Shamim Bano vs Jalaluddin
2018 Latest Caselaw 4283 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 26th July, 2018.

+                                RSA 122/2017

       SHAMIM BANO                                             ..... Appellant
                          Through:      Appellant in person.

                                      Versus
       JALALUDDIN                                         ..... Respondent

                          Through:      Mr. M.A. Ansari, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This Second Appeal under Section 100 of the Code of Civil Procedure Code, 1908 (CPC) impugns the judgment and decree [dated 3 rd February, 2017 in RCA No.156/2016 of the Court of Additional District Judge-3 (ADJ), East District, Karkardooma Courts, Delhi] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant / plaintiff against the judgment and decree [dated 22nd April, 2014 in Suit No.158/2007 (Unique Case ID No.02402C0214072007) of the Court of Senior Civil Judge, District East, Karkardooma Courts, Delhi] of dismissal, after full trial, of the suit filed by the appellant / plaintiff for recovery of Rs.2,02,800/- from the respondent / defendant.

2. The appeal came up first before this Court on 21st April, 2017 and thereafter on 9th August, 2017 when though without indicating the substantial question of law arising, notice thereof was ordered to be issued and trial court record requisitioned. On none of the subsequent dates also any substantial question of law framed.

3. Today, none appears for the appellant / plaintiff. However, the counsel for the respondent / defendant points out to a lady standing in the Court and identifies her as the appellant / plaintiff.

4. The appellant / plaintiff states that her advocate is in a neighbouring Court. However, inspite of having waited for sufficient time and in which the trial court record requisitioned was perused, neither has the appellant / plaintiff come back nor has her advocate appeared.

5. Having gone through the memorandum of appeal and having not found the appeal to be raising any substantial question of law as defined in Veerayee Ammal Vs. Seeni Ammal (2002) 1 SCC 134, wherein it was held that merely because on appreciation of evidence another view is also possible would not clothe the High Court to assume jurisdiction on issue of fact framed by the Trial Court by terming the question as substantial question of law. As far back as in Sir Chunilal V. Mehta Vs. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 reiterated in Kashmir Singh Vs. Harnam Singh (2008) 12 SCC 796, it was held that the proper test for determining whether a question of law raised in a case is substantial, is whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so, whether it is an open question in the sense it is not finally settled or is not far from difficulty or calls for discussion of alternative views; if the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles, it would not be a substantial question of law. It was further held that it is not within the domain of the High Court to investigate the grounds

on which the findings were arrived at by the last Court of fact being the first Appellate Court. Mere appreciation of facts and documentary evidence was held to be not raising a question of law. Even in Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC 179, it was held:

"To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned."

6. It is not deemed appropriate to await the appellant / plaintiff any further.

7. The appellant / plaintiff instituted the suit, pleading that (i) the respondent / defendant is the husband of the sister of the appellant / plaintiff;

(ii) that the appellant / plaintiff loaned Rs.1,50,000/- to the respondent / defendant for doing his business and the respondent / defendant promised to return the said loan amount within one year, till 13th June, 2001; (iii) however the respondent / defendant returned only Rs.30,000/- on 13th June, 2001 and executed an agreement and gave an undertaking in writing in the presence of the witnesses to return the balance amount of Rs.1,20,000/- within one more year i.e. till 13th June, 2002, by way of instalments of Rs.9,400/- per month; (iv) the respondent/defendant did not pay any amount and avoided payment; (v) on 24th February, 2004, the respondent/defendant, on persuasion of well-wishers/relatives, agreed to enter into an agreement with the appellant/plaintiff and executed an agreement in writing dated 15 th March, 2004 in the presence of witnesses in this regard; (vi) however, the payment was still not made; and, (vii) when the respondent / defendant

inspite of notice also did not make payment, the appellant / plaintiff was compelled to institute this suit.

8. The respondent / defendant contested the suit by filing a written statement, denying having taken the loan or having executed any undertaking or agreement. It was also denied that the payment of Rs.30,000/- was made by the respondent / defendant to the appellant / plaintiff.

9. On the pleadings aforesaid of the parties, the following issues were framed in the suit on 6th October, 2007:

"(1) Whether the plaintiff is entitled to recover the amount as claimed?

OPP

(2) Whether the plaintiff is entitled to any interest? If yes at what rate and for what term? OPP

(3) Relief."

10. The appellant / plaintiff, besides herself, examined two other persons who were witnesses to the undertaking and the agreement. The respondent / defendant, besides himself, examined one other witness.

