.'w HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION No. 17/2007 APPLICANT (Defendant) RESPQNDENT {Plaiatiffl VERSUS Sakhai Ram Patel Hari Prasad Sahayata ,H Post for pronouncemient oforder on2&/6/2009 Sd/- T.P. Sharma Judge S576/2009 ,.^^5^ f^^ -) APPLICANT (Defendaat) HIGH COURT OF CHHATTISGARH AT BILASPUR CIVIL REVISION No. 17/2007 Sakhai Ram Patel Son of Shri YudhistMr Patel, age about 38 yeaj:s, Occupation Teacher, by caste Aghariya R/o ViUage Kdanwarpali, Post- Nawagarh, Tahaaa aiid Tahsil Saraipali Distt. Mahasaniund (C.G,). VERSUS RBSPONDENT (Plaiutiffl Had Prasad Sahayate S/o Late Shri Moolji Bhai Sahayata, Occupation Teacher aged about 51 years, Caste- Lohada Resident of Saraipali Dist. Mahasaiaund (C.G.). REVISION UNDBR SECTION 115 QP THE C.P.C., 1908. (SB :Hon'ble Mr. T.P.Sharma, J.) Present:-. Shri R.S. Patel, Advocate for the applicant. Shri Manoj Paranjpe, Advocate for the respondent. ORDBR (Passedoa 26/6/20091 By this civil revision applicant/defendant has challenged the legality and propriety of the judgment and decree dated 7/9/2006 passed by First Additional District Judge, Mahasamund in civil appeal No. 02B/2002 where by learned First Additional District Judge has allowed the civil appeal filed against the judgment and decree dated 29/10/2001 passed by Civil Judge Class-II, Saraipali in civil suit No. l-B/99 and decreed the suit for payment of Rs. 10,550/- !. Judgment and decree is challenged on the ground that learned First Additional District Judge has not considered document Ex. D-1 showing the payment of loan transaction and has failed to exercise thejurisdiction vested on it. L According to short dispute of the case present applicant/defendant has taken loan of Rs. 15,000/- on 26/2/96 from non-applicant/plaintiff. Notice of demand of the loan amount was served to the applicant and finally suit for recovery of the loan amount was filed in which it was alleged that present ^ applicant has paid the interest Rs, 700/- + 750/- + 750/- + 750/- + 750/-. Allegation of the plaint was denied by the applicant. 4. After affording the opportunity of hearing trial Court has dismissed the suit on the ground that applicant had repaid the loan amount to the non-applicant vide Ex. D-1. Finding of the trial court has challenged in appeal and judgment and decree was set aside and suit was decreed. 5. Counsel for the parties are heard. 6. Judgment and decree of court below perused. 7. Leamed counsel for the applicant argued that while proving the Ex. D-1 the receipt of repayment and examining the witness of Ex. D-1 i.e. Pitambar Patel. Present applicant/defendant has successfully discharged his burden but learned appellate Court has failed to appreciate the facts and arrived at perverse finding and thereby committed an illegality. Leamed counsel for the applicant further argued that Ex. D-1 receipt is unambiguous and sufficient to prove the fact that Rs. 9000/- has been retumed to the respondents on 26/6/96. Rs. 6650/- was also returned subsequently and finally appellant has retumed Rs. 15650/- more than the amount of loan and has discharged the loan which is supported by the statement of Pitambar Patel. 8. On the other hand, learned counsel for the respondent argued that reasons best known to the appellant, he has not examined himself to prove the allegation of written statement or to prove the alleged receipt Ex. D-1. Leamed counsel for applicant further argued that initially defendant has not alleged relating to repayment on the basis of Ex. D-1 therefore he is not entitled for any relief on the basis of Ex. D- 1. It is clear from the pleadings of the parties that Rs. 15,000/- was given to the appellant by the respondent as a loan. Appellant has specifically pleaded that he has repay the lo^.n but has not entered into the witness box to prove his pleading. Present respondent has not admitted the factum of repayment alleged by the applica:nt in his evidence. Present respondent Hariprasad has admitted ^ -^- l^ the