R.S.A. No. 1759 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1759 of 2008 Date of decision: 05.02.2009 Sahib Singh ....Appellant Versus Dharam Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Chander Shekhar, Advocate, for the appellant. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 29.8.2007 passed by the learned lower appellate Court vide which the suit filed by the plaintiff/appellant for recovery of Rs.65,000/- i.e. Rs.50,000/- principal amount and Rs.15,000/- as interest @ 1 ½ % per month on the basis of pronote and receipt dated 24.5.1996 has been dismissed. The case set up by the plaintiff/appellant was that a friendly loan of Rs.50,000/- was advanced to the defendant/respondent on interest @ 1 ½% per month and the defendant/respondent executed a pronote. The plaintiff further pleaded that though the amount was agreed to be returned with interest, but he refused to do so in spite of repeated requests. The plaintiff claimed that instead of repaying the loan, he was threatened with dire consequences. R.S.A. No. 1759 of 2008 -2- On notice the defendant/respondent contested the suit primarily on the ground that no loan was advanced. The pronote was, in fact, executed as security for a bet between the parties regarding winning up of a particular candidate in the election. The learned trial Court decreed the suit in view of the fact that the execution of pronote stood proved by the attesting witnesses, the learned trial Court held that once the execution of pronote is proved, presumption of passing of due consideration had to be drawn. The defendant/respondent preferred an appeal against the judgment and decree passed by the learned trial Court. The learned lower appelalte Court, on appreciation of evidence brought on record observed that there was interpolation in the pronote as date 4.5.1996 was changed to 24.5.1996, and also that there was press report regarding betting going on in the area regarding a particular candidate. The learned lower appellate Court also held that the evidence brought on record by the plaintiff/appellant to prove the due execution of pronote could not be believed as the attesting witnesses were not able to tell the place of execution of the pronote and had taken different stands in this regard from that of plaintiff/appellant. Thus, on appreciation of evidence on record, the learned lower appellate Court came to the conclusion that this was, in fact, a wagering contract, which could not be enforced in law. Consequently, it was held that it was not a transaction of loan, as claimed by the plaintiff. The judgment and decree passed by the learned trial Court was reversed and suit for recovery was ordered to be dismissed. The learned counsel for the appellant raised the following R.S.A. No. 1759 of 2008 -3- substantial question of law for consideration: - “Whether a document which is neither exhibited in the evidence of a party nor proved by its author, can be taken into consideration while passing the judgment and decree?” In support of substantial question of law learned counsel for the appellant contends that the learned lower appellate Court was in error in taking note of the report of Hand Writing Expert, which was not proved on record, thereore, the finding recorded by the learned lower appellate Court is perverse and outcome of reading of documents, which, in fact, did not form part of admissible evidence. This contention of the learned counsel for the appellant cannot be accepted, as the finding of the learned lower appellate Court is not based on the report of Hand Writing Expert. The learned lower appellate Court has made a passing reference to the said report without relying upon it. Reliance has been placed on other evidence brought on record, and also by looking at pronote, where word “2” was written with different ink than rest of the pronote, thus creating doubt on genuineness. The learned counsel for the appellant thereafter contended that news item could not be taken into evidence in absence of having been proved on record by examination of the reporter. This contention also cannot be accepted. The learned lower appellate Court has merely observed that the news item did not mention the names of the parties. It is only on appreciation of evidence on record that the learned lower appellate Court has come to the conclusion that the possibility of pronote having been executed for payment of bet amount could not be ruled out. R.S.A. No. 1759 of 2008 -4- The Civil Court can always record a finding on probabilities of evidence brought on record, and no error can be found with the judgment on the pleas raised by the learned counsel for the appellant. The learned counsel for the appellant also contends that the judgment passed by the learned lower appellate Court is based on surmises and conjectures, and is outcome of misreading and misappreciation of evidence on file. This plea also cannot be accepted, as the finding recorded by the learned lower appellate Court cannot be said to be perverse. The plaintiff/appellant was not able to refute that he had taken loan on number of occasions from bank and, therefore, his financial position was not such to have lend a sum of Rs.50,000/- by way of friendly loan. The learned lower appellate Court also held that the execution of pronote did not stand proved by attesting witnesses on the point of payment and place of execution. The substantial question framed, does not arise for consideration in the regular second appeal. The finding of fact has been recorded by the learned lower appellate Court on appreciation of evidence, which is final Court of fact and, therefore, no ground is made out to interfere with the said finding. Dismissed, in limine. (Vinod K. Sharma) Judge February 05, 2009 R.S.