. But it is reiterated at the cost of repetition that defendant failed to adduce any cogent and convincing evidence in support of his case...” This finding of fact given by the trial Court has been affirmed by the lower Appellate Court. Mr. Ashish Grover, Advocate, appearing for the Regular Second Appeal No. 1406 of 2011 4 appellant/defendant, has submitted the very fact that the production of documents i.e. pronote Ex.D1 and receipt Ex.D2 is sufficient to infer that the loan was paid back to the respondent/plaintiff. Learned counsel has submitted that version of the appellant/defendant is natural, probable, convincing and ought to have been relied upon by both the Courts below. As stated earlier, there were two versions, one is of the plaintiff and the other is of the defendant, before both the Courts below. They have discussed the evidence at threadbare and had accepted the version of the plaintiff. This Court, in the regular second appeal, cannot set aside the concurrent finding of fact only on the ground that the other version, propounded and canvassed by learned counsel, is better version. Since the view formulated by both the Courts below is not perverse, this Court will not cause interference. To hold, as urged by learned counsel that the version of the defendant is more probable, this Court will have to enter into the realm of appreciation of evidence, which is not permissible in the regular second appeal. There being no question of law, much less a substantial one, for consideration, this Court cannot come to the rescue of the appellant. Hence, there is not merit in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge September 27, 2011 “DK”