signature in Ex. D-1 relating to receipt of Rs. 9000/- and Rs. 6650/- but has tried to explain that same is related to other transaction. Respondent has pleaded in his plaint that appellant has taken the loan at the interest of 5% per month and has paid interest. Present defendants in his para-4 of his statement he has specifically admitted that loan transaction was without interest and he has receipt the money for the discharge of Principal amount. He has proved the document Ex. P-1 which shows the interest of Rs. 700/- for first month. Appellant witness Pitambar Patel has deposed that on 26/6/96 appellant has repay the amount of Rs. 6650/- to the respondent towards part payment of Rs. 15^000/- which was borrowed by the appellant and respondent has admitted that he has received Rs. 9,000/- earlier and retumed the receipt Ex. D-1 but in his cross examination he has specifically admitted that only Rs. 6650/- was paid before him and Rs. 9fi00/- has not paid before him. Plaintiff has not supported his pleading relating to interest and has deviated from his pleading and deposed that loan was without any interest. Plaintiff/respondent has admitted his signature in Ex. D-1 showing repayment but has tried to explain that Ex. D-1 has not related to present transaction and is related to another transaction but Plaintiff has not deposed anything relating to such other transaction. 10. On the other hand, appellant witness Pitambar Patel has specifically deposed that appellaiit has paid Rs. 6650/- towards payment of loan of Rs. 15^000/-. Respondent has issued the receipt Ex. D-1 in his cross examination he has admitted that appellant has not paid Rs. 9,000/- before him bur appellant has paid Rs. 6650/- before him and receipt Ex. D-1 containing previous receipt of Rs. 9,000/- was issued by the respondent has not stated that he was money lender. No any record relating to money lending has been produced on behalf of the respondent. It appears that this is a case of causal loan. Respondent has admitted the signature on Ex. D-1 but has not explained that Ex. D-1 is related to which transaction only statement that it is related to another transaction is ^T^-. ff 1 ^. ^. ^'^'".^ sss^ ^- not sufficient to discard the statement of witness Pitambar Patel the witness of document Ex. D-1 up to the extent of repayment of Rs. 6650/- towards the discharge of present loan. The statement relating to the payment of Rs. 6650/- towards the discharge of loan amount of present transaction is un challenged and supported by receipt Ex. D-1 is sufficient for drawing the inference that present respondent has received Rs. 6650/- from the appellant towards the discharge of present loan amount. Present respondent has not supported his pleadings and specifically deposed in his evidence that he has received Rs. 700/- first time and Rs. 750/- on 26/6/96, Rs, 750/- on 26/8/96, Rs. 750/- on 26/11/96, Rs. 750/- on 26/12/96 and Rs. 750/- on 26/3/97 thereby he has received Rs. 4450/- and there was no contract of the payment of interest by this way he has received Rs. 4450/- and Rs. 6650/- vide Ex. D-1 there by he has received Rs. 11100/- and only Rs. 3900/- is remain for payment but leamed Additional District Judge has not considered the fact that respondent ha^'discharged the burden of proving the fact that non-applicant received Rs. 6650/- vide Ex. D-1 an thereby arrived at wrong and peryerse finding. Statement of the witnesses are sufficient to prove the fact that non-applicant has received Rs. 11100/- and only Rs. 3,900/- is remained for payment but learned Additional District Judge has failed to appreciate the aforesaid facts and thereby failed to exercisejurisdiction vested on it. 11. For the foregoing reason the judgment and decree is not sustainable, civil revision is partly allowed. The judgment and decree is partly modified. The present appellant shall pay Rs. 3,900/- to the respondent. Party shall bear their on costs. Advocate fee as per schedule. Sd/- T.P. Sharma Judge •y^