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SMT. CHANDERPATI ALIAS CHANDERMANI versus DHARAMBIR

High Court of Punjab and Haryana, Chandigarh

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Smt. Chanderpati alias Chandermani v. Dharambir - CR-4480-2005 [2006] RD-P&H 3186 (16 May 2006)

Civil Revision No.4480 of 2005

.....

Smt. Chanderpati alias Chandermani

v.

Dharambir

.....

Present: Shri Akshay Kumar Goel, Advocate for the petitioner.

....

S.S. Saron, J.

This revision petition has been filed by the defendant against the order dated 19.5.2005 passed by the learned Additional District Judge (Fast Track Court), Bhiwani whereby the plaintiff's appeal against the judgment and decree dated 7.2.2000 passed by the learned Civil Judge (Senior Division), Charkhi Dadri has been accepted and the suit of the plaintiff decreed.

The plaintiff filed a suit for recovery of Rs.23,000/- i.e.

Rs.20,000/- as principal amount and Rs.3,000/- as interest. It was alleged that the defendant Smt. Chanderpati agreed to sell her one house which was in a dilapidated condition situated at Charkhi Dadri for a total consideration of Rs.40,000/- to the plaintiff. An agreement to sell in this regard was executed between the parties and the plaintiff paid Rs.20,000/- to the defendant as earnest money. The remaining amount C.R. No.4480/2005

[2]

was to be paid at the time of execution of sale deed on 15.6.1993. One of the conditions of the said agreement was that in case it was found that the defendant was not owner of the house in question then the plaintiff would be entitled to recover a sum of Rs.20,000/- along with interest @ 2% per cent per month. The plaintiff on inquiry found that the defendant was not owner of the house in question. Therefore, he sent a notice to the defendant to produce proof regarding ownership of the house, which was not produced. Consequently, the plaintiff filed a suit for recovery of Rs.20,000/- as earnest money and Rs.3,000/- as interest @ 2% per month. The defendant contested the suit and denied the execution of the agreement and submitted that the same was a forged and a fabricated document. Besides, it was without consideration. It was alleged by the defendant that the house of the plaintiff was adjacent to her house and he used to borrow money from her. The plaintiff approached her to give him the house in her possession on rent in order to tether his cattle. The plaintiff, it is alleged, took her (defendant) to the Court for drafting a rent deed and on that pretext obtained her thumb impression in a register and on a paper. The contents of that paper it is alleged were never read over to her and no money was given to her. The trial Court after consideration of the evidence and material on record dismissed the suit of the plaintiff.

In appeal, however, the suit of the plaintiff has been decreed which is assailed by the defendant by way of the present revision petition as second appeal against the same is not maintainable in view of the C.R. No.4480/2005

[3]

provisions of Section 102 of the Code of Civil Procedure (`C.P.C.' for short) being a suit for recovery of money not exceeding Rs.25,000/-.

Learned counsel for the petitioner contends that the learned lower appellate Court has misconstrued the evidence and material on record and has erred in setting aside the well merited and considered judgment and decree of the trial Court. Besides, the marginal witness to the agreement in whose presence the consideration money is said to have been given was not examined. Besides, no receipt has been placed on record to prove that the amount of Rs.20,000/- was given.

I have given my thoughtful consideration to the contentions of the learned counsel appearing for the defendant-petitioner. As already noticed, the primary case set-up by the defendant-petitioner was that the agreement to sell dated 1.10.1992 (Ex.P.1) was not executed by her.

However, the plaintiff-respondent proved the said agreement by examining himself as PW-4, Mata Din the Stamp-vendor as PW-2 as also Daya Nand Deed Writer as PW-3. Daya Nand, Deed Writer (PW-3) in his deposition stated that the contents of the agreement to sell were read over and explained to the defendant, who after admitting it to be correct put her thumb impression. Besides, it was stated that the defendant received a sum of Rs.20,000/- as earnest money at the time of execution of the agreement (Ex.P.1) to sell. As the defendant-petitioner had denied the execution of the agreement, the plaintiff also examined Yash Pal Jain, Hand-writing and Finger Expert as PW-5 who proved the C.R. No.4480/2005

[4]

thumb impression of the defendant on the agreement with her specimen thumb impression. The agreement to sell having been proved, it does not lie for the defendant to now contend that the consideration amount of Rs.20,000/- was not received by her. In any case, Daya Nand, Deed Writer (PW-3) has deposed in this regard. Therefore, there is no merit in the contentions of the learned counsel for the petitioner in this regard.

The position with regard to the receipt being not produced in token of having received the consideration amount is also inconsequential as the agreement itself acknowledges the receipt of Rs.20,000/-. Therefore, this aspect is also without merit. The learned counsel for the petitioner has, however, placed strong reliance on the doctrine of non-est factum as considered by this Court in the case of Hamelo (deceased) v. Jang Sher Singh, 2002 (2) PLR 101, wherein it has been held that the principle that a party executing a document was completely bound by the whole of the document which he had signed had long been mitigated by the doctrine of non est factum. On the basis of the said doctrine, it is contended that it can be argued that a person who is induced by the false statement of another, and who has signed a written contract that is fundamentally different in character from the one which he envisaged then such a person is competent to say that it is not his document. There is no dispute to the said proposition. However, in the case in hand, the passing of the consideration amount of Rs.20,000/- has been held to be established on the basis of evidence and material on C.R. No.4480/2005

[5]

record. Therefore, the ratio of the said decision is not applicable to the case in hand. Even otherwise the scope of revisional jurisdiction is limited and it is not shown by the counsel for the petitioner that the learned lower appellate Court has committed any grave dereliction of duty or its order is perverse which would warrant interference of this Court in exercise of the revisional jurisdiction under Section 115 C.P.C.

For the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed.

September 8, 2005. (S.S. Saron)

Judge

hsp


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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