RSA No.3344 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.8239-C of 2006 & RSA No.3344 of 2006 Date of Decision:12.11.2008 Hakam Singh ....appellant Versus Jaswant Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.K.K.Garg, Advocate for the appellant Mr.Munish Bansal, Advocate for the respondent **** RAKESH KUMAR GARG J. CM No.8239-C of 2006 This is an application for condonation of delay of 49 days in filing the appeal. Notice of the application was given to the respondent. No reply has been filed. For the reasons recorded in the application, C.M.is allowed. Delay of 49 days in filing the appeal is condoned. RSA No.3344 of 2006 This is defendant's second appeal challenging the judgment and decrees of the Courts below, whereby suit of the plaintiff-respondent for recovery has been decreed with costs and interest. Briefly stated, the plaintiff has filed the suit for recovery of Rs.54,900/- with further interest @ 12.2% per annum on the averments RSA No.3344 of 2006 2 that on 10.11.2000, the defendant borrowed a sum of Rs.40,000/- from him and agreed to return the same along with interest @ 2% per month. In consideration of the said amount, defendant executed a pronote and receipt in favour of the plaintiff in the presence of the witnesses. Despite demand and repeated requests, defendant did not make any payment. In these circumstances, hence this suit for recovery of Rs.54,900/- i.e.Rs.40,000/- being the principal amount and Rs.14,900/- as interest accrued, thereon. Upon notice, defendant filed written statement taking legal objections. On merits, it was alleged that the defendant neither borrowed any amount from the plaintiff nor executed any pronote or receipt. It was further pleaded that the pronote and receipt are forged and fabricated documents and therefore the question of return of any amount does not arise. The issues were framed by the trial Court in the suit. The plaintiff-respondent led evidence in support of his case. The defendant failed to produce any evidence despite sufficient opportunities and ultimately his evidence was closed by order dated 31.03.205. The trial Court decreed the suit of the plaintiff-respondent vide judgment and decree dated 01.04.2005. Feeling aggrieved against the aforesaid judgment and decree of the trial Court, the defendant filed an appeal praying that appeal be accepted, impugned judgment and decree be set aside and the case be remanded back to the trial Court for fresh decision after providing opportunity to the defendant to lead evidence. This appeal was also dismissed by the Lower Appellate Court. While dismissing the appeal, the Lower Appellate Court found that in spite of opportunities given to the defendant, he had failed to examine any witness and he even himself had not stepped into the witness box to deny the execution of the pronote and RSA No.3344 of 2006 3 receipt. Still not satisfied with the judgment and decree of the Lower Appellate Court, the defendant has filed the present appeal in this Court challenging the aforesaid judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the judgment and decrees of the Courts below are illegal and erroneous as the appellant was not given sufficient opportunity to prove his case. Elaborating further his argument, the learned counsel argued that appellant had taken a specific stand that the alleged pronote and receipts are forged and fabricated documents and to prove this stand, the appellant deposited diet money in the trial Court for summoning the expert witness for comparison of his signatures on the pronote and receipt in question but the trial Court illegally closed the evidence of the appellant. Thus, the closure of evidence by the trial Court tantamounted to decreeing the suit without giving any opportunity which is against the settled law and therefore the judgment and decrees of the Courts below are liable to be set aside. On the other hand, learned counsel for the respondent has supported the findings of the Courts below and has argued that a concurrent finding of fact has been recorded by both the Courts below to the effect that appellant has failed to lead any evidence and he even himself appeared into the witness box to deny his signatures on the disputed pronote and receipt in question. I have also perused the Zimni orders passed by the trial Court with the help of counsel for the parties. The appellant was given opportunity to lead evidence on 30.11.2004, 13.12.2004, 28.01.2005, 16.03.2005 and 31.03.2005. However, no witness was present on all those dates on behalf of the appellant. It has also been recorded in these zimni orders that the evidence was to be brought by the appellant at his own RSA No.3344 of 2006 4 responsibility. Thus, the learned counsel for the appellant failed to substantiate his case that he had sought assistance of the court to summon the witness and he was not at fault. In fact, the stand taken by the appellant is contrary to the evidence and facts on record. Thus, no fault can be found with the findings recorded by the Courts below. No other point has been argued by the learned counsel for the appellant. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. (RAKESH KUMAR GARG) JUDGE 12.11.2008 neenu