R.S.A. No.1516 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1516 of 2006 Date of Decision:27.11.2008 Bhagwan Dass .....Appellant Vs. Surender Kumar .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Manmohan, Advocate for the appellant. Mr. Ashok Khichi, Advocate for the respondent. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 25.2.2004 passed by the Court of learned Additional District Judge, Narnaul whereby he dismissed the appeal preferred against the judgment/ decree dated 16.5.2002 rendered by the Court of learned Civil Judge (Junior Division), Mohindergarh whereby he decreed the suit for the recovery of Rs.38,500/- along-with interest at the rate of 1.5% per month from the filing of the suit till its realisation. The facts which form the backdrop of the suit are that on 6.7.1994 Bhagwan Dass borrowed a sum of Rs.25,000/- from the plaintiff for household expenses carrying interest at the rate of 18% per month. In consideration thereof, he executed the pronote and receipt of even date with the promise to repay the aforesaid amount together with interest on demand. R.S.A. No.1516 of 2006 -2- The plaintiff produced the promissory note before the defendant and demanded the amount along with interest, but he refused to pay the same. The plaintiff served a legal notice calling upon the defendant to repay the aforesaid amount as well as interest due thereon, but in vain. On these allegations, the suit was filed for the recovery of Rs.38,500/- comprising principal amount Rs.25,000/- and interest Rs.13,500/-. In his amended written statement, the defendant inter-alia pleaded that he had borrowed a sum of Rs.5,000/- from the plaintiff who converted the figure of Rs.5,000/- into Rs.25,000/- by adding digit 2 before digit 5 and similarly prefixing the digit 1 before the digit 2. He alleged that if there exists any pronote and receipt, these are forged documents and he is not bound to pay any amount on their basis. Lastly, it has been prayed that the suit may be dismissed. The following issues were framed:- 1. Whether the defendant has borrowed Rs.25,000/- from plaintiff on 6.7.1994 as alleged? OPP 2. Whether pronote and receipt were scribed on 6.7.1994 as alleged? OPP 3. If issues No.1 and 2 are proved, whether plaintiff is entitled to recover Rs.38500/- from the defendant? OPP 4. Whether plaintiff is entitled to interest, if so, at what rate? OPP 5. Whether the plaintiff has no locus standi to file the suit? OPD 6. Whether the suit is not maintainable in the present form? R.S.A. No.1516 of 2006 -3- OPD 7. Whether the suit is time barred? OPD 8. Whether the plaint is not properly signed and verified, if so, its effect? OPD 9. Whether the defendant is entitled to special costs under Section 35A, CPC? OPD 10. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial Court decreed the suit as noticed earlier. Feeling aggrieved therewith, the defendant preferred an appeal, which was dismissed as noted supra. Being undaunted and dissatisfied therewith, the defendant has preferred this appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. Manmohan, Advocate representing the appellant urged with great eloquence that indeed the appellant had borrowed a sum of Rs.5,000/- but the plaintiff by prefixing the digit 2 before the digit 5 converted the amount into Rs.25,000/- and similarly, he added the digit 1 before 2 in the disputed pronote. Thus, the findings returned by both the Courts below are liable to be reversed. To controvert this submission, Mr. Ashok Khichi, Advocate appearing on behalf of the respondent- plaintiff argued that there is voluminous evidence on the record to prove that as a matter of fact, the defendant had borrowed a sum of Rs.25,000/- and not Rs.5,000/- and thus, R.S.A. No.1516 of 2006 -4- the findings returned by both the Courts below call for no interference. This contention merits acceptance. The plaintiff in addition to his own statement has examined PW3 Subh Ram, the attesting witness of the disputed pronote Ex.P1 and receipt Ex.P2. He has solemnly affirmed that a sum of Rs.25,000/- was given in his presence by the plaintiff to the defendant, who had agreed to repay the same together with interest at the rate of 1.5% per month. In identical terms is the statement of the plaintiff himself as PW2. Somnath Aggarwal- PW1 Handwriting and Finger Print Expert has opined that the disputed signatures on the pronote and receipt in question are found to be of the defendant after comparison with the standard signatures. His report is Ex.PW1/A. The photographic enlargements are Ex.PW1/1 to Ex.PW1/4 and their negatives are Ex.PW1/5 to Ex.PW1/7. On the other hand, the defendant has merely examined DW1 Satyanarain as well as DW2 Ram Singh in support of the plea that indeed a sum of Rs.5,000/- was borrowed by him from the plaintiff. These witnesses being not in attendance at the time of execution of the disputed pronote and receipt, their statements carry no evidentiary value. If the digits were added in the alleged manner, in that, the aforesaid expert would have certainly been cross-examined on this aspect of the matter. The defendant- appellant did not have the courage to examine any counter- expert. Thus to say the least of it, when the positive as well as opinion evidence adduced by the plaintiff- respondent is pitched against the evidence let in by the defendant- appellant, it transpires that the former outweighs the latter. In civil matters, the Court has to go by preponderance of probabilities. Thus, to my mind, the findings returned by both the Courts below cannot be faulted with in any manner. R.S.A. No.1516 of 2006 -5- This apart, no substantial question of law arises for determination by this Court. As a sequel of the above discussion, this appeal fails and is dismissed. November 27, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No