Regular Second Appeal No.1776 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1776 of 2011 Date of Decision:-29.8.2011 Smt.Savita Dhawan and another ---Appellants Versus Bakha Singh ---Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Jagdish Manchanda, Advocate for the appellants. M ehinder S ingh S ullar , J. (Oral) The crux of the facts, which requires to be noticed for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Smt.Savita Dhawan wife of Rakesh Kumar proprietor of and M/s Dhawan Enterprises appellant-plaintiffs (for brevity “the plaintiffs”) filed the suit against Bakha Singh respondent-defendant (for short “the defendant”) for a decree of recovery of ` 76,080/- ( ` 66,156.56 plus interest of ` 9923.44), inter-alia pleading that plaintiff No.1 is running the business of commission agent under the name and style of plaintiff No.2. The defendant was stated to have borrowed a sum of ` 66156.56 P in cash on different dates. He also sold his agricultural produce in the shop of the plaintiffs and amount of his sale proceeds was stated to have been adjusted in his account. Lastly, an amount of `66156.56 P was claimed to be due towards the defendant and plaintiffs are entitled to interest at the rate of 2% per month on it prevalent in the grain market. The plaintiffs requested the defendant to make the payment, but in vain, which necessitated them to file the suit. On the basis of aforesaid allegations, the plaintiffs filed the suit seeking a decree for recovery against the defendant, in the manner described hereinbefore. 2. The defendant contested the suit and filed the written statement, Regular Second Appeal No.1776 of 2011 (O&M) -2- inter-alia raising certain preliminary objections of, maintainability of the suit, jurisdiction of the civil Court, cause of action and locus standi of the plaintiffs. The firm of the plaintiffs was stated to be unregistered and is not legally competent to file the suit through its partner and their suit was claimed to be barred under the provisions of the Haryana Relief of Agricultural Indebtedness Act, 1989. 3. The case set up by the defendant, in brief in so far as relevant, was that no such firm is in existence. However, one Rakesh Kumar used to sit in the shop and deals with the agriculturists, who sell their produce. He (defendant) never took any loan, so question of adjustment of sale price of agricultural produce did not arise at all. The allegation of cheating has also been levelled against Rakesh Kumar. In all, according to the defendant that neither he took any loan nor signed any document. However, he used to put his thumb impressions, while receiving the sale price of his agricultural produce. It was explained that since Rakesh Kumar started paying less amount, so, the defendant stopped selling his agricultural produce at his shop. Said Rakesh Kumar filed this fictitious suit, in order to put pressure on the defendant to sell his agricultural produce in his shop. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 5. The parties to the lis, produced on record the oral as well as documentary evidence, in order to substantiate their respective pleaded stands. 6. The trial Court decreed the suit of the plaintiffs for principal amount of ` 66,156.56 P alongwith interest at the rate of 6 % per annum, by virtue of judgment and decree dated 2.8.2010. 7. Aggrieved by the decision of the trial Court, the defendant filed the Regular Second Appeal No.1776 of 2011 (O&M) -3- appeal, which was partly accepted. The first appellate Court modified the decree of the trial Court and decreed the suit of the plaintiffs for recovery of ` 12,800/- with pendente-lite and future interest at the rate of 6% per annum, by means of impugned judgment and decree dated 18.12.2010. 8. The appellant-plaintiffs did not feel satisfied with the impugned judgment and decree of the 1st Appellate Court and preferred the present regular second appeal. 9. After hearing the learned counsel for the appellant-plaintiffs, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 10. Ex facie, the argument of learned counsel that since the plaintiffs have duly proved the account books that the defendant borrowed a sum of ` 66156.56 P, so, the first appellate Court committed a legal mistake in partly decreeing their suit for recovery of ` 12,800/-, sans merit. 11. As is evident from the record that the plaintiffs based their claim for recovery of the impugned amount on the basis of bahi entries (Ex.P1 to P16 & Ex.P20 to P23), which allegedly bear the thumb impressions of the defendant regarding loan taken by him from time to time. The Ist appellate Court noticed that the total amount of indicated bahi entries comes to ` 1,09,580/-, whereas, the plaintiffs filed the suit only for the recovery of ` 66156.56 P. It is not a matter of dispute that plaintiffs produced handwriting and finger print expert R.V.Vashista as PW8, who submitted his report (Ex.PW8/B) after comparison of disputed thumb impressions with the admitted thumb impressions. As per report (Ex.PW8/B), the disputed thumb impressions on bahi entries (Ex.P1, Ex.P7, Ex.P12 to Ex.P14, Ex.P17 and Ex.P20) are not fit for comparison, whereas the remaining thumb impressions on the bahi entries (Ex.P2 to Ex.P6, Ex.P8 to Ex.P11, Ex.P15, Ex.P18 and Ex.P19) amounting to ` 12,800/- have tallied. 12. Not only that, plaintiff Savita Dhawan did not dare to step into the Regular Second Appeal No.1776 of 2011 (O&M) -4- witness box and the deposition of her husband as attorney regarding outstanding amount is meaning less as he was not present at the relevant time, not conversant with the record and has no personal knowledge of loan transactions on various dates. In this manner, the first appellate Court has rightly negatived the remaining claim of the plaintiffs, through the medium of impugned judgment dated 18.12.2010, which in substance, is (para 10) as under:- “xxx xxx xxx xxxx xxxx xxx Further, according to the case of the plaintiffs-respondents, relevant bahi entries are Ex.P1 to Ex.P16 and Ex.P20 to Ex.P23, vide which, the total amount of Rs.1,09,580/- was advanced to the defendant-appellant. Out of the said amount, according to the plaintiffs-respondents, some amount was adjusted towards the sale proceeds of the agricultural produce brought by the defendant-appellant for sale in the commission agency of the plaintiffs- respondents, and, thus, according to the plaintiffs-respondents, a sum of Rs.66,156.56 paise remained outstanding as principal, regarding which, the present suit has been filed. This bahi entries Ex.P1 to Ex.P16 and Ex.P20 to Ex.P23 were got compared by the plaintiffs-respondents through their expert Shri R.V.Vashista, Handwriting and Fingerprints expert, who has appeared as PW8 and he has also tendered his report in evidence as Ex.PW8/B. The said report is conclusive between the parties. By way of the said report Ex.PW8/B, said expert of the plaintiffs-respondents has concluded that thumb impressions on the bahi entries Ex.P1, Ex.P7, Ex.P12, Ex.P13, Ex.P14, Ex.P17 and Ex.P20 are not comparable with the standard thumb impressions of the defendant-appellant. The said entries pertain to the amount of Rs.92,200/-. However, the thumb impressions of the defendant-appellant on the remaining bahi entries Ex.P2 to ExP6, Ex.P8 to Ex.P11, Ex.P15, Ex.P16, Ex.P18 and Ex.P19 tallied with the standard thumb impressions of the defendant-appellant. The said entries are in respect of the total amount of Rs.12,800/-. Since the plaintiffs- respondents have proved thumb impressions of the defendant-appellant only on the said bahi entries amounting to Rs.12,800/-, the defendant- appellant would indeed be liable to pay the said amount only. The liability of the defendant-appellant in respect of the remaining amount is not proved by the plaintiffs-respondents. In normal course, no doubt, account books maintained in the regular course of business could be made the basis to hold liability, provided there had been corroboration to the same. In the Regular Second Appeal No.1776 of 2011 (O&M) -5- present case, however, there is no corroboration to the said bahi entries, regarding which, there are unproved thumb impressions. The plaintiff- respondent Savita Dhawan has not herself appeared in the witness box and her husband Rakesh Kumar had no personal knowledge of the said loan and, therefore, his testimony would be of no consequence to fasten the defendant-appellant with liability.” 13. The learned counsel for the appellant-plaintiffs did not point out any material, much less cogent, to contend as to how and in what manner, the impugned judgment and decree of the Ist appellate Court are illegal and would invite any interference in this relevant behalf. 14. Meaning thereby, the Ist appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, it has recorded the above-mentioned findings of fact. Such findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant- plaintiffs, so, the impugned judgment of Ist appellate Court deserves to be and is hereby maintained under the present set of circumstances. 15. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiffs to assail the findings of the Ist appellate Court in this respect. All other arguments, relatable to the appreciation of evidence, now sought to be urged on his behalf, in this relevant direction, have already been duly considered and dealt with by the Ist appellate Court. 16. Above-all, the entire case revolves around the re-appreciation and re- appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved, so, no interference is warranted in the impugned judgment and decree of the Ist appellate Court, in view of the law laid down by Hon'ble Apex Court in Regular Second Appeal No.1776 of 2011 (O&M) -6- case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, in the obtaining circumstances of the present case. 17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants. 18. In the light of aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. (Mehinder Singh Sullar) 29.8.2011 Judge AS Whether to be referred to reporter?Yes/No