Delhi High Court
Ram Avtar vs Krishan Pal on 26 February, 2013
Author: V.K.Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. NO.96 OF 2012
Decided on : 26th February, 2013
RAM AVTAR ...... Appellant
Through: Ms.Jyotsana Gupta, Advocate.
Versus
KRISHAN PAL ...... Respondent
Through :
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant against the
order/judgment dated 24.3.2012 passed by Sh.Dinesh Bhatt, ADJ, Tis
Hazari Courts, Delhi in RCA No.66/11.
2. I have heard the learned counsel for the appellant. The learned
counsel has contended that two substantial questions of law arising
from the present regular second appeal reads as under:-
"(a) Whether the document filed by the plaintiff is having a burden
to prove it, or it shifts upon the defendant, as held by the trial
court?
(b) Whether the suit of the plaintiff is liable to be rejected for not
proving the document filed by the plaintiff?"
3. At the outset, it may be pertinent here to mention that both these
questions cannot be treated as the substantial questions of law as
these are essentially questions of fact which have been adjudicated by
the courts below.
4. Briefly stated the facts of the case are that the respondent /Krishan Pal
filed a suit for recovery of `1,03,000/- against the appellant/Ram
Avtar. It was alleged in the plaint that the appellant/defendant had
approached the respondent /plaintiff for a loan as he was in need of
money and the respondent herein advanced a sum of `1,03,000/-. For
security of the loan, the appellant had deposited the original
documents of his plot measuring 120 sq. yds. out of plot measuring
500 sq. yds. comprising of Khasra no.15, Kila No.19-20, Mustatil
No.16, Kila No.16, situated in the revenue estate of Village Kakrola,
Delhi.
5. It was agreed by the appellant/defendant by executing a receipt cum
undertaking on 12.3.2003 that the amount of `1,03,000/- will be
repaid with 2% interest per month. Since the appellant/defendant did
not adhere to his commitment, the respondent/plaintiff filed a suit for
recovery bearing Suit No.588/2009.
6. On the pleadings of the parties, the following issues were framed:
(i) Whether the suit is liable to be rejected under Order 7
Rule 11 CPC? OPD
(ii) Whether the plaintiff is entitled to decree of recovery as
prayed for? OPP
(iii) Whether the plaintiff is entitled to interest? OPP
(iv) Relief.
7. All these issues, after permitting the parties to adduce their respective
evidence, were decided against the appellant/defendant and the suit
was decreed for a sum of `1,03,000/- in favour of the
respondent/plaintiff with pendente lite and future interest with 9%
p.a. from the date of institution of the suit till the date of realization.
8. The appellant feeling aggrieved, has preferred an appeal dated
24.3.12 listed on before Mr.Dinesh Bhatt, learned ADJ in RCA
No.66/11, wherein the learned ADJ had upheld the order of the trial
court.
9. Thus there was a concurrent finding returned by the two courts below
that the plaintiff was entitled to recovery of `1,30,000/- along with
interest @ 9% per annum.
10. The question which has been purportedly raised by the appellant
/defendant in the present second appeal are as to on whom the burden
was to prove the documents which was forming the basis of decreeing
the suit. Obviously, this burden was on the respondent /plaintiff who
has been held to have discharged the said burden and it was only
thereafter, onus shifted to the defendant /appellant. The general
principle of proof as contained in Section 101 of the Evidence Act is
'one who asserts must prove'. The remaining Sections, that is,
Section 102 of the Evidence Act onwards are only envisaging
exceptions. In the instant case, an issue had also been framed with
regard to the rejection of the plaint which was also decided against
the appellant. Therefore, both these issues essentially are issues of
facts which have already been adjudicated by the courts below and in
my considered view, they do not raise any substantial questions of
law and accordingly, the present regular second appeal is without any
merit and the same is dismissed.
V.K. SHALI, J.
FEBRUARY 26, 2013
RN
