RSA No. 3669 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3669 of 2008 Date of Decision: September 02, 2009 M/s Bahadur Singh & Co. ...... Appellant Versus Karnail Singh ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Rajneesh Narula, Advocate for the appellant. Mr. Vijay Lath, Advocate with Mr. Naveen Sharma, Advocate for the respondent. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent for recovery of a sum of Rs. 2, 62, 314/- with interest. Both the Courts found that the appellant had signed the receipt Ex.P1 at two places after comparing his signatures on his affidavit as well as at the foot of the statement he made in Court. The following questions have been proposed:- i) Whether the receipt Ex.P1 is admissible in evidence without producing any witness or the person who has written and signed the same? ii)Whether the signatures on Ex.P1 can be believed to be RSA No. 3669 of 2008 2 correct without there being any report of any handwriting expert? iii)Whether a suit for recovery can be decreed without proof of payment and production of account statement and proof of mode of payment? The only question of law is question No.(i). Learned counsel has argued that the plaintiff in his statement did not positively state that the receipt on which he had placed reliance was executed by the appellant in his presence. Further states that the plaintiff-respondent admitted that the document was scribed by the clerk of the appellant. The argument raised is that in these circumstances his statement could not be looked into since the conditions of Section 67 of the Evidence act have not been fulfilled. In this regard learned counsel has relied upon the case of Narbada Devi Gupta v. Birendra Kumar Jaiswal reported as 2004(1) Civil Court Cases 337 wherein the Hon'ble Supreme Court has held as follows:- “16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons(P) Ltd., (supra). The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue.' The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions o the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated o RSA No. 3669 of 2008 3 have been exhibited as an admitted documents.” With regard to this both the Courts have noticed that in fact the written statement of the appellant was never signed by him. Learned counsel argued that it was signed by the Advocate. However, there is also a finding of fact that no power of attorney was executed by the appellant in favour of his counsel before the trial Court. In these circumstances it can be held that in fact there is no denial to the averments made in the plaint. Learned counsel has argued that once the appellant was examined as a witness and fully cross-examined this technical lapse of not consigning the written statement cannot be held against him. Even if this is accepted I find no infirmity in the finding of the learned lower courts on issue No.1. Though in his statement the respondent has not categorically stated that the appellant appended his signatures in his presence yet the whole tenor of his statement suggests that the receipt was executed in his presence. It is mentioned that the respondent had deposited Rs. 1,68,647/- and also an amount of Rs.30,000/- and that the appellant had given the receipt after signing the same. Thus, it cannot be held that the requirements of Section 67 have not been complied with. Questions No. (ii) and (iii) are pure questions of fact. Learned counsel has not been able to persuade me that the findings thereon are either based on no evidence or on such misreading of the evidence so as to render them perverse. Apart from these questions learned counsel has also argued that the suit was barred by limitation since the receipt is dated 1.6.99 but the suit was filed only on 29.5.2003. I, however, find that the Courts below have correctly considered the subsequent receipt dated 1.6.2000, an acknowledgment of the earlier amount which would have thus extended the RSA No. 3669 of 2008 4 period of limitation. Consequently this appeal as well as application for stay are dismissed. No costs. (AJAY TEWARI) JUDGE September 02, 2009 sunita