Regular Second Appeal No. 3941 of 2010 (O&M) 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 3941 of 2010 (O&M) Date of Decision: 24.8.2011 Durga Dass …Appellant Versus Satpal and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Vineet Chaudhary, Advocate for the appellant. Kanwaljit Singh Ahluwalia, J. (Oral) Civil Misc. No. 9332-C of 2011 For the reasons stated in the application, the same is allowed. Order dated 2.8.2011, passed by this Court, whereby the appeal was dismissed in default, is recalled and the appeal is restored at its original number. The appeal is taken up on the board for hearing. Regular Second Appeal No. 3941 of 2010 The plaintiff, having lost in two rounds of litigation, has approached this Court by filing the present regular second appeal. The appellant/plaintiff had instituted a suit calling upon the defendants to render the true and legal accounts and after the settlement of accounts, to pay the balance amount along with interest at the rate of 18% per annum. Regular Second Appeal No. 3941 of 2010 (O&M) 2 The appellant/plaintiff had set up a case that he was selling the agricultural produce at the shop of defendant No.2, who is running a business of Commission Agent at village Keorak under the name and style of M/s Jai Ram Dass Sat Pal. It was further stated that defendant No.1 was the sole proprietor of firm-defendant No.2. The livelihood of the plaintiff is solely dependent upon agriculture. He had sold Rabi crops to the defendants at village Keorak, whereas Kharif crops were sold to the Agency of defendants at Kaithal at the shop of defendant No.3. A grievance was made in the suit that the plaintiff was an illiterate person and defendant No.1, being a clever and cunning person, had obtained signatures of the plaintiff on blank papers, blank bahies and pronotes. It was further stated that since the plaintiff was selling his agricultural produce with the defendants' firms, no amount was paid to him and the defendants had not settled the accounts with the plaintiff of the Rabi and Kharif crops from the year 1999 to Rabi 2001. The plaintiff was not paid anything except the labour and carriage expenses. It was stated that the defendants had not issued J-Forms but had only given kachha parchies. It was further case of the plaintiff that he had purchased a tractor in the year 2000 bearing registration No. HR-08-C-6183 of Swaraj make after obtaining a loan from the bank and it was taken away by defendant No.1 in good faith. Lateron, the said tractor was sold by defendant No.1 taking undue advantage of the illiteracy of the plaintiff by preparing forged and fabricated documents. It was further stated that a Panchayat was convened on 4.3.2003 wherein it was found that the defendants had committed a fraud and cheated the plaintiff. It was urged that the defendants were under legal obligation to render true Regular Second Appeal No. 3941 of 2010 (O&M) 3 and legal accounts and to pay the balance amount along with interest to the plaintiff. Upon notice, defendants No.1 and 2 had caused appearance and had filed written statement wherein it was stated that the plaintiff had to pay a sum of ` 65,852 at the time of settling of accounts on 1.4.2002, which was acknowledged by the plaintiff and he had executed a pronote and receipt in favour of defendants No.1 and 2. It was denied that the defendants had obtained signatures/thumb impression of the plaintiff on any blank papers, blank bahies or pronote. It was further stated that the entire sale proceeds were duly received by the plaintiff till 31.3.2002. Details of the amounts received by the plaintiff were given in the written statement. The trial Court, after completion of the pleadings, had drawn the following issues:- “i) Whether certain accounts are to be settled between the parties to the suit, if so, to what extent? OPP ii) Whether after the settlement of the accounts, the plaintiff is entitled to recover the balance amount along with interest @ 18% per annum, as alleged? OPP iii) Whether the suit is false and frivolous and is liable to be dismissed with special costs? OPD iv) Whether the suit is bad for non-joinder of necessary parties and mis joinder of Regular Second Appeal No. 3941 of 2010 (O&M) 4 parties? OPD v) Relief”. The parties to the suit led their evidence. The trial Court had discarded the assertion of the plaintiff that he had signed on blank papers on the ground that in normal course of events, no person would sign or put thumb impression on blank documents unless he had taken some money from other person. The Court further held that the plaintiff had admitted in his cross-examination, while appearing as PW.6, that he had taken some money from the defendants. The Court, while ignoring testimony of the plaintiff, had relied upon the fact that during his cross- examination the plaintiff had refused to divulge the exact or approximate amount taken by him from the defendants. The Court held that deposition in the Court by the plaintiff is contrary to the pleadings and hence had discarded his testimony. The Court further held that kachha parchies have not been duly proved. It will be apposite here to reproduce the following findings returned by the trial Court. “17...The plaintiff has not proved on record that the said kachi parchis or the J-Forms, Ex.PW.5/1 to Ex.PW.5/12, had been scribed by defendant No.1. The plaintiff has also failed to prove that the alleged J-Forms, placed on record as Ex.PW.5/2, Ex.PW.5/5 and Ex.PW.5/9, had been issued by the competent authority of the defendants' firms against specified serial numbers...” The Court further held that there was no relationship of principal and agent between the plaintiff and the defendants and in the Regular Second Appeal No. 3941 of 2010 (O&M) 5 written statement, the defendants had reflected the amounts received by the plaintiff. Thus, in view of the above findings, suit of the plaintiff was dismissed. The lower Appellate Court, concurred with the findings returned by the trial Court. Mr. Vineet Chaudhary, Advocate, appearing for the appellant/plaintiff, has submitted that both the Courts below had taken into account the admission made by the defendants that the plaintiff was selling his agricultural produce at the shop of the defendants. Learned counsel has further submitted that a convenient route was adopted by the defendants not to produce the account books by saying that the same were misplaced. He has further submitted that the DDR, lodged by the defendants in this regard, was not proved on the record and it was only a marked document. With the assistance rendered by Mr. Chaudhary, I have perused the judgments of both the Courts below. Both the Courts below had two sets of evidence before them, one was of the plaintiff and other was of the defendants. They have discarded the testimony of plaintiff holding that the same is not reliable on the ground that the admissions made by the plaintiff are contrary to the case pleaded in the suit. In the suit, the plaintiff had stated that no amount was received by him but in his cross-examination, he stated that the defendants had paid some amounts but he failed to divulge their details. That being so, both the Courts below appreciated the evidence and had formulated an opinion. This Court, in the regular second appeal, shall not tread on the path of re-appreciation and do re-appraisal of the evidence simply because of the reason that the view formulated by both the Courts below Regular Second Appeal No. 3941 of 2010 (O&M) 6 is the one which was possible on the appreciation of the evidence. What Mr. Chaudhary had canvassed is another view. What is in the realm of appreciation of evidence cannot be construed as a substantial question of law, especially when the concurrent findings of fact returned by both the Courts below suffer from no infirmity. Thus, in the regular second appeal, this Court cannot come to the rescue of the appellant. Hence, the present appeal is dismissed. Civil Misc. No. 11746-C of 2010 Since the appeal has been dismissed on merits, no orders are called for in the present application for condonation of delay of nine days in filing of the appeal. Hence, the same is disposed of. (Kanwaljit Singh Ahluwalia) Judge August 24, 2011 “DK”