Tripura High Court
Smt. Ashima Talukdar vs Sri Ganesh Saha on 25 February, 2021
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HIGH COURT OF TRIPURA
AGARTALA
RSA 8 of 2017
Smt. Ashima Talukdar,
wife of Sri Padma Debbarma, resident of Baganbari,
P.O. Mayna Bazar-799275, P.S. Chailengta,
Sub-Division- Longtarai Valley, District- Dhalai, Tripura
... Defendant-Appellant
VERSUS
Sri Ganesh Saha,
son of Sri Ajit Saha, resident of Ambassa Bazaar, P.O. Ambassa-799289,
P.S. Ambassa, District- Dhalai, Tripura
... Plaintiff-Respondents
For Appellant (s ) : Mr. RG Chakraborty, Advocate
For Respondent (s) : None
Date of hearing and delivery : 22.02.2021
of judgment order
Whether fit for reporting : Yes / No
HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
The appeal has been taken up for hearing after its re-admission, with
the consent of Mr. RG Chakraborty, learned counsel for the appellant.
2. This second appeal has been filed under Section 100 of CPC against
the judgment and decree dated 05.01.2017 passed by the learned
Additional District Judge, Unakoti Judicial District, Kamalpur in Money
Appeal No. 1 of 2016 arising out of the judgment and decree dated
25.01.2016 passed by the leanred Civil Judge, Junior Division, Kamalpur,
Unakoti in Money Suit no. 1 of 2014.
3. The brief facts are that the defendant, appellant herein had borrowed
Rs. 1 lakh from the plaintiff, respondent herein, but, she failed to repay the
said amount to the respondent. As such, the respondent instituted the
Money suit being no. 1 of 2014. After exchange of pleadings, issues were
framed. Evidences were recorded by both the parties. Documentary
evidences were also introduced. After hearing learned counsel appearing
for the parties, the learned trial court held that the plaintiff is entitled to
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realise Rs. 1 lakh with interest from the respondent, and decreed the suit
accordingly. Being aggrieved, the appellant preferred a first appeal under
Section 96 CPC before the learned District Judge, Unakoti District and the
same was transferred to the court of learned Additional District Judge,
Unakoti District for hearing of the appeal. The learned Additional District
Judge having heard learned counsel for the parties and considering the
evidences and materials on record upheld and affirmed the findings as
returned by the learned trial court, thus decreed the suit in favour of the
respondent-plaintiff by judgment and decree dated 05.01.2017 in
connection with M.A. 1 of 2016. Feeling aggrieved and dissatisfied with
the judgments and decrees, the appellant, has preferred this instant appeal
asking this court for invoking its jurisdiction under Section 100 CPC.
4. At the time of admission of the appeal by order dated 07.03.2017,
this court has formulated the following substantial question of law:
"Whether the judgment and decree passed by the Trial Court and
affirmed by the Appellate Court suffers from perversity because of
non-consideration of the pleadings and evidence?"
5. Mr. RG Chakraborty, learned counsel has not urged for any other
substantial question of law to be formulated by this court at the time of
hearing. As such, this court has proceeded to hear the appeal on the basis
of the sole substantial question of law.
6. Mr. Chakraborty, learned counsel while arguing the appeal in favour
of the aforesaid substantial question of law has submitted that the
plaintiff-respondent had filed an application before the learned trial court
to examine the signature of the defendant-appellant put on the cheque
bearing no. 377430 by a forensic (handwriting) expert. The defendant-
appellant raised serious objection against the said application, but, her
grievance is that the learned trial court without considering the grounds
of objection by the defendant-appellant had allowed the application
under Order XXVI Rule 10A of the CPC filed by the plaintiff-
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respondent to examine the signature of the defendant-appellant by hand-
writing expert.
7. To a query, Mr. Chakraborty, learned counsel has submitted that the
defendant-appellant did not challenge the said order of the court
permitting the plaintiff-respondent to verify the signature of the
defendant-appellant by the hand-writing expert before any superior
court.
8. In my opinion, since the defendant-appellant did not challenge the
said order before any superior court, she cannot raise this plea at the time
of second appeal as a matter of substantial question of law. She is, in
fact, estopped by law.
9. The second point, as urged by learned counsel for the appellant is
that the plaintiff-respondent failed to establish his ability to pay Rs. 1
lakh.
10. I have gone through the findings of both the courts below where both
the courts held that the plaintiff-respondent had the ability to provide
loan of Rs. 1 lakh to the defendant-appellant and having held so, both the
courts below decreed the suit in favour of the plaintiff-respondent.
11. The said issue being absolutely based on concurrent finding of fact, I
refrain myself to overturn such findings of fact in exercise of jurisdiction
of this court under Section 100 CPC.
12. Accordingly, the present second appeal stands dismissed being
devoid of merit.
Send down the LCRs.
Pending application(s), if any, also stands disposed of.
JUDGE
Saikat
