Madhya Pradesh High Court
Laxmi Narayan Chouksey vs Ram Kumar Malviya on 24 February, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:8434
1 CR-471-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 24th OF FEBRUARY, 2025
CIVIL REVISION No. 471 of 2018
LAXMI NARAYAN CHOUKSEY
Versus
RAM KUMAR MALVIYA
Appearance:
Shri Rajendra Kumar Jaiswal - Advocate for the petitioner.
None for the respondent, though served.
ORDER
This civil revision has been preferred by the petitioner/defendant
challenging the judgment and decree dated 09.05.2018 passed by 3rd Addl.
District Judge, Hoshangabad, in RCA no.03/2017 affirming the judgment
and decree dated 30.11.2016 passed by 2nd Civil Judge Class-II,
Hoshangabad, in civil suit no.12B/2015 whereby Courts below have decreed
the respondent/plaintiff's suit filed for recovery of an amount of Rs.20,000/-
along with interest @ 9% per annum till realization of the amount.
2. Facts, in short are that, the plaintiff had instituted a suit for
recovery of an amount of Rs.20,000/- with the allegations that upon demand
made by the defendant, the plaintiff gave him an amount of Rs.20,000/- on
01.12.2012 upon assurance given by defendant to return the same within a
period of three months and in lieu thereof defendant executed a promissory
note on 01.12.2012 in favour of the plaintiff and gave it to the plaintiff. It is
alleged that the defendant did not refund the amount inspite of issuance of
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notice dated 01.07.2014 (Ex.P/2), hence on inter alia allegations, the civil
suit was filed.
3. By filing written statement the defendant denied the allegations
made in the plaint and also denied execution of promissory note in favour of
plaintiff with the further plea that he took an amount of Rs.20,000/- (Rs.
Twenty thousand) from brother-in-law of plaintiff namely Yogendra
Chouksey, which was refunded timely to him along with interest and the
plaintiff has instituted the suit on the basis of false promissory note dated
01.12.2012 (Ex.P/1). On inter alia contentions, the suit was prayed to be
dismissed.
4. On the basis of pleadings of the parties, trial Court framed issues
and recorded evidence of the parties. In support of his case, plaintiff
examined himself-Ram Kumar Malviya (PW-1) and submitted documentary
evidence (Ex.P/1 to P/5). In rebuttal, the defendant examined himself-Laxmi
Narayan Chouksey (DW-1), Radheshyam Dubey (DW-2) and Vijay Kumar
Gupta (DW-3), however, did not adduce any documentary evidence.
5. Trial Court upon consideration of the material available on record
found the execution of promissory note proved and decreed the suit vide
judgment and decree dated 30.11.2016. Upon filing appeal by defendant, first
appellate Court has vide impugned judgment and decree dated 09.05.2018
affirmed the judgment and decree of trial Court against which instant civil
revision is preferred.
6. Learned counsel for the petitioner/defendant submits that the entire
case of the plaintiff is based on the promissory note dated 01.12.2012
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(Ex.P/1) which has not been proved by him in accordance with the
provisions of Section 47 and 67 of the Evidence Act and despite the fact that
promissory note is not a proven document, Courts below have committed
illegality in passing the decree in favour of respondent/plaintiff. By taking
this Court to paragraphs 2 and 9 to 15 of statement of the plaintiff-Ram
Kumar Malviya (PW-1), learned counsel submits that the plaintiff has not
been able to prove execution of promissory note by his only testimony and
Courts below on wrong assumptions not acceptable under the law, have
decreed the suit, which deserved to be dismissed. With these submissions, he
prays for allowing the civil revision.
7. Despite service of notice no one is appearing on behalf of the
respondent/plaintiff.
8. Heard learned counsel for the petitioner/defendant and perused the
record.
9. In the present case plaintiff had instituted the suit for recovery of
money mainly on the basis of promissory note dated 01.12.2012
(Ex.P/1). Perusal of promissory note shows that it is a typed promissory note
bearing date 01.12.2012 and signature of Laxmi Narayan Chouksey.
10. In paragraph 2 of his chief-examination, the plaintiff has stated
that promissory note (Ex.P/1) was executed by defendant in his presence and
after signing promissory note, the plaintiff gave an amount of Rs.20,000/- to
the defendant. At the same time, in para 9 of cross examination, the plaintiff
states that promissory note was written by Laxmi Narayan himself and in
paragraph 10 he states that promissory note was not written before him. If the
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statement of plaintiff is taken to be true, then it can very well be said that
promissory note was not executed by defendant in presence of the plaintiff
and except the plaintiff, no other witness has been examined by the plaintiff
for proving due execution of promissory note as well as payment of an
amount of Rs.20,000/- by defendant to the plaintiff.
11. As the execution of promissory note has been denied specifically
by the defendant in the written statement as well as in his oral testimony,
therefore, heavy burden was on the plaintiff to prove due execution of
promissory note in accordance with the provisions of Sections 47 and 67 of
the Evidence Act, which is lacking in the present case.
12. Upon perusal of the judgment and decree passed by Courts below,
it is clear that Courts below have not cared to consider the aforesaid
testimony of the plaintiff made in paragraphs 2, 9 and 10 of the statement of
plaintiff.
13. As a result of the aforesaid, both the impugned judgment and
decree passed by Courts below do not appear to be sustainable hence, by
allowing the civil revision the judgment and decree passed by Courts below
are hereby set aside and civil suit filed by the respondent/plaintiff stands
dismissed.
14. Accordingly, this civil revision stands allowed and disposed off.
15. Misc. application(s), pending if any, shall stand closed.
16. Parties shall bear their own costs.
(DWARKA DHISH BANSAL)
JUDGE
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