IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 30 of 1998. Reserved on: 27.10.2008. Decided on: _6.11.2008. __________________________________________________ Surinder Kumar Acharya … Appellant. Versus Rooma Devi and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Tarun Vaid, Advocate. For the respondents : Mr. Ajay Kumar, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree passed by the learned Additional District Judge, Shimla on 19.5.1997 in Civil Appeal No. 31-S/13 of 1993. Brief facts necessary for adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit in the Court of learned Sub Judge Ist Class, Court No.1, Rohru for the recovery of a sum of Rs. 20,405/- (principal amount Rs. 15,500/- and interest Rs. 4,805/- at the rate of 12% per annum w.e.f. 1.5.1988 to 31.12.1990). The suit was resisted by the appellant/defendant, hereinafter referred to as the defendant for 1 Whether reporters of the local papers may be allowed to see the judgment? 2 convenience sake. The Civil Court decreed the suit on 7.4.1993. The defendant filed an appeal before the learned Additional District Judge, Shimla on 5.5.1993 against the judgment and decree passed by the learned Sub Judge Ist Class, Rohru on 7.4.1993. The learned Additional District Judge, Shimla dismissed the appeal on 19.5.1997. This regular second appeal has been preferred against the judgment and decree passed by the learned Additional District Judge, Shimla. The regular second appeal was admitted on the following substantial questions of law: 1. What is the effect of re-marriage of respondent No.1 and whether she is entitled to still act as guardian and next friend of respondent No.2? 2. Whether respondent No.1 has got interest adverse to the minor in view of the facts stated in grounds of appeal? 3. Whether the suit of the respondent/plaintiff is not legally maintainable in view of the provisions of Chemist and Druggist Act, 1940 and Rule 45 of the Act? 4. Whether the respondents are legally entitled to make any claim on the basis of affidavit Ext.PW1/A. 5. Whether the document Ext. PW1/A is a legal and valid document? Mr. Tarun Vaid, Advocate has strenuously argued that the judgments and the decrees passed by the learned Courts below are not sustainable in the eyes of law. He then contended that Ext. PW1/A dated 30.4.1988 is not admissible in evidence. He also contended that the learned Courts below have mis-read the evidence. 3 Mr. Ajay Kumar, Advocate has supported the judgments and decrees passed by both the learned Courts below. I have heard the parties and have perused the record carefully. Since the substantial questions of law are inter- connected, these have been taken up together for consideration. The plaintiffs had examined three witnesses in their support. PW-1 Shri Dhani Ram Verma was the Executive Magistrate, Rohru from November 1985 to June 1989. He deposed that he knew the defendant. The defendant had executed an affidavit Ext.PW1/A in favour of plaintiff No.2 (Karun) on 30.4.1988. He had read over and explained the contents of the affidavit to the defendant. The defendant had admitted the execution of the affidavit before the Executive Magistrate. Shri Hardev Singh (PW-2) had scribed the affidavit Ext.PW1/A at the instance of defendant. Smt. Rooma Devi (PW-3) had supported the suit. Shri Surinder Kumar (DW-1) had refuted the evidence of the plaintiffs. He had stated that he was compelled to execute Ext.PW1/A. DW-2, Leela Devi is the mother of defendant. It has come in the evidence that the defendant and Shri Ravinder Kumar were running the business in the name and style of M/s Ved Parkash Surinder Kumar. Shri Ravinder Kumar had died on 31.10.1986. The defendant had taken over the entire business after the death of Shri Ravinder Kumar. It was in these circumstances that the defendant had executed affidavit (Ext.PW1/A) in favour of 4 the plaintiff (Karun). He was to pay a sum of Rs. 500/- per month w.e.f. 1.5.1988. The execution of affidavit (Ext.PW1/A) has been duly proved on the basis of evidence of the Executive Magistrate before whom the affidavit was attested and on the basis of statement of PW-2 Hardev Singh who had scribed the affidavit. The defendant had even denied the marriage of his brother with plaintiff No.1. However, he could not prove this. The interest of plaintiff No.1 is not at all adverse to the interest of plaintiff No.2. The defendant has not led any evidence in what manner he was forced to execute the affidavit Ext. PW1/A. The learned Courts below have rightly discarded the statement of DW2- Smt. Leela Devi. The defendant is bound to pay a sum of Rs. 500/- per month to plaintiff-Karun as per affidavit Ext. PW1/A. Ext. PW1/A has been duly proved in accordance with law and as such was admissible. The contents of the affidavit have duly been proved by PW-1 and PW-2, thus, Section 3 of the Indian Evidence Act is not attracted in the present case. There is no substantial question of law involved in this regular second appeal and the same is accordingly dismissed. No costs. (Rajiv Sharma), J. November 6, 2008. (cr)