RSA No.944 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.944 of 2010 (O & M) Date of Decision: 18.05.2011 Mohinder Kaur ……Appellant Versus Sheel Narang …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Mohit Jagi, Advocate for the appellant. Mr. R. L. Batta, Sr. Advocate with Mr. Nikhil Batta, Advocate for the respondent. Respondent also in person. L.N. MITTAL, J (ORAL) Defendant-Mohinder Kaur, who was successful in the trial Court, but has been unsuccessful in the lower appellate Court, has filed the instant second appeal. Respondent-plaintiff-Sheel Narang filed suit against defendant-appellant for recovery of Rs.50,000/- alleging that plaintiff had received Rs.73000/- as compensation for the death of her husband in accident. Respondent stood surety for withdrawal of the said compensation amount by the plaintiff from the Claims Tribunal. The parties were known to each other. Defendant demanded RSA No.944 of 2010 (O & M) - 2 - Rs.50000/- from the plaintiff as loan because defendant was constructing her house. On account of the obligation of the defendant that she had stood surety for the plaintiff, the plaintiff advanced Rs.50000/- to the defendant on 08.07.2004. Defendant executed pronote for the same which was witnessed by Mohan Kaur and Bhag Singh. The defendant agreed to repay the loan after six months i.e. upto 08.01.2005. However, since the defendant failed to do so, plaintiff filed suit for recovery of the loan amount of Rs.50000/-. Defendant admitted that she stood surety for the plaintiff for withdrawal of the compensation amount. However, the defendant broadly denied other plaint averments. It was pleaded that the defendant never demanded money from the plaintiff for construction of house nor executed any pronote. The pronote is on a simple paper and is not sufficiently stamped. It was not signed by the defendant. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ropar vide judgment and decree dated 30.10.2008 dismissed the plaintiff’s suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Rupnagar vide judgment and decree dated 11.01.2010 and thereby suit filed by plaintiff stands decreed. Feeling aggrieved, defendant has filed the instant second appeal. RSA No.944 of 2010 (O & M) - 3 - Pursuant to order of the preceding date, respondent is present in person to explore the possibility of amicable settlement, but counsel for the appellant states that he has instructions from the appellant that the case cannot be settled amicably. Accordingly, I have heard learned counsel for the parties on the merits of the case and perused the case file. The plaintiff in order to prove her case herself stepped into the witness box as PW-2 and broadly stated according to her version. The plaintiff also examined Bhag Singh PW-1 attesting witness of the pronote. He has also supported the plaintiff’s version. On the other hand, the defendant appeared as her own witness and did not lead any other evidence. Plaintiff’s case is corroborated by the testimony of Bhag Singh attesting of the pronote. Plaintiff’s evidence has been found to be cogent by the lower appellate Court. The same has not been rebutted by the defendant because the defendant in her affidavit of examination-in-chief did not even state that she had not taken any loan from the plaintiff or that she had not executed the aforesaid pronote. The defendant rather affirmed that she had not demanded any money from the plaintiff for construction of her house and that the pronote is on simple paper and not on stamp paper. However, the defendant failed to rebut the plaintiff’s evidence regarding advancement of loan and execution of the impugned pronote for the RSA No.944 of 2010 (O & M) - 4 - loan amount. In cross-examination, of course the defendant stated that the impugned pronote has not signed by him. However, this statement in cross-examination is not sufficient to rebut the plaintiff’s evidence. Learned counsel for the appellant vehemently contended that the pronote is insufficiently stamped. However, objection to this effect was not taken when the pronote was exhibited in evidence. Consequently in view of Section 36 of the Indian Stamp Act, 1899, this objection cannot be raised at later stage. In this view, I am supported by judgment of Hon’ble Supreme Court in the case of Shyamal Kumar Roy versus Sushil Kumar Agarwal, AIR 2007 Supreme Court 637. Learned counsel for the appellant contended that plaintiff was cross-examined regarding stamps affixed on the pronote. However, admission of the pronote in evidence was not objected to on the ground of deficiency of stamps. Consequently, Section 36 of the Indian Stamp Act is attracted and this objection cannot be entertained later on. There is finding of fact recorded by the lower Appellate Court which is final Court of fact. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. This appeal RSA No.944 of 2010 (O & M) - 5 - does not raise any question of law, much less substantial question of law for determination. On the contrary, fate of the lis depends on finding of fact. Accordingly, I find no merit in this second appeal which is, therefore, dismissed. (L. N. MITTAL) JUDGE 18.05.2011. A.kaundal