Regular Second Appeal No.704 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh Regular Second Appeal No.704 of 2009 Date of Decision: 7.9.2011 Jawahar Lal ... Appellant Versus Jagtar Singh ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Brijeshwar Singh Bhalla, Advocate for the appellant. Mr. Vikas Kumar, Advocate for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present regular second appeal has been preferred by Jawahar Lal, plaintiff to the suit. He had instituted a suit for recovery of ` 33,600 on the basis of a pronote and receipt dated 14.12.2002. It was pleaded in the plaint that on 14.12.2002, the defendant took a loan of ` 33,000 and he agreed to repay the same along with interest thereon at the rate of 2% per month. Upon notice, the defendant has caused appearance and raised preliminary objection regarding maintainability of the suit. It was further pleaded that the alleged pronote and receipt are fabricated one and material alterations have been made. Regular Second Appeal No.704 of 2009 2 The plaintiff examined Kulwant Rai, attesting witness of the pronote and the receipt as PW.1 and he himself appeared as PW.2. Scribe of the pronote and receipt Dharampal Bansal appeared as PW.3, whereas defendant-Jagtar Singh appeared as DW.3 and also examined Clerk Record Keeper (Judicial) as DW.2. The trial Court had decreed the suit against which the defendant has filed an appeal and the same was accepted by the lower Appellate Court. The finding returned by the trial Court was set aside. It will be apposite here to reproduce the finding given by the lower Appellate Court:- “11...The plaintiff has filed this suit for the recovery of ` 33,600 on the basis of pronote and receipt dated 14.12.2002. As per the version of plaintiff Jawahar Lal the defendant took a loan of ` 30,000 from him and in lieu of that executed the pronote and receipt Ex.P1 and Ex.P2 which is signed by Kulwant Rai as witness and it is also signed by Dharam Pal Bansal, Advocate, who is also scribe of this pronote and receipt. When the statement of Jawahar Lal (PW2), the plaintiff was recorded, during his cross-examination he was asked by the counsel for the defendant to identify Jagtar Singh defendant from the Court. On this point, Jawahar Lal (PW2) identified another person namely Gurmail Singh son of Mohinder Singh who is also examined as DW1 in the present case. Therefore,the plaintiff Regular Second Appeal No.704 of 2009 3 failed to identify the defendant whom he claims to have given a loan of ` 30,000 on the basis of pronote and receipt dated 14.12.2002 which the defendant has failed to repay despite repeated demands. Similarly, Dharam Pal Bansal, Advocate (PW3), who is the scribe as well as witness to the pronote and receipt also could not identify the photograph of Jagtar Singh from a group photograph placed on record as Ex.D1. The conduct of plaintiff as well as scribe Dharam Pal Bansal, Advocate, clearly shows that they are unable to identify Jagtar Singh appellant-defendant. No explanation has been given by the plaintiff why he could not identify the defendant to whom he had given the loan. Keeping in view the cross- examination of above said witnesses, the execution of pronote and receipt Ex.P1 & x.P2 and the passing of consideration of ` 30,000 to the defendant is highly doubtful. The trial Court while deciding the present suit has totally ignored these facts.” With the aid of learned counsel for the parties, I have perused the evidence. PW.1 Kulwant Rai, attesting witness, has stated that the pronote and the receipt were signed by Jagtar Singh and then by Jawahar Lal. The pronote and the receipt were scribed by Dharampal and the pen used was of Dharampal and the same pen was used by the Regular Second Appeal No.704 of 2009 4 defendant. It was stated that when the defendant was signing the documents, the pen stopped and another pen was used. Jawahar Lal, plaintiff/appellant, in his cross-examination stated that “Jagtar Singh is standing behind me in the Court. The person present in the Court said that his name is Gurmail Singh s/o Mohinder Singh r/o village Rahu Ke Kalan”. The lower Appellate Court has also considered the fact that the Scribe could not identify the defendant from the photograph Ex.D1. Mr. B.S. Bhalla, Advocate, appearing for the appellant, has submitted that the reasons assigned by the lower Appellate Court to disturb the finding of fact returned by the trial Court are not cogent. It is submitted that it has been explained by PW.1 Kulwant Rai that the pen stopped and therefore, in the midway, while appending signatures on the pronote Ex.P1, another pen was used. He has further submitted that the explanation is sufficient to hold that the alleged forgery was on the revenue stamp. He has further submitted that so far as the receipt is concerned there is no allegation of forgery. Furthermore, he submits that the plaintiff has stated that Jagtar Singh was standing in the Court but he was giving the name of other person, therefore, it cannot be said that the plaintiff had not been identified by Jagtar Singh. It is further submitted that nobody will be able to identify the person from the photograph which has been taken considerable long time ago. Learned counsel for the appellant has submitted that in view of the above, this Court should set aside the finding returned by the lower Appellate Court. The arguments advanced by learned counsel for the appellant, if, are taken into consideration, the Court would be formulating another Regular Second Appeal No.704 of 2009 5 view, whereas the view formulated by the lower Appellate Court is the one which is possible on the facts of the case. This Court, while entertaining the regular second appeal will not disturb the view formulated by the lower Appellate Court because another view, as canvassed by learned counsel for the appellant, is possible on the facts of the case. Learned counsel for the appellant has submitted that both the views can be taken and hence, this Court should propound the view which was taken by the trial Court. Lower Appellate Court is a Court of law and facts, whereas in the regular second appeal, the question of fact will not be determined as this Court cannot tread on the path of re-appreciation and do re- appraisal of the evidence. Thus, this Court will be hesitant to cause interference especially when no question of law, much less a substantial one, has been canvassed before me during the course of arguments. Hence, the present appeal is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge September 7, 2011 “DK”