R.S.A. No. 564 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 564 of 2010 (O&M) Date of decision: 08.02.2010 Joga Singh ....Appellant Versus Amarjit Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Parveen K. Kataria, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) CM No. 1569-C of 2010 For the reasons stated in the application, CM is allowed and the delay of six days in refiling the appeal is condoned. RSA No. 564 of 2010 This regular second appeal is directed, against the judgment and decree dated 13.06.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent, for recovery on the basis of pronote and receipt, stands decreed. The plaintiff/respondent filed a suit for recovery on the pleadings, that the plaintiff/respondent had advanced a sum of Rs.4,00,000/- (Rupees four lac only) to the appellant, as a friendly loan for construction of his house, which was repayable with 1% interest per month. The defendant/appellant failed to re-pay the amount despite demand. The suit was contested by the defendant/appellant, by taking a R.S.A. No. 564 of 2010 (O&M) -2- plea, that no loan was advanced to the defendant/appellant, and that the pronote and receipt were forged. The appellant also placed reliance on the compromise Ex. D1, to plead that no amount was due or payable to the plaintiff/respondent. The learned Courts below, on appreciation of evidence, recorded a concurrent finding of fact that the plaintiff/respondent advanced a loan of Rs.4,00,000/- (Rupees four lac only) against the pronote and receipt. The execution of these documents was duly proved. Ex. D1, on which strong reliance was placed by the defendant/appellant was held to be of no value, as it was executed in the police station and witnessed by SHO. DW3 produced by the defendant/appellant admitted in the cross-examination, that it was agreed at the time of execution of Ex. D1 that the plaintiff/respondent could recover the amount, by due process of law and not forcible. In view of the concurrent findings recorded, the suit was decreed for recovery. Mr. Parveen K. Kataria, learned counsel, appearing on behalf of the appellant contends that the appeal raises the following substantial question of law: - “Whether the failure of the plaintiff/respondent to cross- examine the witnesses of the defendant/appellant on material questions, is to be taken to be admission of the case of defendant and adverse inference was to be drawn against the plaintiff/respondent?” In support of the substantial question of law, the learned counsel for the appellant contended, that the plea of the R.S.A. No. 564 of 2010 (O&M) -3- defendant/appellant that the pronote and receipt, was forged and fabricated was not challenged in the cross-examination. It is the contention of the learned counsel for the appellant that the findings, therefore, are perverse and liable to be set aside, by drawing an adverse inference against the plaintiff/respondent. On consideration, I find no force in this contention. The contention deserves to be rejected on more than one grounds. Firstly, for the reason that no such plea was raised before the learned lower appellate Court and it is not open to the appellant to raise a plea not raised before the learned first appellate Court, for the first time in regular second appeal. Secondly, that there is no force in the contention raised for the reason, that the pronote and receipt stood duly proved. It was for the defendant/appellant to produce cogent evidence to prove the pronote and receipt to be forged and fabricated. Mere oral assertions in the examination-in-chief by way of affidavit, could not substitute the evidence required to be prove an issue the onus of which was on the defendant/appellant, specially when the plea raised was, that in terms of Ex. D1, no amount was payable. This plea was found to be wrong. The substantial question of law raised, therefore, do not arise for consideration in this appeal, or in any case, deserved to be answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) February 08, 2010 Judge R.S.