R.S.A. No. 2495 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2495 of 2010 (O&M) Date of decision : 9.7.2010 ... M/s. Jagan Nath Parveen Kumar and another ................Appellants vs. Raj Singh .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Arun Bansal, Advocate for the appellants ... K.C. Puri, J. (Oral) This is an appeal directed by defendant- appellant against the judgment dated 28.4.2010 passed by Sh. S.K. Sachdeva, Additional District Judge (Fast Track Court), Bathinda, vide which the appeal preferred by the defendant, now appellant, against the judgment dated 11.8.2009 passed by Sh. Mohit Bansal, Civil Judge (Junior Division), Bathinda, was dismissed. Plaintiff – Raj Singh, filed suit under Order 37 CPC for recovery of Rs.55,000/- i.e. Rs.36,166/- being principal amount and Rs.18,834/- as interest alongwith future interest @ 15% per annum, against the defendant with the allegation that plaintiff is an R.S.A. No. 2495 of 2010 -2- agriculturist and is in cultivating possession of about 6 killas of land at village Aklian Kalan. On 27/28.9.1999, 107 bags each bag containing 65 kgs of paddy were auctioned @ Rs.520/- per quintal, in the presence of Sohan Singh, Bikkar Singh and plaintiff. No payment was made by the defendant to the plaintiff. Defendant noted only 65 bags as auctioned in the record of the Market Committee for which plaintiff protested before defendants in the presence of Sohan Singh and Bikar Singh and even refused to sign the J-Form. The defendant has credited the amount of Rs.21,808.15 P in the account books qua the plaintiff for the year 1999-2000 and wrongly debited in the Bahi writing dated 5.11.1999, as well as, on J-Form dated 4.10.1999 by making fictitious signatures of the plaintiff in connivance with Jiwan Lal s/o Parveen Kumar and showed the payment of Rs.21,808.15 P. No amount was ever paid to the plaintiff. The plaintiff make various complaints to the senior officers, but no action has been taken. A criminal complaint has been filed against the defendant under Sections 406/420/465/467/471/34 IPC. Upon notice, defendant filed written statement admitting that 65 bags of paddy were brought by the plaintiff and were duly sold in auction to Markfed and the amount of the same was duly received by the plaintiff. It is further pleaded that plaintiff signed the books of the answering defendant, as well as, in J-Form. It is denied that 107 bags each containing 65 kgs of paddy were sold. Replication was filed denying the contents of written statement and reiterating the contents of plaint. From the pleadings of the parties, the following issues were R.S.A. No. 2495 of 2010 -3- framed:- 1. Whether the plaintiff is entitled to the recovery as prayed for? OPP 2. Whether the signatures of plaintiff on bahi and J-Form of defendant are forged and fabricated? OPP. 3. Whether the suit of the plaintiff is not maintainable? OPD 4. Whether the suit of the plaintiff is time barred? OPD 5. Relief. Plaintiff, before the trial Court, examined PW-1 Harbax Singh Mander, Forensic Science Expert, Barnala, PW-2 Sohan Singh, PW-3 Bikkar Singh. Raj Singh - plaintiff himself appeared as PW-4 and closed the evidence. In rebuttal, the defendant examined DW-1 Parveen Kumar, DW-2 Inderjit Singh, Hand writing and Finger Print Expert, Patiala, DW-3 Makhan Singh and closed the evidence. Learned trial Court has taken issues no. 1 and 2 together and has returned the finding that plaintiff sold 65 bags of paddy of 65 kgs each @ Rs.520/- per quintal and plaintiff was held entitled to claim Rs.21,808.15 P. It is observed that signatures of plaintiff do not appear on the Bahi of the defendant-appellant and also on J-Form, but it is not proved who has forged his signatures. Issues No. 3 and 4 were decided against the defendant and in favour of the plaintiff. In view of the finding on all the issues, the suit of the plaintiff for recovery of Rs.21,808.15 P. alongwith interest @ 12% from 4.10.1999 i.e. the date of auction till the date of decree was decreed. The plaintiff was also held entitled to claim interest at the rate of 9% from the date of decree till its actual realisation. R.S.A. No. 2495 of 2010 -4- Feeling dissatisfied with the above said judgment, the defendant preferred the Ist appeal. The said appeal was dismissed by the Additional District Judge, (Fast Track Court), Bathinda, vide judgment dated 28.4.2010. Still feeling dissatisfied with the abovesaid judgment dated 28.4.2010 passed by Additional District Judge, (Fast Track Court), Bathinda, and judgment dated 11.8.2009 passed by Sh. Mohit Bansal, Civil Judge (Junior Division), Bathinda, the present regular second appeal has been filed by the defendant-appellant. The appellant in paragraph No. 12 of the grounds of appeal, has mentioned the main law point involved in the present