RSA No. 145 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.145 of 2011 (O&M) Date of decision: 08.11.2011 Sarwan Singh ……Appellant/Plaintiff Versus Dilbagh Singh and another …….Respondents/defendants CORAM : HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. V.S. Saini, Advocate, for the appellant. ***** A.N. Jindal, J. Civil Judge (Junior Division), Rajpura, vide judgment & decree dated 17.02.2009, decreed the suit of the plaintiff-appellant (hereinafter referred as ‘the plaintiff’) for a sum of Rs.2,50,000/- along with interest at the rate of 6% per annum, which was challenged by the defendants- respondents (hereinafter referred as ‘the defendants’)by way of two separate appeals, whereupon vide judgment dated 17.08.2010, the first Appellate Court while accepting the appeal, dismissed the suit. Factual background of the case is that the plaintiff instituted a suit for recovery of ` 3,20,000/- on the allegations that in the first week of April, 1998, defendants approached the plaintiff that they would send his grandsons namely Parminder Singh and Sukhwinder Singh to Germany, if a sum of ` 2,50,000/- is paid to them. Then after few days, in the month of 1 RSA No. 145 of 2011 (O&M) April, 1998, the defendants again approached the plaintiff and represented that the visa facility to Germany was available and he should handover the passports of his grandsons along with a sum of ` 50,000/-. Upon this, the plaintiff, in the presence of his grandsons, handed over a sum of ` 50,000/- to the defendants along with their passports.Thereafter, the defendants again approached the plaintiff while stating that the visa has been obtained and he should pay ` 2,00,000/- to them, if he wanted to send his grandsons abroad. Then, on the advice of his grandsons, the plaintiff, after entering into the agreement of mortgage of 7 Bighas 6 Biswas of land in favour of Santokh Singh and Khan Singh for a sum of `2,30,000/- and after receiving a sum of ` 2,00,000/- as earnest money on 04.05.1998 under the said agreement, paid the same on 06.05.1998 to the defendants in the presence of his grandsons at the shop of defendant No.2 at Focal Point, Rajpura. Thereafter, defendants took them to Delhi on the pretext that they would be sent abroad. The grandsons of the plaintiff were kept in Neelam Hotel at Delhi. Thereafter, the defendants started saying that Paramjit Singh was physically weak and of lesser age, therefore, he cannot be sent abroad and only Sukhwinder Singh would be sent. Then after two weeks from 06.05.1998, the defendants sent both of his grandsons back and also did not return the money. An FIR No. 75 dated 29.04.1999 under Sections 406 & 420 IPC was registered against the defendants. Thus, the plaintiff sought repayment of the amount paid to them. The defendants in their written statement denied all the allegations, including that they had received any amount of ` 50,000/- or ` 2,00,000/- from the plaintiff and if they had promised to send his grandsons abroad. 2 RSA No. 145 of 2011 (O&M) From the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendants borrowed a sum of ` 2,50,000/- from the plaintiff on the pretext that they would send his grandsons abroad, but they failed to send them, as such, the plaintiff is entitled to get ` 3,20,000/- along with interest from the defendants? OPP 2. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 3. Whether plaintiff has no locus standi to file the present suit? OPD 4. Whether plaintiff has no cause of action against the answering defendants, therefore, plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD 5. Relief.” Both the parties led evidence. The trial Court partly decreed the suit of the plaintiff. However, the first Appellate Court vide judgment dated 17.08.2010 reversed the judgment and dismissed the suit. The present case pertains to two transactions; one relating to ` 50,000/- and the other relating to ` 2,00,000/-. No document indicating the fact that the defendants had received a sum of ` 50,000/- or ` 2,00,000/- at any point of time, has been placed on record. Though, the plaintiff has tried to prove the agreement of mortgage, Ex.P1 and receipt of ` 2,00,000/- as earnest money from the said mortgagee, yet no evidence has been produced to prove the fact that such amount was paid to the defendants. No specific time has been given when this amount was paid to the defendants. During the cross-examination, Parvinder Singh (PW-3), has stated that they had demanded receipt from the defendants regarding the money received by them, but they were assured that there was no requirement to issue any receipt, as they would get their work done. Plaintiff, during his cross- examination, has testified that he had borrowed a sum of Rs.50,000/- from the Commission Agent for payment to the defendants, but no document 3 RSA No. 145 of 2011 (O&M) indicating such transaction has been proved on the record. No documentary evidence has been produced with regard to taking of the grandsons of the plaintiff to Delhi and with regard to their stay in the Hotel. The plaintiff has led evidence that the defendants had also taken the passports of his grandsons and the same have not been returned despite the demand made by him. But, it is emanating from the cross-examination of Parvinder Singh (PW-3), who is grandson of the plaintiff, that he had visited Dubai and another grandson of the plaintiff has been in Germany for the last 9 months. However, they have tried to build a case, showing that they had got prepared fresh passports, but no such evidence has been led that they had gone to Dubai or Germany on the fresh passports. In these set of circumstances, it would be concluded that the findings returned by the first Appellate Court are based on sound reasons appealing to the conscience of the Court. As such, in the absence of any evidence regarding payment of money to the defendants, it is difficult to hold their liability. No question of law, much less substantial question of law, arises for determination by this Court. Resultantly, finding no merit in the appeal, the same is hereby dismissed in limine. (A.N.Jindal) November 8, 2011 Judge ajp 4