R.S.A. No. 1475 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1475 of 2009 (O&M) Date of Decision : 15.4.2009 Avtar Singh .......... Appellant Versus Gurmail Singh ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. K.S. Sivia, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 4391-C of 2009 This is an application under Order 41 Rule 1 read with Section 151 of the Code of Civil Procedure for permission to file the appeal in forma pauperis as an indigent person. It is averred in the application that after verification the learned lower appellate Court had permitted the appellant to file the appeal in forma pauperis, and that he has not acquired any additional means since the disposal of the appeal. The application is supported by an affidavit. The C.M. is allowed. The applicant-appellant is permitted to file this appeal in forma pauperis as an indigent person. R.S.A. No. 1475 of 2009 This regular second appeal is directed against the judgment and R.S.A. No. 1475 of 2009 2 decree dated 31.1.2009 passed by the learned Courts below vide which suit filed by the plaintiff / respondent for recovery on the basis of pronote and receipt stands decreed. The plaintiff / respondent brought a suit on the allegation that on 6.5.2001, the defendant took a sum of Rs. 10,00,000/- (Rupees ten lacs) as cash loan from the plaintiff at Muktsar against pronote and receipt, duly signed by the appellant / defendant. The loan was given in presence of witnesses i.e. Amarjit Singh and Mandip Singh, who attested the pronote and receipt as attesting witnesses. It is also the case set up by the plaintiff, that it was agreed that amount would be repaid with interest @ 2% per annum on demand but the defendant failed to repay the amount though demanded. The suit was contested by the defendant / appellant by raising a plea that pronote and receipt were forged and fabricated. It was also the plea of the appellant / defendant that Balkaran Singh relation of defendant was agriculturist. About five years ago, he wished to start commission agency business with Buta Singh son of Gurdial Singh, Brar Enterprises, New Grain Market, Muktsar. In order to facilitate the arrangement the defendant / appellant executed certain documents as surety, so that the transactions may take place with commission agency. It was the case set up by the defendant / appellant that blank signed papers, might had been used to prepare, the pronote and receipt, for filing the suit. Preliminary objections were also raised qua suit filed. R.S.A. No. 1475 of 2009 3 The learned Courts below on appreciation of evidence and especially keeping in view that execution of the pronote and receipt was proved to have been signed by the defendant / appellant, decreed the suit with interest @ 6% per annum. The concurrent findings recorded by the learned Courts below are be challenged on the plea, that the appeal raises the following substantial questions of law :- 1. Whether the non-filing of replication / rejoinder amounts to admission of the facts pleaded in the written statement ? 2. Whether the judgment and decree passed by the learned Courts below are outcome of misreading of evidence and, thus, perverse ? In support of the first substantial questions of law the learned counsel for the appellant contends that the plaintiff / respondent did not file replication to the pleas raised in the written statement and, therefore, the stand taken by the defendant stood proved by admission. The learned Courts below were, therefore, wrong in decreeing the suit filed by the plaintiff / respondent. The contention raised by the learned counsel for the appellant cannot be accepted. The filing of replication is not a matter of right, merely because, replication is not filed to the written statement, does not mean an admission by the plaintiff, as contended. The defendant / appellant is required to prove the case set up in the written statement by leading cogent evidence. R.S.A. No. 1475 of 2009 4 In the case the plaintiff proved the due execution of pronote and receipt and also proved the passing of consideration. Whereas the evidence led by defendant / appellant was not believed by the learned Courts below, and onappreciation of evidence, held that the plaintiff proved his case and decreed the suit. The plea, therefore, raised by the learned counsel for the appellant deserves to be rejected. In support of the second substantial question of law, it is contended that the learned Courts below have misread the evidence to arrive at a conclusion that the loan was advanced to the defendant / appellant. The contention raised is that the plaintiff / respondent admitted in cross- examination that the appellant was not known the plaintiff earlier, thus, there was no possibility of advancing the loan. The contention of the learned counsel for the appellant is misconceived. It was for the appellant / defendant to explain under what circumstances the pronote and receipt were signed by him when it was proved that the pronote as well as receipt were signed by the defendant / appellant. The presumption drawn in view of the admitted document cannot be said to be outcome of misreading of evidence. The learned counsel for the appellant further contended that though the pronote and receipt was signed on 6.5.2001 but the case was filed only on 29.11.2003, therefore, it could not be believed that the transaction had actually taken place. This plea is also totally misconceived. Plaintiff could file a suit R.S.A. No. 1475 of 2009 5 within the period prescribed under the Limitation Act and admittedly the suit was filed within three years of cause of action. The presumption claimed, thus, is totally misconceived. Lastly, it was contended by the learned counsel for the appellant that the pronote and receipt were written by the Munim, therefore, the document could not be believed. This contention is again misconceived. Normally the documents are written by Munim and there is nothing strange in the pronote and receipt having been written by Munim once they were admitted to be signed by the defendant / appellant. The findings recorded by the learned Courts below are based on appreciation of evidence, which do not call for any interference by this Court. No merit. Dismissed. However, the impugned part of order of the learned lower appellate Court, ordering recovery of Court fee, from the appellant cannot be sustained, as he was permitted to file the appeal as an indigent person. 15.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE