RSA No.4506 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4506 of 2005(O&M) Date of decision: 10.11.2008 Gurcharan Singh …… Appellant versus Punjab Khadi & Gram Udhyog Board and another …….Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR GARG * * * * Present: Mr. S.S. Sodhi, Advocate for the appellant. Mr. N.S. Jagdeva, Advocate for the respondents. * * * * Rakesh Kumar Garg, J . CM No.12177-C of 2005 For the reasons recorded in the application, delay of 1 year and 187 yeas in refiling the appeal is condoned. CM stands disposed of. RSA No.4506 of 2005(O&M) This is plaintiff's second appeal challenging the judgment and decree of the Lower Appellate Court whereby the appeal filed by the respondents has been accepted and suit of the plaintiff-appellant which was decreed by the trial Court, has been ordered to be dismissed with costs. Gurcharan Singh plaintiff had obtained loan of Rs.15,000/- from the Punjab Khadi and Gram Udhyog Board the defendant-respondent. According to him, he had returned the whole amount on 11.8.1993 and nothing was due from him. He, however, received a notice requiring him to RSA No.4506 of 2005(O&M) 2 pay Rs.26,375/-. He accordingly filed the present suit for permanent injunction restraining the defendant-respondents from recovering the aforesaid amount of Rs.26,375/- The suit was contested by the defendant-respondents that it is not maintainable in the present form; that the plaintiff has no locus standi and cause of action to file the present suit; that the plaintiff has concealed material facts and the suit is liable to be dismissed in view of Order 7 Rule 1 (J) of CPC because earlier also the plaintiff had filed civil suit, which was dismissed in default. On merits, it was denied that the plaintiff had paid the entire amount and nothing is due from him. Both the parties produced evidence in support of their contentions. After hearing learned counsel for the parties and perusing the evidence on file, the trial Court decided all the issues in favour of the plaintiff-appellant. Accordingly, the suit of the plaintiff-appellant was decreed vide judgment and decree dated 15.4.2002. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the defendants filed an appeal. While accepting the appeal, the Lower Appellate Court held that the plaintiff-appellant has not paid the amount in question and the defendant-respondents are entitled to recover the same, and the plaintiff-appellant is not entitled to the decree for permanent injunction as prayed. The findings on other issues No.2 to 5 were also reversed in favour of the defendant-respondents. Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decree of the Lower Appellate Court. Learned counsel for the appellant has vehemently contended that the receipt Ex.P1 vide which the appellant repaid the amount of loan was issued by the defendant-Board and the plaintiff has fully proved on record these above mentioned facts by producing independent witnesses RSA No.4506 of 2005(O&M) 3 and even the witness of the defendant-Board Mohinder Singh DW-1 has stated in his deposition that Bhim Shah who issued the receipt Ex.P1 was an employee of the defendant-Board at the relevant time. It has been further argued by the learned counsel for the appellant that the defendant- Board could have produced the relevant record with regard to the loan amount which was available with the defendant-Board along with the concerned official Bhim Shah in defence evidence. Neither Bhim Shah has been produced by the defendants nor the record has been produced, hence, an adverse inference is to be drawn against the respondents and thus, the judgment and decree of the Lower Appellate Court is liable to be set aside. On the other hand, learned counsel for the respondents has supported the findings of the Courts below and has argued that the Lower Appellate Court on appreciation of evidence has recorded a finding of fact that the appellant has failed to prove repayment of the loan amount and therefore, he is not entitled to the relief of permanent injunction as prayed and the appeal is liable to be dismissed. I have heard learned counsel for the parties and perused the record. I find no merit in the contentions raised by the learned counsel for the appellant. It is the positive case of the appellant that he is entitled to decree of permanent injunction restraining the defendants from recovering a sum of Rs.26,375/- as he has already repaid the said amount of loan. Thus, the onus to prove the fact that he has repaid the amount in question to the defendant-respondent was upon him. To prove his case, the plaintiff -appellant has relied upon receipt Ex.P1 which was issued by one Bhim Shah, an employee of the defendant-respondents. Undisputedly, Bhim Shah who issued the alleged receipt Ex.P-1 has not been examined. Thus, RSA No.4506 of 2005(O&M) 4 it cannot be said that execution of Ex.P1 stands proved on the file. The aforesaid Bhim Shah was not produced by the plaintiff-appellant for the reasons best known to him. Not only this, when the respondents moved the application for producing Bhim Shah in the witness box, his production as witness was opposed by the appellant tooth and nail. The non production of Bhim Shah is a strong circumstance against the appellant. Even the evidence produced by the plaintiff-appellant in this regard does not inspire confidence. PW-2 Jarnail Singh, who is the co-villager of the plaintiff, stated that no receipt was taken from Bhim Shah. PW-3 Nahar Singh also deposed that in his presence, no receipt was given by Bhim Shah to the plaintiff. Both these witnesses have therefore, categorically falsified the stand of the plaintiff-appellant that Bhim Shah had issued receipt Ex.P1. Thus, in the absence of any evidence to prove the receipt Ex.P1, no fault can be found with the findings of the Lower Appellate Court that the appellant has failed to prove the repayment of loan. The findings of the Lower Appellate Court on other issues have not been challenged by the appellant, as no other point has been urged before me. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. November 10, 2008 (RAKESH KUMAR GARG) ps JUDGE