11. The suit Court dismissed the suit, reasoning (i) that on application of the appellant / plaintiff, vide order dated 22nd November, 2011, the undertaking and agreement in which the appellant / plaintiff claim the respondent / defendant to have admitted the loan were sent to Forensic Science Laboratory (FSL), Rohini, Delhi for comparison of the signatures purporting to be of respondent / defendant thereon with the admitted signatures of the respondent / defendant on written statement, vakalatnama and on the affidavit by way of examination-in-chief; (ii) that FSL had reported that the author of the admitted signatures did not make the

questioned signature and that there were fundamental divergences in the questioned and the admitted signatures and which were beyond the range of natural variations and intended disguise; (iii) the appellant / plaintiff even otherwise had been unable to prove being in possession of Rs.1,50,000/- claimed to have been loaned; (iv) the appellant / plaintiff, in her cross- examination disclosed her monthly earnings with her mother's assistance as Rs.3,000/- per month only and from this also the likelihood of the appellant / plaintiff being in possession of Rs.1,50,000/- was remote; (v) though the appellant / plaintiff claimed to have received part of the said Rs.1,50,000/- from her father, but no date even of the demise of the father was stated; (vi) that the testimony of the appellant / plaintiff also had stark contradictions and did not inspire credibility; (vii) while one of the witnesses examined by the appellant / plaintiff stated that stamp paper of the agreement was purchased on 15th March, 2004 from Seelampur Court in his presence but the stamp paper bore the date of 24th February, 2004 of sale thereof; (viii) the appellant / plaintiff had thus failed to prove her case; and, (ix) a comparison of the questioned and the admitted signatures by the Court itself also did not show any similarity between the two.

12. The First Appellate Court, upon appeal by the appellant / plaintiff, held / reasoned that (i) the report of the FSL is but an expert opinion and the Court was required to render its own finding thereon; (ii) however, there were marked differences between the two sets of signatures; (iii) there was thus no perversity in the finding of the Suit Court; (iv) it was beyond comprehension that the appellant / plaintiff would loan Rs.1,50,000/-, which amount according to the appellant / plaintiff was given to her by her father for the purpose of her marriage; (v) it was also doubtful that the amount of

Rs.1,50,000/- would be kept at home in cash; (vi) the income of the appellant / plaintiff and her mother, of Rs.3,000/- per month, was hardly adequate for their day-to-day expenses and the appellant / plaintiff could not be held to have saved therefrom; and, (vii) the appellant / plaintiff had thus failed to discharge the onus of having loaned any money to the respondent / defendant.

13. A perusal of the memorandum of appeal shows the counsel for the appellant / plaintiff to have proposed the following substantial questions of law:

"(A) Whether notice issued prior to filing of recovery suit, has no value and non reply by the respondent despite receipt thereof amounts admission of the contents of notice on his part.

(B) Whether court can ignore the liability on the respondent on the surmises and conjectures grounds which liability stood proved by the witnesses in evidence on record.

(C) Whether capacity of giving loan can be doubted by raising hypothetical presumption that such a big amount of Rs.1,50,000/- cannot be arranged by an unmarried appellant having no bank account and as to whether an amount of Rs.1,50,000/- is a big amount?

(D) Whether objected FSL report could be relied upon for passing judgment without calling fresh and full report and whether such a casual approach of the Ld. court below caused prejudice to the appellant enough for setting aside the below court judgments / orders."

14. As far as the first of the aforesaid substantial questions of law proposed, the AD card of service of notice is not found to bear the signature of the respondent / defendant. The same is signed in English language by

"SHADEEB" while the admitted signatures of the respondent / defendant are in the form of his name written in Hindi language, as are the signatures on the documents which the appellant / plaintiff claims to have been executed by the respondent / defendant. Even otherwise, the factum of non-reply to notice though can be a supporting factor to reach a conclusion but by itself cannot be construed as an admission of liability averred in the notice. Else, I have also perused the affidavits by way of examination-in-chief and cross- examination of the witnesses examined by the parties and do not find the consistent inferences drawn by the Suit Court and the First Appellate court therefrom to be perverse so as to constitute a substantial question of law.

15. There is thus no merit in the appeal.

16. Dismissed.

No costs.

17. Trial court record and the Appellate Court record be sent back.

18. The appellant / plaintiff who has since returned has been told in vernacular of the dismissal of her appeal.

19. The counsel for appellant, if has anything worthwhile to argue, shall be entitled to apply.

RAJIV SAHAI ENDLAW, J.

JULY 26, 2018 'gsr'