1 1 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.639 OF 2005. FIRST APPEAL NO.639 OF 2005. FIRST APPEAL NO.639 OF 2005. Shri Ankush Rajaram Dorge : Appellant. versus Shri Dhondiram Tukaram Dudhane and ors. : Respondents. Mr.P.M.Joshi for the appellant. Mr.Ramesh S. Bhalerao for the respondents. CORAM : D.G.DESHPANDE,J. CORAM : D.G.DESHPANDE,J. CORAM : D.G.DESHPANDE,J. DATED : 13th September 2005. DATED : 13th September 2005. DATED : 13th September 2005. ORAL ORDER ORAL ORDER ORAL ORDER 1. Heard advocate for the appellant and respondents. Appellant is the original defendant, who entered an agreement of sale with the respondents and a decree now for return of earnest money only is passed against him. He has challenged this decree by way of this appeal. It was his contention that the agreement was not 2 2 2 signed by him or that he did not put any thumb impression. The witnesses are examined by the plaintiffs and the scribe of the documents are deposing against him. He also contended that none of the attesting witnesses to the documents was examined by the plaintiffs and that is the lacuna in the case of the plaintiffs. Further contention of the appellant was that it was for the plaintiffs to produce and examine all the attesting witnesses and he was not bound to adduce any negative evidence. All these contentions were rejected by the trial Court because of his conduct and, therefore, this appeal. 2. Similar submissions were made by the counsel for the appellant. At the out set it is to be stated that the entire defence of the defendant is bogus and false. The stamp vendor had no reason to depose against the appellant. There is thumb impression of the appellant not only on the stamp which was purchased in his name but also on the register maintained by the stamp vendor. The scribe has also been examined and the most important and vital document and circumstance that goes against the appellant is 3 3 3 that a notice sent to him by the respondents by RPAD Post was received by him. Acknowledgement was produced on record and the acknowledgement bore the thump impression of the appellant. But the appellant had audacity to deny that thump impression. It is a fact on record that all the documents tendered before the Court, the pleadings and even the subsequent sale deed executed by the appellant bear his thump impression. It is nothing but an attempt to avoid the responsibility after selling the property to others on higher rate and also an attempt to swallow the amount received by him towards the agreement. There is absolutely no merit in this appeal. 3. One prayer was made by the counsel for the appellant that he should be permitted to tender affidavit of one of the attesting witnesses in this court. If at all the appellant wanted to examine any witness, that should have been done in the trial court. When questioned, the counsel for the appellant submitted that, it was not the responsibility of the appellant to adduce negative evidence. If that is his approach, then there is no explanation as to why 4 4 4 at this stage, he now wants to adduce negative evidence. This is nothing but an afterthought. The prayer is rejected. 4. Even though it is at the stage of admission, the appeal is dismissed with compensatory costs of Rs.5,000/- for making a totally false and vexatious claim. [D.G.DESHPANDE,J] [D.G.DESHPANDE,J] [D.G.DESHPANDE,J]