Femida Sheikh vs Shri Krishna
2022 Latest Caselaw 6368 MP

1                                                        SA No.1764/2021




              IN THE HIGH COURT OF MADHYA PRADESH
                                  AT INDORE
                                   BEFORE

                    HON'BLE SHRI JUSTICE ANIL VERMA

                          ON THE 28th OF APRIL, 2022

                    SECOND APPEAL No. 1764 of 2021

    Between:-
    FEMIDA SHEIKH D/O NOOR MOHAMMAD , AGED ABOUT 40 YEARS,
    OCCUPATION: HOME MAKER
    R/O: 175/1, PNT COLONY RATLAM, DISTRICT RATLAM
    (MADHYA PRADESH)
                                                         .....APPELLANT
    (BY SHRI A.S. Parihar Adv.)

    AND

    SHRI KRISHNA S/O SHRI GULJARILAL LODHI , AGED ABOUT 63
    YEARS, OCCUPATION: PENSIONER
    R/o: 12, RAIL NAGAR, NEAR SHIMLA COLONY,
    RATLAM (MADHYA PRADESH)
                                                       .....RESPONDENT

This appeal coming on for admission this day, the court passed the

following:

         Heard on admission.




                                  ORDER

1/ This second appeal filed by the appellant/defendant under Section 100 of the Civil Procedure Code, 1908 (in short "CPC") is

directed against the impugned judgment and decree dated 11.10.2021 passed by the 6th Addl. District Judge, Ratlam in Regular Civil Appeal No.53/2019, whereby confirming the judgment and decree dated 29.6.2019 passed by the 5th Civil Judge Class-1, Ratlam in Civil Suit No.7-B/18, whereby the trial Court has decreed the plaintiff's suit for recovery of Rs.1,50,000/- with interest and cost.

2/ Brief facts of the case are that the respondent/plaintiff had instituted a suit inter-alia claiming that plaintiff and defendant both the parties know each other and have family terms since last 30 years. Appellant/defendant on account of domestic need borrowed certain amount from time to time from respondent/plaintiff. Plaintiff paid Rs.1,00,000/- on 7.3.2014 through Cheque No.675737 and paid Rs.50,000/- on 17.6.2014 through Cheque No.675745, but defendant did not refund the sum of Rs.1,50,000/-. A demand notice for return of borrowed money was made in the month of May 2016 by the plaintiff and the same was denied by the defendant. Therefore, respondent/defendant has filed the civil suit for recovery of Rs.1,50,000/- with interest against the defendant.

3/ Appellant/defendant filed her written statement. She has countered all the material allegations levelled in the plaint, further stating that she did not borrow any money from the plaintiff. Her father Noor Mohammad had lended certain money to the plaintiff from time to time and the same was returned by the plaintiff to her by both the cheques.

4/ On the basis of the aforesaid pleadings, trial Court framed the issues and permitted both the parties to lead their evidence. The trial Court after recording the evidence and hearing both the parties, decreed the suit filed by the respondent/plaintiff. Thereafter appellant/defendant preferred an appeal before the first appellate court. The first appellate court upon reappreciating the entire evidence placed on record, affirmed the findings of facts so recorded by the trial Court.

5/ Learned counsel for the appellant contended that the judgment and decree passed by both the courts below are illegal and not based upon the proper appreciation of the evidence. Both the courts below have failed to consider the oral as well as the documentary evidence produced by the appellant. Mere repayment through the cheques has been considered and relied upon by the courts below as loan amount. Learned courts below erred in law in relying upon the plaintiff's evidence and discarding the evidence adduced by the defendant as Ex.D/1 to D/8 and P/10, which clearly shows non application of mind. There was an agreement executed on 4.1.2012 but the same was ignored by both the courts. Both the courts below erred in not considering the amount received by the appellant through the cheque as part payment of the cancellation of agreement dated 4.1.2012. The impugned judgment and decree passed by both the courts below are illegal, inoperative and without jurisdiction being against the provision of law. Thus, in the light of the aforesaid he submits that the present appeal deserves to be admitted on substantial question of law proposed by him and the impugned judgment and decree passed by both the courts below be set aside.

6/ I have gone through the judgment and decree passed by both the courts below and perused the entire record.