appeal, which reads as under:- i) Whether the learned Courts below can ignore the account books maintained by the appellants in the regular course of business? ii)Whether the learned Courts below can ignore the report of the finger print expert produced by the appellants, especially in the circumstances when both the experts are of the opinion that the signatures do differ in the normal course and there are variations in signatures in the Court file also? iii)Whether the learned Courts below can exceed in its jurisdiction while deciding issue No.2? iv)Whether the learned Courts below can opine and on the presumption to the effect that who has committed alleged forgery, when admittedly there is no issue to this effect? R.S.A. No. 2495 of 2010 -5- v) Whether the respondent is estopped by his own act and conduct to press the present plaint after receiving the amount of 65 bags and is varies his signature to mislead the Hon'ble Courts and which amounts to over reaching the Hon'ble Court? vi)Whether the findings of the learned Courts below are perverse, contrary to law, equity, justice, good conscience and natural justice and are liable to be set aside in view of the facts and circumstances of the present case? Learned counsel for the appellant has submitted that the trial Court has given wrong finding that signatures of plaintiff does not appear in the Accounts book of appellant and on the J-Form, but it is not proved as to who has committed the forgery in respect of signatures of the plaintiff. The Ist Appellate Court has wrongly held that appellant has committed the forgery. A criminal complaint is pending. The matter would be decided in that litigation that who has committed the forgery. However, it is submitted that finding of both the Courts below regarding forgery are wrong. Both the Courts below have misread and misinterpreted the evidence on the file to arrive at the conclusion that signatures of plaintiff does not appear in the Accounts Book of the appellant and on the J-Form. So, prayer has been made for acceptance of the appeal. It is further contended that there was no issue framed by the Courts below that forgery has been committed by the appellant. In the absence of any issue, the Ist Appellate Court could not return finding that forgery has been committed by the appellant. R.S.A. No. 2495 of 2010 -6- The scope of second appeal is limited within the parameters of Section 100 of the Code of Civil Procedure. The High Court can interfere in the second appeal only if a substantial question of law is involved in the second appeal. The only substantial question which could be raised by the appellant is whether both the Courts below have misinterpreted and misread the evidence on the file, while returning the finding on issues No. 1 and 2. The case of the plaintiff is that he has not signed the Bahi and J-Form of the defendant regarding the payment of money to him. It is not disputed that 65 bags each containing 65 kgs of Paddy, were sold by the plaintiff in an open auction and the value of said paddy comes to Rs.21,808.15 P. Both the Courts below have given a concurrent finding that signatures of plaintiff on the Bahi and J-Form does not exist and are forged and fabricated. That being the finding of fact, does not call for any interference in the second appeal. It could not be pointed out by the counsel for the appellant in any manner that both the Courts below have misread and misinterpreted the evidence in respect of issue No.2 that signatures of plaintiff does not exist on the Bahi of the appellant and on J-Form. So, in these circumstances, the concurrent finding of both the Courts below regarding issue No.2 does not call for any interference. However, the argument advanced by counsel for the appellant to the effect that finding of the Ist Appellate Court that appellant has committed the forgery, cannot sustain in the absence of any issue to the effect that appellant has committed the forgery, carries weight. R.S.A. No. 2495 of 2010 -7- The Ist Appellate Court can return the finding confining to the issues only. The trial Court has not framed any issue that forgery has been committed by the appellant. So, the Ist Appellate Court need not to give any finding in this regard, as there was no issue in this regard. So, the finding that appellant has committed the forgery is set aside in the absence of any issue in this regard. The criminal case is pending. That issue is left open to be decided by the Criminal Court, as to who has committed the forgery. In view of the above discussion, all the substantial questions raised by the appellant, except No. iv) stands determined against the appellant. However, law point No. iv) stands determined in favour of the appellant. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 9.7.2010 Judge chugh