R.S.A. No. 2211 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2211 of 2009 (O&M) Date of decision: 27.05.2009 Dr. R.N. Swami ....appellant versus Surinder Singh ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Vinod Chaudhri, Advocate, for the appellant. *** VINOD K. SHARMA, J. (ORAL) C.Ms. No. 6598-C and 6600-C of 2009 Allowed as prayed for. C.M. No. 6599-C of 2009 This application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure has been moved for leading additional evidence. The appellant by way of additional evidence wants to place on record two agreements to sell entered into between the appellant and Smt. Balwinder Kaur as also an undertaking by Smt. Balwinder Kaur wife of Surinder Singh, wherein it was mentioned that a sum of R.S.A. No. 2211 of 2009 (O&M) -2- Rs.40,000/- was retained, which was to be paid to Ravinder Nath Swami on delivery of possession of flat to Smt. Balwinder Kaur. The contention of the learned counsel for the appellant is, that the documentary evidence is necessary for just and proper adjudication of the dispute between the parties, therefore, the application be allowed. The pleadings in the application do not meet with the requirement of Order 41 Rule 27 of the Code of Civil Procedure. Even otherwise, the documents sought to be produced by way of additional evidence were within the knowledge of the appellant during the pendency of the case before the learned trial Court as well as learned lower appellate Court, however, no steps were taken to produce them on record. The documents are not such which are required by the Court to pronounce judgment, as these documents are not relevant with matter in issue between the parties. No merit. Dismissed. R.S.A. No. 2211 and C.M. No. 6601-C of 2009 This regular second appeal is directed against the judgment and decreed dated 26.2.2009 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent for recovery of Rs.1.00 lac along with interest, stands decreed. The plaintiff/respondent brought a suit for recovery on the pleadings, that a friendly loan of Rs.1.00 lac was advanced to the defendant/appellant. On his asking the amount was deposited in his account by way of bank draft. The receipt of the amount was not disputed. Even otherwise official of the bank was examined who proved R.S.A. No. 2211 of 2009 (O&M) -3- that the amount was credited to the account of the defendant/appellant. The suit was contested on the plea that, in fact, the defendant/appellant was an outsider, who wanted to sell his flat in Sector 51, Chandigarh, and for the purpose he had approached the plaintiff/respondent for sale of flat. It was for the said purpose that number of documents were got signed which have been mis-used. It was further the case of the defendant/appellant that in view of the transactions between the parties, they developed friendship. It was agreed between the parties that the defendant/appellant would be entitled to commission out of the sale transaction conducted by the plaintiff/respondent. The learned Courts below, on appreciation of evidence, accepted the version of the plaintiff/respondent. The suit amount was not raised on the basis of any document which could be said to have been signed during transaction of sale of flat. The suit was filed on the basis of loan advanced by way of bank draft, which was deposited in the account of the defendant/appellant. No documentary evidence was produced on record showing understanding/agreement between the parties for profit share. It was on account of failure of the defendant/appellant to produce any documentary evidence that the learned Courts below have accepted the version of the plaintiff/respondent. The judgment and decree, therefore, is based on appreciation of evidence on record. The learned counsel for the appellant contends that the appeal raises the following substantial question of law: - “Whether the judgment and decree passed by the R.S.A. No. 2211 of 2009 (O&M) -4- learned Courts below is outcome of mis-reading of pleadings as well as oral and documentary evidence, thus, perverse?” In support of the substantial question of law, the learned counsel for the appellant contends that the learned Courts below have failed to take note of the fact that there was no possibility of the plaintiff/respondent having advanced loan to the defendant/appellant in absence of agreement, as contended by the defendant/appellant. The contention of the learned counsel for the appellant is that the necessity to deposit money could only arise if there was some transaction between the parties. The story put up by the defendant/appellant, therefore, was more probable and ought to have been believed in preference to the case set up by the plaintiff/respondent, claiming that on telephonic call he had lent a sum of Rs.1.00 lac to the defendant/appellant. On consideration, I find no force in the contention raised by the learned counsel for the appellant. As already observed in the facts narrated above, the learned Courts below on appreciation of evidence have accepted the version of the plaintiff/respondent, as it was proved that an amount of Rs.1.00 lac was deposited in the account of the defendant/appellant. The learned Courts below keeping in view the fact that there was no agreement between the parties, granted interest only @ 6% as envisaged under Section 34 of the Code of Civil Procedure. The findings recorded by the learned Courts below, therefore, cannot be said to be outcome of mis-reading of pleadings and evidence, to hold the findings to be perverse, as contended. R.S.A. No. 2211 of 2009 (O&M) -5- The substantial question of law raised is answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 27, 2009 R.S.