Kartar Singh And Ors. vs Harbans Singh
1987 Latest Caselaw 200 Del

JUDGMENT

B.N. Kirpal, J.

(1) This is a regular second appeal challenging the decisions of the Courts below whereby suit filed by the respondent under Order 37 of the Civil Procedure Code was decreed in the sum of Rs. 3,340 with costs and future interest.

(2) The respondent filed a suit under Order 37 claiming that the appellant herein had issued a cheque dated 22nd December, 1977 for a sum of Rs. 3,000 in favor of the respondent. This cheque was stated to have been issued for consideration. It was alleged that this cheque, when presented to the banker's, was dishonoured on 23rd December, 1977. The suit was filed on 2nd November, 1979.

(3) The appellant herein was granted leave to defend. In the written statement which was filed it was contended that the cheque for Rs. 3,000 was issued by way of loan to the respondent. The case of the appellant was that he had not taken any loan from the respondent and that the suit had been filed by way of a counter-blast to arbitration proceedings which had been initiated by the appellant and which had resulted in an award being made in his favor and a decree in terms thereof being passed.

(4) The trial court, on the pleadings of the

(5) In support of this contention that Rs. 3,000 had been given by way of loan, the appellant herein relied on a document Ex.DW-3/1 purporting to be a receipt signed by the respondent. The respondent had not admitted the execution of this receipt. In order to prove the genuineness of the receipt the appellant herein submitted a report of the Handwriting Expert. The court sent the disputed receipt to the Central Forensic Science Laboratory. The report received from there was that the said receipt was not genuine. The trial court accepted this evidence and came to the conclusion that the appellant had not been able to prove that Rs. 3,000 had been advanced by way of loan. The trial court decided all the issues in favor of the respondent. A decree for Rs. 3,340 with costs and further interest at the rate of 6% was passed in favor of the respondent.

(6) The appellant herein then filed first appeal which was dismissed by the Additional District Judge by his judgment dated 17th January, 1985. Thereafter the present second appeal has been filed in this Court.

(7) It has been vehemently contended by the learned counsel for the appellant that the decision of the trial court and the lower appellate court is 205 perverse. It is submitted that the appellant herein had supplied clothes to the respondent on 22nd December, 1977 worth Rs. 3,000 and on 8th March, 1978 worth Rs. 2,309. When payment for the same was not made the appellant initiated arbitration proceedings which resulted in an award being passed against the respondent. That award was made the rule of the Court. When payment was not made, execution proceedings were initiated and a show cause notice was issued to the respondent as to why he should not be arrested. It is submitted by Mr. Rohtagi that on 2nd November, 1979, the respondent filed an application under Order 9 Rule 13 Civil Procedure Code for setting aside the ex parte decree, whereby the award was made the rule of a Court, and objections under Sections 30 and 33 of the Arbitration Act were also filed on that date. As a counter-blast to the proceedings which had been initiated by the appellant, it is contended, the respondent filed the present suit on 2nd November, 1979. It is further submitted by the learned counsel that a decree for Rs. 5,390 having been passed against the respondent and which have now been confirmed, the case of the respondent stood falsified. It may hereby mentioned that in his evidence the respondent had stated that he had given a uchanti loan of Rs. 6,000 to the appellant herein about 15 days prior to 22nd December, 1977. The respondent then wanted the repayment of this loan and the appellant is alleged to have given cloth worth Rs. 3,000 to the respondent Along with a cheque for Rs, 3,000. When the cheque was dishonoured, the respondent expected that the appellant will pay the money but when he failed to do so, the present suit was filed.

(8) Under Section 100 of the Civil Procedure Code, a second appeal is maintainable only if the case involves a substantial question of law. In the present case, the decisions of the courts below do not involve any question of law at all and certainly not a substantial question of law. Both the courts have found as a fact that the cheque for Rs. 3,000 was not given by way of loan by the appellant to the respondent. Even if it be assumed that this decision, on facts, is incorrect, nevertheless this will only mean that there has been an error of fact and if it was open to the appellant to persuade to this court to go into the facts, then he might have succeeded. The decisions of the courts below do not involve any substantial question of law at all. It will be seen that the case of the appellant as set out in the written statement was that Rs. 3,000 was given by way of loan to the respondent. Accordingly, issue was framed as to whether cheque for Rs, 3,000 was given by way of loan. This issue involved investigation of facts. The decision on the facts was that no such loan was given. The appellant herein never protested against the said issue being framed nor was there any contention raised regarding the onus of proof. Once the case set up by the appellant was not accepted, then the obvious conclusion which followed there from was that the cheque must have been issued for consideration and the same having been dishonoured, the respondent was entitled to a decree in his favor. Neither in the written statement nor in the grounds of appeal before the lower appellate court nor at the time of arguments before the lower appellant court were the contentions, which are sought to be raised before me by Mr. Rohtagi with regard to the arbitration award, ever raised. It is not open to the learned counsel for the appellant, therefore, to say that the decision of the trial court and the lower appellate court is perverse because it has ignored the effect of the decree passed by the subordinate courts making the award in favor of the appellant a rule of the court. If such a plea had been raised and the same not considered by the courts below then possibly the court would have been justified in interfering in this case. No such plea having been raised either in the trial court or in the lower appellate court, it cannot be permitted to be raised in the second appeal for the first time. On the evidence on record, it is not possible for me to come to the conclusion that the judgments of the courts below are perverse.

(9) In view of the fact that no substantial question of law arises, this appeal fails and is dismissed. The parties will, however, bear their own. costs.