Punjab-Haryana High Court
Jiwan Ram vs Om Parkash on 25 September, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:126857
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
224 RSA-4767-2011 (O&M)
Reserved on : 03.09.2024
Date of Decision : 25.09.2024
Jiwan Ram ....Appellant
VERSUS
Om Parkash ....Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Abhishek Chaudhary, Advocate for
Mr. Aayush Gupta, Advocate for the appellant.
Mr. Karamveer Singh Banyana, Advocate for the respondent.
ALKA SARIN, J.
1. The present regular second appeal has been preferred by the
plaintiff-appellant challenging the judgment and decree dated 17.08.2011
passed by the First Appellate Court whereby the appeal filed by the defendant-
respondent was allowed and the judgment and decree dated 04.12.2009 passed
by the Trial Court was reversed.
2. The brief facts relevant to the present lis are that the plaintiff-
appellant herein filed a suit for recovery of Rs.46,963/- on the ground that the
plaintiff-appellant is running a commission agency in the name and style of
M/s Prem Nath Jiwan Ram and that the plaintiff-appellant is the sole
proprietor of the firm. It was further averred in the plaint that the defendant-
respondent had a running account for the last four years and he used to take
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loans from the firm. It was further the case set up that on 30.11.2000 the
defendant-respondent took a sum of Rs.20,000/- through cheque, on
01.05.2001 he took Rs.4,400/- through cheque, on 09.06.2001 he took a sum
of Rs.4,300/-, on 12.06.2001 he again took a sum of Rs.1,225/- and on
31.12.2001 he took a sum of Rs.5,386/-. Thereafter, on 31.12.2001, after
taking loan of Rs.5,386/-, the defendant-respondent got the outstanding
amount calculated in his name which came to Rs.35,311/- towards principal
amount. It was further the case that despite promises, the amount had not been
repaid. A legal notice was issued on 08.11.2004. However, no reply was sent
to the legal notice. Hence, the suit for recovery. The defendant-respondent
filed his written statement controverting all the assertions in the plaint.
Besides the preliminary objections, on merits the stand taken by the
defendant-respondent was that he is an employee of the Market Committee,
Thanesar since 1985 and that he had never obtained any loan from the
plaintiff-appellant. The legal notice was served only with a view to create
evidence. He also denied entries in the bahi khattas. It was further the case
that the defendant-respondent was not an agriculturist. Replication was filed
controverting the assertions in the written statement and reiterating those in
the plaint.
3. On the basis of the pleadings of the parties the following issues
were framed :
1. Whether the plaintiff is entitled for a decree of
recovery of Rs.46,963/- along with interest @ 1% per
month as prayed for ? OPP
2. Whether the suit of the plaintiff is not maintainable
? OPD
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3. Whether the suit is time barred ? OPD
4. Whether the suit is bad for want of non-joinder of
necessary parties ? OPD
5. Whether the suit is bad for want of proper court
fee ? OPD
6. Whether the plaintiff is estopped by his own act and
conduct from filing the present suit ? OPD
7. Relief.
4. The Trial Court decreed the suit vide judgment and decree dated
04.12.2009. Aggrieved by the same an appeal was filed by the defendant-
respondent which appeal was allowed by the First Appellate Court vide
judgment and decree dated 17.08.2011 and the suit was accordingly
dismissed. Hence, the present regular second appeal.
5. Learned counsel for the plaintiff-appellant has vehemently
contended that the First Appellate Court has erred in reversing the well
considered judgment and decree dated 04.12.2009 passed by the Trial Court.
It is further the contention that the bahi khatta entries produced on the record
as Ex.P1 and Ex.P2 (Hindi translation), Ex.P8 and Ex.P9 respectively, clearly
showed that there were entries against the name of defendant-respondent.
6. Heard.
7. In the present case the only reliance of the plaintiff-appellant was
on the bahi khatta entries which were not signed by the defendant-respondent.
Though an assertion was made in the plaint that the amounts were given as
loan vide different cheques, however, neither the details of the cheques nor
the account number/account statement was produced by the plaintiff-
appellant. It was incumbent upon the plaintiff-appellant to prove his case by
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leading affirmative evidence. The onus to prove that the loan was taken by the
defendant-respondent lay heavily on the plaintiff-appellant who failed to
discharge the same. It has further been noticed by the First Appellate Court
that even the record was not summoned from the concerned Bank to show that
the amount had been debited from the account of the plaintiff-appellant. The
defendant-respondent had denied the bahi khatta entries and hence the onus
lay on the plaintiff-appellant to prove the signatures in the bahi khatta entries.
No handwriting expert was produced to show that the signatures in the bahi
khatta entries are that of the defendant-respondent. No other argument has
been raised by learned counsel for the plaintiff-appellant.
8. In view of the above, no question of law, much less any
substantial question of law, arises in the present case. The appeal being devoid
of any merit is accordingly dismissed. Pending applications, if any, also stand
disposed off.
( ALKA SARIN )
25.09.2024 JUDGE
Ankur
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
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