Regular Second Appeal No. 2694 of 2007 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 2694 of 2007 Date of Decision: 3.12.2008 Ramesh Kumar …Appellant Versus Gurdial Singh …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Baldev Raj Mahajan, Advocate for the appellant. Mr. Gagandeep Singh, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Gurdial Singh filed a suit for recovery of Rs.1,85,000/- on basis of an agreement dated 13.8.1992. Case of the plaintiff was that an agreement was executed on 13.8.1992 as Ramesh Kumar, appellant-defendant, borrowed Rs.1,85,000/- for running Guru Nanak Dev Hospital. This agreement has been exhibited as Ex.P1. A photocopy of the agreement has been handed over by Mr. Baldev Raj Mahajan, Advocate, appearing for the appellant. The veracity of the agreement has not been disputed by Mr. Gagandeep Singh, Advocate, appearing for the respondent-plaintiff Gurdial Singh. The agreement when translated, read as under:- “I Ramesh Kumar son of Dev Parkash, is Regular Second Appeal No. 2694 of 2007 2 resident of Lakkar Mandi, Malhotra Market, Batala, District Gurdaspur. I am a permanent resident of above address. I have received in cash Rs.1,85,000/- from Gurdial Singh son of Teja Singh, resident of Manoharpur, Post Office Masanian, Police Station Kadian. I have taken this amount for Guru Nanak Dev Hospital, Lakkar Mandi, Batala. I promise and undertake to return the amount to Gurdial Singh on or before 12.12.1992. In case, I fail to return the amount within the stipulated period to above said Gurdial Singh, then Gurdail Singh will become owner to the 1/3rd extent of my hospital named as Shri Guru Nanak Dev Hospital, Lakkar Mandi, Batala and I will not restrain in any manner entry of Gurdial Singh in the hospital. I have written the agreement for proof dated 13.8.1992. Sd/-Ramesh Kumar. Witnessed by: Kashmir Singh Sd/- Gurdial Singh Sd/- Dr. Harbans Singh” This agreement was later renewed on 12.12.1992. Renewal of agreement when translated, read as under:- “I Ramesh Kumar son of Dev Parkash, resident of Lakkar Mandi, Malhotra Market, Batala. I could not return the amount which I had to return to Gurdial Singh on 12.12.1992. Now the date for Regular Second Appeal No. 2694 of 2007 3 returning the amount has been extended to 1.2.1993. This writing shall be governed by the terms & conditions which have been recorded earlier. As per the new condition, till the amount is returned, Gurdial Singh will remain in possession of the hospital. Sd/-Gurdial Singh Sd/- Ramesh Kumar” This was also mentioned in the plaint that since the amount was not paid on or before 12.12.1992 the agreement was extended. Respondent-plaintiff filed a suit for permanent injunction for restraining the defendant from interfering in possession of the plaintiff or dispossessing the plaintiff from the said Guru Nanak Dev Hospital. It has been stated in the plaint that since no injunction was granted to the plaintiff, he withdrew the suit. It was further stated that since the amount was not returned which was agreed to be returned by Ramesh Kumar, therefore, present suit for recovery was filed. A written statement was filed in which it was denied that agreement dated 13.8.1992 was ever executed and it was further stated that the appellant/defendant had never borrowed the amount and the agreement projected by the plaintiff is illegal, void and without any consideration. It was further stated that plaintiff had lodged FIR on 10.10.1992 against the defendant in which he had received the amount and in view of the statement made by the plaintiff, appellant/defendant was granted anticipatory bail. Replication was filed in which averments made in the written statement were denied and that of the suit were reiterated. Regular Second Appeal No. 2694 of 2007 4 Learned trial Court framed the following issues:- 1. Whether the defendant borrowed a sum of Rs.185000/- from the plaintiff and executed an agreement dt. 13.8.92 in favour of plaintiff? OPD. 2. Whether the agreement dt. 13.8.92 is without consideration? OPD 3. Whether the plaintiff is entitled to recovery of Rs.185000/- as alleged? OPD. 3a. Whether the suit of the plaintiff is within limitation? OPP 3b. Whether the statement of the plaintiff in FIR dt. 10.10.1995 was a result of collusion and conspiracy of the plaintiff with the police? OPP. 3c. If issue is not proved, whether this statement discharged the defendant from the liability? OPD 3d. Whether the suit is not maintainable in the present form? OPD 4. Relief. Learned trial Court held that agreement vide which date was extended was to operate only with respect to repayment of the amount by the defendant to the plaintiff. It further took into consideration the fact that the defendant has denied his signatures and execution of the agreement. Learned trial Court also concluded that by FIR Ex.D1 lodged Regular Second Appeal No. 2694 of 2007 5 by the plaintiff to the police, the version of the plaintiff stand corroborated. Aggrieved against the same, an appeal was filed. Learned Appellate Court in paras 8, 9, 10 and 11, held as under:- “8. I have heard learned counsel for the parties and mulled over the submissions advanced by them during the course of arguments. 9. One of the grounds taken in the appeal is that no amount was borrowed by the appellant from the respondent vide alleged agreement dated 13.8.1992. In order to appreciate, whether the stand taken by the appellant is true or not, counsel for the respondent has drawn the attention of this Court towards the statement of defendant Ramesh Kumar wherein, during his cross-examination, he admitted his signatures on agreement Ex.P1 bears the signatures of Gurdial Singh and that of Harjinder Singh and Kashmir Singh who are the attesting witnesses of the agreement in Ex.P1 not only this, defendant also identified their signatures. When again asked, the defendant further admitted his signatures on Ex.P2 which is writing on the back of the agreement vide which, the time in the agreement was extended to 1.2.1993. The defendant admitted that whatever is contained in Ex.P1 is correct. This leaves no manner of doubt Regular Second Appeal No. 2694 of 2007 6 that the defendant had borrowed a sum of Rs.1,85,000/- from the plaintiff and executed an agreement dated 13.8.1992 in this regard. It is strange that in his deposition, the defendant admitted the agreement and receipt of the amount, but in the grounds of appeal, he has stated that no amount was borrowed vide agreement Ex.P1. The contradictory stand taken by the defendant proves that the case of the appellant-defendant is nothing but a pack of lies. On the other hand, the case of the plaintiff-respondent bears a ring of truth. 10. The appellant has submitted the following case laws and also placed on record some main points:- 2005(3) Civil Court Cases Page 183(SC) Aanaimuthu Thevar (Dead) by LRs vs. Alagammal and others, 1999(2) Apex Court Journal page 258 (SC) Ladu Ram vs. Ganesh Lal, 2002(1) Revenue Law Reporter page 28, Ragh Thilak D. John Vs. S. Rayappan 1998(1) Punjab Law Journal page 643 (SC), Punjab Urban Planning and Development Authority Vs. M/s Shiv Saraswati Iron and Steel Re- Rolling Mills, 2006(3) C.C.C. 573 (SC) Baldev Singh and others etc. Vs. Manohar Singh and another, etc. and 2005(2) C.C.C. 299, Smt. Parkash Kumari versus Balwant Singh and others. The cited authorities are not being discussed as these are not Regular Second Appeal No. 2694 of 2007 7 relevant. In view of what has already been discussed above, the appeal is un-worthy of acceptance and deserves immediate dismissal”. Mr. Mahajan has raised following arguments:- a) That it was incumbent upon the Courts below to consider the fact of withdrawal of earlier suit under issues No.3 and 3d; b) That learned Appellate Court had decided the appeal in most cryptic manner and had not considered the arguments raised by the appellant. He has referred to the grounds of appeal and Annexure A3 written arguments submitted. He has stated that in para 5, it has been specifically stated that earlier suit was withdrawn without seeking prior permission to file a fresh suit; c) That agreement was renewed on the same terms & conditions, therefore, Gurdial Singh is entitled to take possession of Guru Nanak Dev Hospital and become owner to the extent of 1/3rd share of the hospital. Therefore, he was precluded from raising the demand of recovery of the amount. d) That there has been misreading of the evidence on the vital issues; e) That application (Annexure A1) under Order 6 Rule 17 CPC for amendment of written statement was preferred before learned Appellate Court on Regular Second Appeal No. 2694 of 2007 8 9.5.2002, reply to which (Annexure A2) was filed on 12.6.2002 and the appeal was decided without deciding the application. To controvert these arguments, Mr. Gagandeep Singh, Advocate, appearing for the respondent/plaintiff has stated as under:- i) That there was no issue framed by learned trial Court to consider the fact of withdrawal of earlier suit, therefore, no finding could be given as this argument was abandoned by the appellant/defendant or same was not persisted; ii) That application (Annexure A1) was filed on 9.5.2002, reply to which (Annexure A2) was filed on 12.6.2002 and the appeal was decided on 15.5.2007. For a long five years, no effort was made by the appellant/defendant to get the application decided. To fortify his submissions, he had relied upon Sohan Singh v. Gurmej Singh and Others 2002(4) Recent Civil Reports 703; Pritpal Kaur v. Jagrup Singh 1998(4) Recent Civil Reports 269 and Prabhu Dayal v. Hardevi 1994 (1) Punjab Law Reporter 398; iii) That the hospital was already wound up in the year 1992, which was admitted by the defendant in his cross-examination, therefore, subsequent writing dated 12.12.1992 has only to operate qua the recovery of the amount; Regular Second Appeal No. 2694 of 2007 9 iv) That even though the earlier suit was got dismissed as withdrawn, the same was not decided on merits. Therefore, respondent/plaintiff is not precluded from filing subsequent suit for recovery. To fortify his submission, learned counsel has relied upon Amar Singh v. Man Phool 1991(1) Punjab Law Reporter 645. v) That in case written arguments (Annexure A3 ) were submitted before learned Appellate Court, there must be endorsement of the Presiding Officer but on Annexure A3 the same is not reflected. After noticing and hearing the rival contentions of learned counsel for the parties, I am of view that learned Appellate Court below has not considered the rival submissions in the right earnest. On the vital arguments raised before me, there has been no finding returned by learned Appellate Court below. Therefore, it is just and proper if the matter is remanded back to learned Appellate Court below to hear the arguments of the parties and decide the matter afresh. Hence, the present appeal is disposed off in above terms. (Kanwaljit Singh Ahluwalia) Judge December 3, 2008 “DK”