:'"^'' IN THE HIOH COURT OF CHHATHSGARH AT BIIASFUR .^§3.„„. SecondAppeaINd^_^/2005 SJMi^'Sa; APPELIABT : Gaya R-asad, ^Apuellflnt/Defdt. ' S/o ShriKadheShyam, Aged about 45 years, E/o Quarter No. D.M. 78, Oam.pur Colony Rajgamar, Tahsdl & Diatrict- Korba (C.O.) - Voniw - •::> \.^ RESPONDENT/ Flamtiff f ^..-\- ^••^ {^- ^Shri Sundennffli, S/ o Shri Bhagan Slngh, aged about 45 years, Caate- Blyar, R/o Gayatri Nagar, Rajgaiuar, Tahafl aad District- Korba (C.G.). 8ECOBD APPBAL VSDVS. 8BCTIOH l3So OF THB CODE ^^£^SS^jT- c.rAe6"'* ~ ^l l...1-'"' •fty.y-- ll.A*" OF cren. pROCiamtB. isos. ^.E.astis^sfeSS XI-HC-78 \3W|-qi<<|C)<t,t»T;TlwiS,Rlril<My< ^ /\ - Uo , s-o2,/^^— 'TFRCTaplT^ ^F^200 sn^iq^; (yiTgqtg) i?TWR»1 iraisn^rBTto S'RITgR'HlSd 3II$?T Mr. K.K.Singh, learned coun Mr. Anand Shukla, learned }el for the appeliant. cit>unsel for the respondent. Heard on admission, The instant appeal has Section 100 of the Code of Civil 3/2005, preferred bythe appellant 27-1-2005 passed by learned Firs^ further dismissed by the learned P dated 7-10-2005, befen ^n preferrsd by the appeilant under proceduce, a.s the Civi! Appeal No.1- jigainst the judgment and decree dated Civll Judge Class-i, Korba, has been [istrict Judge, Kflrba vide his judgment fil averring that the appellant loan on 15-6-1998 and had ex^ witnesses and the defendant did Several written demands through u!timate!y a !ega! notice was sen| receive the same on 1 5-6-2000. I denied the averment of the plaint the piaintiff. He stated thatthe do4ument He aiso denied that the plaintiff a legai notice. respective parties, issues were witnesses, the learned Civil Jydge| <pi<ilc)«1ifliioT^f fa'^1 '(Ri't^i't ??diRlt3n^»i ed a suit for recovery of Rs.35,000/-, deferldant had taken the above amount on h ;uted a receipt in the presence of |iot repay the loan despite demands. [etters were made by the plaintiff and i, however, the defendant refused to his written statement, the defendant ind denied that he took any loan from receipt is.a forged document. ^ent any letters demanding the loan Inotice as averred in the plaint or he On the basis of the pleadings of the and after recording statements of decreed the suit with the finding inter --^ [iw*""' XI-HC-78 vjwi T«i<<in«,tyrllwis, Rril'Hy'j -£--^-Wo-s-o^./e'^-' *fl*tc»lJBW 2L sn^9rqsi^ (q^fgqs) ^r^TR'fi* aansn^CTri'ii* S^Tirw'ulict st^v iiKiIcxIli iiinT^" fe><9 '(Rj+^l't ^aiKliSD^ti affa that the defendant, after obts piajntiffon. 15-6-1998, had. execut^ The ioan-receipt is not a forged decreed the suit for a sum of Rs.; from the date of institutlon of the s| against the judgment of the trial Court dismissed the appea! and passed by the tria! Court. jining a loan of..Rs.35,000/- from the |d the receipt in favour of the plaintiff. fabricated document and accordingly j5,000/- with interest at the rate of 6% E. The appeliant preferred an appeal ;ourt and the iearned First Appellate lconfirmed the judgment and decree sdit apjsel Learned counsel for the the Courts below on the grojund ignored the statements of the witn^sses admitted that the document in quesj their presence and as such bot|i iliegality by not hoiding the ]oai| fabricated, and in the aforesaid substantial question of law - 'Wh^t the case the findings of the First Af|pi of law that the Exhibit P/1 is not i made out and the further subsyi 'Whether the Court below is justifi^c 6% interest?". iant has assailed the judgments of that both the Courts below have ofthe piaintiff, wherein theyhave |ion was not signsd bythe defendant in the Courts below have committed ^-receipt of Ex.P/1 to be fatee and circumstances, it is contended that [ther in the facts and circumstances of Ipeitate Court is sustainabie in the eyes faise and fabricated document?"