7/ On perusal of the record of the trial Court it appears that the appellant/defendant Femida Sheikh (DW-1) has categorically admitted in Para-18 of her statement that it is true that plaintiff has given her Rs.1,00,000/- through Cheque No.675737 dated 7.3.2014 and Rs.50,000/- through Cheque No.675745 dated 17.6.2014. Her father Noor Mohammad (DW-2) has also stated that he has lended certain money from time to time to the plaintiff Shrikrishna but he did not disclose in his entire deposition that how much money he has lended to the plaintiff Shrikrishna. It is also contended by the appellant that plaintiff has returned the lended money amounting to Rs.1,50,000/- through the Cheques issued in favour of appellant, but appellant/defendant and her father Noor Mohammad did not produce any relevant document regarding the said transaction. They did not produce any receipt which was issued by the respondent Shrikrishna in favour of Noor Mohammad. Even the alleged lended amount was not disclosed by the appellant and her father. They never issued any demand notice to the plaintiff Shrikrishna and never filed any civil suit for such recovery against the plaintiff Shrikrishna. Therefore, in absence of these material evidence, the statement of appellant/defendant Femida Sheikh (DW-1) and her father Noor Mohammad (DW-2) cannot be relied upon.

8/ Noor Mohammad (DW-2) has also deposed in contrary of the defence of the defendant that plaintiff has borrowed money from

appellant Femida Sheikh and thereafter plaintiff had paid the said amount to the defendant through the Cheque but defendant Femida Sheikh did not support the aforesaid statement of Noor Mohammad. Defendant Femida Sheikh is an educated lady, she has done B.Sc. in Biology and also admits that she is able to read Hindi. Therefore, in view of the aforesaid contradiction, statement of Noor Mohammad cannot be relied upon.

9/ Learned counsel for the appellant also contended that an agreement was executed on 4.1.2012 for a sum of Rs.8 Lakh between wife of the respondent and mother of the appellant for sale and purchase of house property but it was not confirmed, which had been given the colour of the present recovery suit, but appellant Femida Sheikh in Para- 21 of her statement fairly admits that she did not sign agreement to sell (Ex.D/1) and she did not know where and before whom it was executed. She categorically admits that agreement of Ex.D/2 was not executed before her and she did not know where and before whom it was executed. Although it was contended by learned counsel for the appellant that money was received by the appellant through Cheque as a part payment of the cancellation of agreement dated 4.1.2012, but the same fact was not mentioned in the reply of the notice Ex.D/4, reply Ex.D/3 & D/6. Therefore, trial court has rightly held that the amount of Rs.1,50,000/- received by the appellant was not part payment of the cancellation of agreement dated 4.1.2012. On the basis of the evidence available on record, both the courts below have rightly held that it is a clear cut case of loan transaction and trial Court has rightly decreed the suit.

10/ In light of the aforesaid discussions, this Court is of the considered view that the judgment and decree passed by both the Courts below are based on due appreciation of oral as well as documentary evidence available on record. The findings recorded by the Courts below are the concurrent findings of facts. Learned counsel for the appellant has failed to show that how the findings of fact recorded by the Courts below are illegal, perverse or based on no evidence. Thus, no substantial question of law arises for consideration in present second appeal.

11/ The enunciation of law by the Hon'ble Apex Court in the case of Hari Narayan Bansal Vs. Dada Dev Mandir Prabandhak Sabha (Barah Gaon) Patam, reported in (2015) 16 SCC 540 empowers this Court to finally dispose of this appeal without framing the substantial questions of law at the admission stage itself. The observation made by Hon'ble Supreme Court is reproduced hereinbelow :-

"In our opinion, a substantial question of law is not required to be framed if the High Court decides to dismiss the second appeal at an admission stage. Only in a case where the second appeal is admitted or is decided finally by allowing the same, a substantial question of law is required to be framed by the High Court. In the instant case, no substantial question of law was involved in the second appeal and therefore, the High Court had rightly dismissed the second appeal at the admission stage by passing the impugned order. We, therefore, see no reason to entertain this Petition."

12/ The Supreme Court in number of cases has held that in exercise of powers under Section 100 of the Code of Civil Procedure can

interfere with the findings of fact only if the same is shown to be perverse and based on no evidence. Some of these judgments are Hajazat Hussain vs. Abdul Majeed & others, 2011 (7) SCC, 189, Union of India vs. Ibrahim Uddin, 2012 (8) SCC 148 and Vishwanath Agrawal vs. Sarla Vishwanath Agrawal, 2012 (7) SCC 288.

13/ Accordingly, present second appeal sans merit and is hereby dismissed at the admission stage for the reasons indicated above.

No order as to costs.

C.C. as per rules.

(Anil Verma) Judge Trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2022.04.30 10:43:25 +05'30'