Regular Second Appeal No. 530 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 530 of 2009 (O&M) Date of decision : July 09, 2010 Rakesh Kumar alias Labhu Ram ....Appellant versus Manmohan Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Tribhawan Singla, Advocate, for the appellant L.N. Mittal, J. (Oral) CM No. 1446.C of 2009 The application is allowed and delay of 191 days in refiling the appeal is condoned. RSA No. 530 of 2009 This is second appeal by plaintiff having remained unsuccessful in both the courts below. Appellant filed suit against respondent Manmohan Singh for recovery of Rs 7562/- alleging that defendant was engaged by the plaintiff for his saw mill on 24.3.2002 @ Rs 85/- per day as wages, for one year. It was agreed that if the defendant left the job before lapse of one year, he would pay Rs 1000/- as damages to the plaintiff. Conversely if the plaintiff Regular Second Appeal No. 530 of 2009 (O&M) -2- removed the defendant from job before the expiry of period of one year, the plaintiff would pay Rs 1000/- as damages to the defendant. The defendant also received Rs 5500/- as advance from the plaintiff vide writing dated 24.3.2002. The defendant failed to pay the said amount or interest thereon. Notice dated 11.1.2005 was also served on the defendant but to no effect. The plaintiff claimed interest @ 12.5% per annum for pre-suit period amounting to Rs 2062/-. Accordingly, suit for recovery of Rs 5500/- as principal amount and Rs 2062/- as interest i.e. total amount of Rs 7562/- was filed by the plaintiff. The defendant, inter-alia, pleaded that he had taken Rs 500/- as advance vide writing dated 24.3.2002 and the plaintiff by tampering the said figure in the writing added digit '5' before the figure Rs '500'. The defendant also pleaded that he worked at the saw mill of the plaintiff for two years since 1.4.2002 and the advance amount of Rs 500/- taken by the defendant from the plaintiff was deducted out of his wages and nothing was due. The defendant pleaded that in fact he is witness to pronote-cum- receipt dated 6.5.2004 vide which plaintiff borrowed Rs 40,000/- from one Raghbir Singh who has filed suit for recovery of the said amount against the plaintiff and in order to pressurize the defendant to give false evidence in that case, the plaintiff has filed this suit. Learned Civil Judge (Junior Division), Barnala vide judgment and decree dated 14.12.2006 dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed by learned Additional District Judge, Barnala vide judgment and decree dated 8.12.2007. Feeling aggrieved, the plaintiff has preferred the instant second appeal. Regular Second Appeal No. 530 of 2009 (O&M) -3- I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that merely on perusal of writing dated 24.3.2002 with naked eye, the courts below could not conclude that the said writing had been tempered with to make the figure of Rs '500' to Rs '5500' by adding digit '5' and no expert witness was examined by defendant in support of this plea raised by the defendant. The contention cannot be accepted. Some times, tampering may be so crude and naked that it may be apparent to the naked eye even to a layman. No expert witness may be required in such cases to be examined regarding tampering of a document. In the instant case, both the courts below have perused the writing in question and have arrived at concurrent finding about the aforesaid tampering. Consequently, the aforesaid contention cannot be accepted and no question of law arises for determination from this contention. In addition to the aforesaid, there are other circumstances also corroborating aforesaid conclusion of the courts below that the writing had been tempered with. It was not the case of the plaintiff that defendant left the plaintiff's job before expiry of one year because in that event, the plaintiff would have claimed Rs 1000/- as damages as agreed between the parties. It is also not the plaintiff's case that he had removed the defendant from the job before expiry of one year because in that event, the plaintiff would have to pay Rs 1000/- as damages to the defendant. On the contrary, it is specific case of the defendant that he had served the plaintiff for two years. The said plea of the defendant has been upheld by the courts below Regular Second Appeal No. 530 of 2009 (O&M) -4- on the basis of evidence produced on the record. Plaintiff's own witness Naki Singh PW1 stated that plaintiff is maintaining attendance register and the plaintiff used to mark attendance of his employees in the register. The said register has not been produced, giving rise to adverse inference against the plaintiff. It, thus, emerges that the defendant remained in service of the plaintiff for two years as pleaded by him. For this reason as well, the plaintiff's version cannot be accepted that the amount of Rs 5500/- allegedly taken as advance by the defendant had not been deducted by the plaintiff. On the other hand, the plaintiff filed the suit on the last day of limitation i.e. when limitation period of three years from the date of writing dated 24.3.2002 was going to expire. The defendant had left plaintiff's job almost a year before it. The plaintiff never demanded any amount from the defendant except by serving notice dated 11.1.2005 only. On the other hand, the plaintiff admitted that he had borrowed Rs 40,000/- from Raghbir Singh vide pronote and receipt to which defendant is a marginal witness. This circumstance further corroborates defendant's version. It may also be added that the plaintiff has also claimed interest although it is not even the plaintiff's case that the defendant had agreed to pay interest on the amount advanced by the plaintiff. Instant second appeal is not maintainable. Under section 96 of the Code of Civil Procedure, even first appeal was not maintainable except on question of law, as the suit amount was less than Rs 10,000/-. There is concurrent finding of fact recorded by courts below against the plaintiff. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in second appeal. Regular Second Appeal No. 530 of 2009 (O&M) -5- No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. The appellant should have been subjected to costs for filing this frivolous appeal but keeping in view the petty amount involved, I am refraining myself from imposing any costs on the appellant. ( L.N. Mittal ) July 09, 2010 Judge 'dalbir'