- is ^ntial question of law proposed is - ^d in decreeing the suit of the plaintiff In support of the submissi^n Dlaces reliance in the matter of Gw< i, learned counsel for the appellant lior Ceramic and Potteries Pvt'. Ltd. vs. Karamchand Thapar and Bros. Cot Sales Ltd., Gwalior, reportgdjn_1996 XI-HC-78 vfW '«iqiCT«,t»Tdl<H<IS,RCTmyt S.A-M°--ro5^^- ^^ ^^ an^CT^ifS-fii* a2IT3II^CT**114> s^aiSR'ulSd airtn defendant to get the signature handwriting expert, however, the regard. Thus, after marshaling available on record, both the Court^ that the defendant obtained a loafi executed the loan-receipt of Ex.P/1] in question was not a false and decreed the suit. |)resent on Ex.P/1 examined by the [defendant did not take steps in that |:he evidence, oral and documentary, below have recorded a finding offact of Rs.35,000/- from the plaintiff and |in view of the same, and the document fabricated.document, and accordingly, So far as the first substarltial IIant is concerned, there is basis of which both the Courts be| the document, Ex.P/1 was faise the defendant to substantiate his the first substantial question of ia^ not arise for adjudication in this ap|}ea! rto anti the matter of Gwalior Ce has been held that a document Sections 47 and 67 of the Eviderl regard to the opinion as to the ha< thatthe document may be proved) wrote the document or by callingl handwriting of the person who is| document and unless the requi( statement of the handwriting •niotnoll imnl"^" fa'^1 '(Rl't^l'! ^3lKl*)iWI^?I question of taw proposed by the material avaiiable on record on the low could arrive at the conclusion that fabricated, as no evidence was led by c|ontention in thls regard and, therefore, ', as proposed by the appeilant, does |amic and Potteries Pvt. Ltd. (Supra), it may be proved as per provisions of ce.Act, which makes a provision with idwriting and which makes a provision by examining a person who signed or a person who is acquainted with the a'ieged to havesigned or written the •ement of !aw is fulfilted, the mere <pert that the document is in the XI-HC-78 HINril JSVSW ycq "qiOICTO, WTllwiS, Rril'My't -s -A-V^ .5'CLS/(?^~ ^>~~~ 3n^?iqa^ (^ifg^s) ff^CTiRlftqR? BatI3D^?I^>riW ^•^ •y^ ^. \^ S^ITSR'HlSd W^V handwriting of the particular perso; In the instant case, on the basf Sunderman and the attesting Courts below have recorded a findit was executed bythe defendant. T( by the ptairttiff to the defendant has statements of the above witness^s finding 6f- fact recorded by botfj concurrent finding of fact cannot b^ the ratio of law laid down in tli apptication in the instant case. is not sufficient proof under the !aw. sfs of the statement of the p'aintiff witifiesses of the loan-receipt, both the 1g of fact that the document in question |ie factum of giving loan of Rs.35,000/- also been proved on the basis of the The above finding is concurrent the Courts below and, therefore, questioned in the second appea! and |e above-menSoned citation has no On the aforesaid discussi< opinion that both the Courts below decreeing the suit of the plaintiff invotved for adjudlcation in this sec< !iab!e to be dismissed and is acco In the light of above order, for stay, I.A.No.2991/2005, an app| Code of Civil Procedure, I.A.No.} hearing and I.A.No.263/2006, an a|| disposed of. «PI«lCT<IllIIICTT^" fet^l •(Ri'^l'! ^Sl^fSI^V ans>, this Court is of the considered have not committed any illegality by bnd no substantial auestion of law is )nd appeal. In the result, the appeal is 1-dingly dismissed at the motion stage M.(C.)P.No.1631/2005, an application ication under Order 41 Rule 27 of the '992/2005, an appiication for urgent iplication for out of turn hearing, stand Sd/- Dh'7^ ra