RSA No.4854 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4854 of 2009 (O & M) Date of Decision: 10.02.2011 Chaman Lal ……Appellant Versus Harbans Kaur …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. H. K. Aurora, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.14377-C of 2009 Allowed as prayed for. CM No.14378-C of 2009 For reasons mentioned in the application which is accompanied by affidavit, delay of 6 days in filing the appeal is condoned. Main Appeal. Defendant Chamal Lal, having failed in both the Courts below, has filed the instant second appeal. Respondent-plaintiff-Harbans Kaur filed suit alleging that the defendant-appellant vide agreement dated 04.08.1995 agreed to sell the disputed shop to the plaintiff for Rs.1,55,000/- and received Rs.1,50,000/- as earnest money. It was stipulated in the agreement that the defendant had the option to repay the earnest amount in three instalments of Rs.50000/- each on 10.01.1996, 31.03.1996 and RSA No.4854 of 2009 (O & M) - 2 - 30.06.1996. The plaintiff’s case is that vide four endorsements dated 01.07.1996, 30.08.1996, 09.01.1997 and 10.04.1997, the date for performance of the agreement was extended on the request of defendant to 30.08.1996, 10.01.1997, 10.04.1997 and 18.06.1997 respectively. However, defendant failed to repay the earnest money and also failed to execute sale deed of the shop in favour of the plaintiff. Accordingly, the plaintiff filed suit for possession of the shop by specific performance of the agreement. In the alternative, the plaintiff claimed recovery of Rs.3,00,000/-. The defendant inter alia pleaded that he had borrowed Rs.1,50,000/- from the plaintiff on 04.08.1995 and agreed to repay the same in 3 instalments of Rs.50000/- each as pleaded by the plaintiff. The defendant pleaded that impugned agreement was executed as security for repayment of the loan amount. The defendant broadly denied the plaint allegations. The defendant alleged that he repaid the entire amount to the plaintiff as per terms and conditions of the agreement vide receipt dated 30.06.1996. The defendant denied all the endorsements regarding extension of date. The defendant also pleaded that the suit is time barred. Various other pleas were also raised. Learned Civil Judge (Senior Division), Hoshiarpur vide judgment and decree dated 22.11.2005 decreed the plaintiff’s suit for alternative relief by granting decree for recovery of Rs.1,50,000/- with interest at the rate of 9% per annum from the date of agreement till recovery. In first appeal preferred by defendant, learned District Judge, Hoshiarpur vide judgment and decree dated 09.05.2009 reduced the rate of interest from 9% per annum to 6% per annum RSA No.4854 of 2009 (O & M) - 3 - while maintaining the judgment and decree of the trial Court in other respects. Feeling aggrieved, defendant has preferred the instant second appeal I have heard learned counsel for the appellant and perused the case file. Repayment of loan amount by defendant to plaintiff has not been proved. Learned counsel for the appellant has not been able to seriously challenge the said concurrent finding recorded by the Courts below against the defendant-appellant. However, learned counsel for the appellant vehemently contended that the suit is time barred as endorsements dated 01.07.1996, 30.08.1996, 09.01.1997 and 10.04.1997 were not executed by the defendant. According to the agreement, the amount was repayable by defendant to the plaintiff upto 30.06.1996, failing which agreement was to be specifically enforced. The suit was filed on 07.06.2000. Consequently, if endorsements are held proved extending the date of performance of the agreement till 18.06.1997, the suit filed on 07.06.2000 would come within limitation. Conversely if the said endorsements are held not proved, the suit would be time barred. The plaintiff examined Jagjit Singh PW-1. He stated that he scribed first endorsement dated 01.07.1996 and the last endorsement dated 10.04.1997 and read over the same to the parties and the same were signed by the parties. Mohan Lal PW-3 is attesting witness of all the four endorsements and he also stated about the due execution of the said endorsements by the parties. The plaintiff herself also stepped into the witness box as PW-2 and stated according to his version. On the other hand, defendant RSA No.4854 of 2009 (O & M) - 4 - himself appeared as DW-3 and denied the said endorsements. Defendant also examined handwriting expert to depict that the endorsements do not bear the signatures of the defendant. However, statement of expert witness examined by the defendant was completely impeached in cross-examination. Detailed reasons have been recorded by the trial court to discard the said statement. Even otherwise, testimony of expert witness regarding comparison of handwriting or signature is weak type of evidence and cannot prevail over direct evidence. It is weak type of evidence which requires strong corroboration. It is not unusual that handwriting expert deposes in favour of the party engaging him. There is direct evidence of Jagjit Singh PW-1 and Mohan Lal PW-3 that aforesaid endorsements were executed by the defendant. Their statements could not be shaken in cross- examination. They had no enmity with the defendant. There is, therefore, no reason for discarding their sworn statements. Moreover if the defendant had actually repaid the loan amount as pleaded by him, he would have taken back the agreement. The very fact that he did not take back the agreement would also go against the defendant’s version. In addition to the aforesaid, if the plaintiff were to prepare forged endorsements on behalf of defendant regarding extension of date of performance of the agreement, the plaintiff would not have prepared four forged endorsements and even a single endorsement directly extending the date from June, 1996 to June 1997 would have sufficed. There is also no reason why the plaintiff would have allowed the suit to become time barred if the aforesaid endorsements had not been executed by the defendant. RSA No.4854 of 2009 (O & M) - 5 - For the reasons aforesaid, I agree with the concurrent finding of the Courts below that the aforesaid endorsements are proved to have been executed by the defendant. The said concurrent finding is not shown to be perverse or illegal so as to warrant interference in second appeal. Learned counsel for the appellant contended that Jagjit Singh PW-1 and Mohan Lal PW-3 both stated that the endorsements were signed by both the parties, but in fact the endorsements have not been signed by the plaintiff. The contention cannot be accepted because the aforesaid witnesses were not confronted with the endorsements in their cross- examination to impeach the veracity of their examination-in-chief. In the absence of said confrontation and seeking of explanation from the said witnesses, defendant-appellant cannot derive any capital or benefit out of the aforesaid contention. If the witnesses had been confronted with the endorsements, they could explain whether the same had been signed by the plaintiff and if not, why the witnesses stated in examination-in-chief that the endorsements had been signed by both the parties. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 10.02.2011 A.kaundal