RSA No.4161 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4161 of 2008 (O&M) Date of decision: 18.12.2008 Pavitar Singh ......Appellant Versus Raj Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ajay Pal Singh, Advocate for the appellant. * * * Rakesh Kumar Garg, J. CM No.12449-C of 2008 For the reasons mentioned in the application the same is allowed. The applicant-appellant is permitted to make good the deficiency in the Court fee. CM No.12450-C of 2008 For the reasons recorded in the application, delay of 129 days in refiling the appeal is condoned. CM stands disposed of. RSA No.4161 of 2008 This is defendant’s second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent for recovery of Rs.1,37,000/- along with interest at the rate of 12% per annum from the date of execution of the pronote and receipt till the date of decree and further interest at the rate of 6% per annum from RSA No.4161 of 2008 (O&M) 2 the date of decree till realization thereof, with proportionate costs, has been decreed. The plaintiff filed a suit for recovery of Rs.2,10,000/- (which includes principal amount of Rs.1,37,000 and interest of Rs.73,000/- (for the period 11.2.1997 to 10.2.2000) at the rate of 18% per annum) against the defendant on the basis of pronote and receipt dated 11.2.1997 alleging that the defendant had borrowed a sum of Rs.1,37,000/- from the plaintiff and in lieu thereof executed pronote and receipt in favour of the plaintiff thereby agreeing to repay the same with interest at the rate of 18% per annum. However, the defendant failed to repay any amount either towards principal or interest on demand made by the plaintiff. Hence, the suit. On notice of the suit, the defendant appeared and filed written statement having denied the raising of any loan amount from the plaintiff and having executed pronote and receipt in question. The defendant described the pronote and receipt in question as forged and fabricated documents. Dismissal of the suit was prayed for. On the basis of the evidence led by the parties, the trial Court observed that defendant had executed pronote Ex.P1 and receipt Ex.P2 on 11.2.1997 and having received the consideration of Rs.1,37,000/- in the presence of the marginal witness, he is entitled to recover the amount along with interest at the rate of 12% per annum from the date of execution of pronote and receipt till the date of decree with future interest at the rate of 6% per annum. The plea of the defendant that pronote and receipt is forged and fabricated documents was held against him. Consequently, on the basis of the findings as aforesaid, the trial Court decreed the suit of the plaintiff. Feeling aggrieved by the impugned judgment and decree of the trial Court, the defendant preferred an appeal which was dismissed by RSA No.4161 of 2008 (O&M) 3 the District Judge, Sangrur vide impugned judgment and decree dated 19.3.2008. Still not satisfied, the defendant-appellant has filed the present appeal challenging the aforesaid judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have erred in law while decreeing the suit of the plaintiff- respondent as the execution of the pronote and receipt in question has not been proved in accordance with law. Elaborating further, learned counsel for the appellant has argued that the appellant had examined the expert witness Dr.Inderjit Singh as DW-2 who was cross-examined upto some extent by the plaintiff-respondent. However, thereafter the said witness never turned up in the Court and it was the duty of the Court to summon the said witness if he was not coming on the request of the appellant. However, the said witness while appearing in the witness box as DW-2 has specifically averred that disputed signatures do not tally with the standard signatures. The Courts below have illegally ignored the evidence of said witness produced by the appellant. Not only this, even the respondent had not produced any handwriting expert in rebuttal to prove the signatures and therefore, the findings returned by both the Courts below are liable to be set aside. Learned counsel has also relied upon the judgment of the Apex Court titled as Rajinder Pershad (Dead) by L.Rs v. Darshana Devi 2001 (2) Apex Court Journal 463 (SC) in support of his case to contend that in the absence of cross-examination on a point, the statement of the witness in examination-in-chief is to be taken to be true. I have heard learned counsel for the appellant. Undisputedly DW-2 Dr. Inderjit Singh was cross-examined to the limited extent and his further cross-examination was deferred on RSA No.4161 of 2008 (O&M) 4 28.10.2004 but thereafter, the said witness was never produced by the defendant although on his request the case was adjourned six times to enable him to produce the aforesaid witness and the witness was not produced. Having availed of ample opportunities, the Court was left with no alternative but to close the evidence by order on 8.6.2005. It is also not in dispute that the aforesaid order of the trial Court closing the evidence of the defendant was never challenged by him. It is also not disputed that the appellant never requested the Court to ensure the presence of the witness DW-2 through the process of the Court. Thus, in these circumstances, the appellant cannot take advantage of his own fault. It is well settled that difficulty of producing evidence cannot be a substitute for evidence. The fact remains that the averment in the affidavit, which was submitted in his examination-in-chief, could not be decided by cross-examination and as such, it is not possible to say that any illegality was committed by the Courts below in disregarding the statement of the witness in his examination-in-chief by way of affidavit. No examination of a witness can be completed if the adverse party is illegally refused permission to cross- examine him or the party calling him is refused permission to re-examine him. Examination of a witness means, as laid down in Section 137 of the Evidence Act, his examination-in-chief, his cross-examination and his re- examination. It follows that the provision for a witness to be examined means not only that he shall be examined in-chief but also that he should be permitted to be cross-examined and re-examined. A Division Bench of Lahore High Court in the case of Diwan Singh and others v. Emperor AIR 1933 Lahore 561 has held as under: “No general rule can be laid down in respect of unfinished testimony. If it is substantially complete and the witness is prevented by sickness or death or other RSA No.4161 of 2008 (O&M) 5 causes (mentioned in Section 33) from finishing his testimony, whether viva voce or by deposition it ought not to be rejected entirely. But if not so far advanced as to be substantially complete it must be rejected.” In the present case, it is not the case of the appellant that the testimony of the witness was substantially completed and he was prevented by any cause i.e. he was prevented by sickness, death or other causes (as mentioned in Section 33) of the Evidence Act from finishing his testimony. Therefore, in view of the law laid down as stated above, the contention raised by the learned counsel is liable to be rejected. In the case of State of Uttar Pradesh v. Nahar Singh and others 1998(3) SCC 561, the Apex Court has authoritatively laid down that principle of Section 138 of the Indian Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party and the scope of Section 138 is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned to test his veracity and the same cannot be denied to the opposite party. The judgment in the case of Rajinder Pershad (supra) is not applicable to the facts and circumstances of the present case. In fact, in the said case, the witness was examined but was not cross-examined on a specific point and in the absence of cross-examination of the witness on that crucial point, his statement in examination-in-chief was relied upon and in those circumstances, the Hon’ble Supreme Court held that the statement of a witness on the point in examination-in-chief, of which he has not been examined, despite the opportunity is to be taken to be true whereas in the present case the opposite party has not been given the full opportunity to cross-examine the witness and therefore, the Courts below were right in law while ignoring the evidence of DW-2. RSA No.4161 of 2008 (O&M) 6 For the reasons recorded above, I find no infirmity or illegality in the impugned judgment and decrees of the Courts below. No substantial question of law arises. Dismissed. December 18, 2008 (RAKESH KUMAR GARG) ps JUDGE