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Jai Prakash Sharma v. Sushil Tiwari - SECOND APPEAL No. 896 of 2006 [2006] RD-AH 18798 (7 November 2006)


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Court No. 24

Second Appeal No. 896 of 2006

Jai Prakash Sharma..............................................................Defendant/Appellant


Sri Sushil Tiwari.....................................................................Plaintiff/Respondent


Hon'ble Umeshwar Pandey, J.

Heard Sri R.K. Jain, learned Senior Advocate assisted by Sri Rahul Jain for the appellant.

The defendant challenges the judgment and decree dated 25.7.2006 passed by the court below whereby two cross appeals of the respective parties have been dismissed and the judgment of the trial court has been affirmed.

The respondent-plaintiff filed the suit for recovery of a sum of Rs. 1,38,800/- against the appellant-defendant stating that he had lent the amount in different sums to the defendant on different dates in order to facilitate the payment due to the dealer who was carrying out certain constructions for him. Since the relations between the parties were quite cordial, the plaintiff did not ask the defendant initially to execute any receipt for those sums. However, on 9.10.1998 a document was executed by the defendant-appellant admitting advancement of the sums of Rs. 25,000/- each of three different dates. The suit was contested by the appellant-defendant stating that he had not received any amount by way of loan from the plaintiff, instead the plaintiff himself had taken a sum of Rs. 75,000/- from him as loan on payment of interest at the rate of 15% per annum. The defendant gave a notice for repayment of the loan back to him on 17.8.1999 which was replied with wrong facts. The defendant, however, admitted that in October, 1998 the plaintiff had obtained his signatures and his wife's thumb impressions on a blank stamp paper on the pretext that he will submit it with electricity department. Therefore, the defendant made a counter claim of Rs. 75,000/- along with interest in his written statement. The trial court after perusing the pleadings of the parties framed eight issues and after recording evidence of the parties found that the case of the plaintiff is partially correct in so far as it relates to the recovery of Rs. 75000/- The case of recovery of the remaining sum is, however, not found substantiated and accordingly the suit was partly decreed. The trial court, however, dismissed the claim of the defendant-appellant. Against this judgment of the trial court both the parties preferred appeals and the lower appellate court found the findings recorded by the trial court to be wholly sound and both the appeals have been dismissed.

The learned Senior Advocate, Sri R.K. Jain, while placing his submissions has tried to emphasise that the document Paper No. 29 C-2, upon which both the courts below have placed reliance is such a document which is not actually admissible in evidence as there was no admission or denial of the same by the defendant as is required under Rule 42 of General Rules (Civil).  He has also submitted that the findings recorded with respect to accepting the part claim of the plaintiff, both the courts have committed legal error by rendering perverse reasons in support thereof. The builder to whom the amount is said to have been paid by the plaintiff on behalf of the defendant has not been examined by the plaintiff in the court and, therefore, the presumption of such payment made by the courts below is a glaring example of such perverse finding.

As regards the admission and denial of the document Paper No. 29 Ga (Annexure-3), the aforesaid Rule 42 of General Rules (Civil) simply provides that the parties desiring to produce any document in the court should obtain admission or denial of the opposite-party recorded thereon. The provision does not say that in case of any failure in this regard on the part of the parties or the court, the document will be rendered inadmissible in evidence. From the copies of the statements of the witnesses filed on record it is more than evident that the document has been duly proved by the plaintiff as well as its scribe. The denial of the signature of the defendant over this document is no where there nor any suggestion to these witnesses has been given to this effect that it does not bear the signature of the defendant. Therefore, under the Evidence Act this document stands properly proved and the court placing reliance upon it cannot be accused of committing any illegality, whatsoever, in this regard. The court below appears to have rightly placed reliance on this Paper No. 29 C-2 (Annexure-3) and no infirmity in such findings recorded can be found out as to given an occasion for interference in this second appeal.

As regards submission regarding perverse findings recorded by the courts below, I do not find that this argument is sustainable in the eye of law. On a perusal of the judgments recorded by the courts below it is found that after having considered the factual part of the statement of the witnesses of the plaintiff they had placed reliance upon it. The document has been duly proved under law and it has thus been accepted and found proved that the defendant-appellant admitted those payments of Rs. 25,000/- each on three occasions. In this view of the matter, the trial court as well as the appellate court have accepted this paper as a valid piece of evidence and have granted a decree in plaintiff's favour. I do not find any infirmity in this finding as to hold it as a perverse finding. Thus, in the circumstances and the facts prevailing and also in view that the appeal does not have any substance and it does not give rise to any substantial question of law as relevant for decision by this Court, the appeal fails and is hereby dismissed at the admission stage itself.




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