Regular Second Appeal No. 4308 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4308 of 2008 Date of decision : February 01, 2010 Bikkar Singh ....Appellant versus Jeet Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. DD Bansal, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Bikkar Singh having remained unsuccessful in both the courts below has filed the instant second appeal. Jeet Singh filed suit for recovery of Rs 48,160/- alleging that the defendant-appellant on 5.4.2000 borrowed Rs 28,000/- from the plaintiff and executed pronote and receipt for the same and agreed to repay the same with interest @ 2% per month but the defendant failed to repay the amount. Accordingly, plaintiff claimed Rs 28,000/- as principal amount and Rs 20,160/- as interest thereon @ 2% per month till the filing of the suit. Defendant in his written statement completely denied the plaint allegations and also raised various other pleas. Learned Civil Judge (Junior Division) Bathinda vide judgment Regular Second Appeal No. 4308 of 2008 -2- and decree dated 27.2.2008 decreed the suit of the plaintiff for recovery of Rs 28,000/- with interest thereon @ 12% per annum from the date of pronote i.e. 5.4.2000 till the date of decree of trial court and future interest @ 6% per annum from the date of decree till recovery. First appeal preferred by the defendant has been dismissed by learned District Judge, Bathinda vide judgment and decree dated 6.10.2008. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. The plaintiff in order to prove his case examined Bhura Singh PW1 who is marginal witness of the receipt. He proved execution of pronote and receipt by the defendant and advancement of loan of Rs 28,000/- by the plaintiff to the defendant. Bhagwan Dass PW2 is scribe of the pronote-cum-receipt and he has also supported the plaintiff's version to the aforesaid effect. The plaintiff himself appeared as PW3 and corroborated his own version. On the other hand defendant Bikkar Singh while appearing as DW1 broadly stated his version and denied the plaintiff's version. The defendant also examined one Sindhura Singh DW2 who came out with a new version that the defendant had earlier borrowed Rs 8000/- from the plaintiff and executed pronote and receipt for the same and the defendant repaid the said amount but the plaintiff after assuring to return the pronote and receipt did not return the same and the impugned pronote and receipt have been forged by the plaintiff. The plaintiff's case is consistent and he has examined two witnesses i.e. marginal witness of the receipt and scribe of the pronote and Regular Second Appeal No. 4308 of 2008 -3- receipt who have corroborated the plaintiff's version. On the other hand, defendant examined Sindhura Singh DW2 who not only falsified the defendant's version but also corroborated plaintiff's version. As noticed hereinabove, the defendant took a stand of complete denial only in the written statement and reiterated the same in the witness box. However, Sindhura Singh DW2 stated that defendant had taken loan of Rs 8000/- from the plaintiff and executed pronote and receipt. This statement by defendant's own witness corroborates the plaintiff's version. There is concurrent finding of fact by both the courts below on appreciation of evidence that the defendant had borrowed Rs 28,000/- from the plaintiff and had executed impugned pronote and receipt. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. Learned counsel for the appellant contended that Bhagwan Dass PW2 stated that the pronote and receipt had been signed by the defendant but in fact the impugned pronote and receipt bear thumb impression of the defendant. However, the witness was not confronted with the pronote and receipt to explain the alleged discrepancy nor any such plea was raised before the courts below. On the other hand, it appears that in the examination-in-chief even this witness stated that the defendant had thumb marked the pronote and receipt. Moreover, this contention relates to finding of fact based on appreciation of evidence and therefore, cannot be raised in the instant second appeal. Learned counsel for the appellant next contended that the plaintiff had not paid requisite court fee on the plaint but paid the same later on after expiry of limitation period and therefore, the suit became barred by Regular Second Appeal No. 4308 of 2008 -4- limitation. It was also contended that time to make up the deficiency in court fee can be granted by the trial court after notice to the defendant but the trial court granted time to the plaintiff without notice to the defendant. Reliance in support of this contention has been placed on a judgment of Madras High Court in the case of S.V.Arjunaraja versus P.Vasantha, 2006(1) RCR (Civil), 295 and a judgment of this Court in the case of Krishna Kumar Raj Dev versus Ashwani Kumar, 1997(4) RCR (Civil), 419. I have carefully considered the aforesaid contention but find no merit therein. In the aforesaid judgments, the question was regarding extension of time under section 149 of the Code of Civil Procedure (in short, CPC) for payment of deficit court fee. In the instant case, however, the plaintiff did not seek extension of time for payment of deficit court fee. On the other hand, the plaintiff paid the deficit court fee within the time granted in the first instance by the trial court. Under Order 7 Rule 11(c) CPC where the plaint is written upon insufficiently stamped paper and the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the court fails to do so, the plaint shall be liable to be rejected. Thus, in the first instance, the court has to grant time to the plaintiff to make up the deficiency in court fee and only if the plaintiff fails to do so within the requisite period, plaint is required to be rejected. In the instant case, the trial court granted time to the plaintiff in the first instance as required by Order 7 Rule 11(c) CPC and the plaintiff did the needful within the said period. Consequently, the plaint could not have been rejected on the ground of deficit court fee. For the reasons recorded hereinabove, I find no merit in the Regular Second Appeal No. 4308 of 2008 -5- instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) February 01, 2010 Judge 'tiwana'