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Molar Singh Vs. DIn Dayal and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 215 of 1962
Judge
Reported inAIR1974P& H302
AppellantMolar Singh
RespondentDIn Dayal and ors.
Cases ReferredFakhruddin v. State of Madhya Pradesh
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - bakhtawar lal deceased was admittedly a person with very weak eye-sight even if he cannot be described as almost blind. he stated during his cross-examination that the deceased had very..........that the execution of the document and the passing of the consideration had not been proved.2. shri bakhtawar lal defendant, who died during the trial, was described by the plaintiff to have incurred this loan as a manager of karta of the joint hindu family comprising of himself and his two sons din dayal and kesho dayal, defendant-respondents nos. 2 and 3. the blanks in the printed forms used for the execution of the pronote marked 'y' and receipt marked 'x' have admittedly been filled in the hand of shri din dayal defendant-respondent. the case of the defendants, however, was that they did not comprise any joint hindu family and that no debt had in fact been advanced to them by the plaintiff. bakhtawar lal and din dayal had denied that these documents bore their signatures. din.....
Judgment:

1. The plaintiff has filed this appeal against the judgment and decree dated 25th May, 1962 of Sub-Judge Ist Class, Gurgaon, dismissing his suit for the recovery of Rs. 6,720/- as principal and interest on the basis of a pronote dated 7-4-1960 on the finding that the execution of the document and the passing of the consideration had not been proved.

2. Shri Bakhtawar Lal defendant, who died during the trial, was described by the plaintiff to have incurred this loan as a Manager of Karta of the Joint Hindu Family comprising of himself and his two sons Din Dayal and Kesho Dayal, defendant-respondents Nos. 2 and 3. The blanks in the printed forms used for the execution of the pronote marked 'Y' and receipt marked 'X' have admittedly been filled in the hand of Shri Din Dayal defendant-respondent. The case of the defendants, however, was that they did not comprise any Joint Hindu Family and that no debt had in fact been advanced to them by the plaintiff. Bakhtawar Lal and Din Dayal had denied that these documents bore their signatures. Din Dayal's explanation was that in his father's absence he had filled in the blanks on the appellant's assurance that his father had asked for the loan and he would be advanced the money some days later. Din Dayal had, therefore, declined to sign these documents even as a scribe saying that he would do so after his father had been advanced the promised loan. Bakhtawar Lal deceased was admittedly a person with very weak eye-sight even if he cannot be described as almost blind. The Process Server, who had served the summons of this case on Bakhtawar Lal, had been examined as the appellant's witness to prove the signatures of the deceased on the summons. He stated during his cross-examination that the deceased had very weak eye-sight and had appended his signatures more or less blindly or by approximation (andaza).

3. The defendants had taken a number of preliminary or technical objections which had given rise to issues Nos. 4 to 7. Shri Goyal, the learned Counsel for the defendant-respondents, does not press these issues in this Court. The first three issues which relate to the execution of the pronote, passing of the consideration and the rate of interest are material for a decision of this appeal. The liability of Kesho Dayal, defendant-respondent No. 3 would depend on how far the appellant can prove that Shri Bakhtawar Lal incurred the loan as Manager or Karta of a joint Hindu Family.

4. The pronote and the receipt marked 'Y' and 'X' respectively which are the basis of the suit do not suggest even remotely that Bakhtawar Lal had incurred the loan as Manager or Karta on behalf of any Joint Hindu Family and not in his individual capacity. There appears to be an ulterior motive for roping in of all the adult male members of the respondents' family. It is admitted by the plaintiff-appellant that a few months before the date that the disputed documents 'X' and 'Y' bear, the appellant had purchased some land from Bakhtawar Lal deceased. Kesho Dayal defendant-respondent No. 3, the son of the vendor, had filed a pre-emption suit against the appellant. The appellant admits that in connection with the purchase of that land, he had been able to secure the signatures of the half-blind vendor on several papers. The evidence about the execution of the pronote and passing of the consideration has, therefore, to be examined with a little greater care in the present case. Shri Lila Ram P.W. 3 is the only attesting witness of the disputed documents. Even though he claims to have had money dealings with the appellant in amounts running into five figures, he pleads ignorance about the pre-emption suit filed against the appellant by defendant-respondent No. 3 or the fact that the amount in dispute has any connection with the pre-emption money in that case. The appellant had denied that he had any money dealings with the witness. It may also appears rather strange that the appellant would have deposited a sum of about Rs. 20,000/- or Rs. 25,000/- with the witness without obtaining any writing. The witness was apparently trying to build up his credit in the eyes of the Court when he made this unnatural statement. Even otherwise, the learned trial Court has observed some discrepancies in the statements of the plaintiff and this witness as to in whose presence the consideration had passed and the documents had been executed.

5. Both parties have, as usual, been able to get hold of a so-called Expert each, of questioned documents, to support their respective cases. Such Experts operating on private basis owe their engagement in a case and appearance in the witness box to an understanding that they would support their respective paymasters. They would not be led into the witness-box until they were to stand so committed. Under the circumstances, no great reliance can be placed on the conflicting opinions of these two Experts with regard to the disputed writings. All the attending circumstances have to be kept in mind before the opinion testimony of any such Expert can be accepted. The strictures passed against any Expert in any judgment would cease to have any meaning when that judgment is set aside on appeal. The circumstances under which Din Dayal had filled in the blanks in the printed form used for drawing up of documents marked 'X' and 'Y' have been explained by him. Even if that explanation is not found to be very satisfactory, the onus placed on the appellant of proving the execution of the pronote and the passing of the substantial amount of Rs. 6,000/- by independent evidence does not stand discharged.

6. Shri S. P. Jain, the learned Counsel for the appellant, has relied on Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326 = (1967 Cri LJ 1197), and In re Basawarajaswami, AIR 1967 Mys 210, and some other rulings laying down certain principles of law. These principles are not at all in dispute. The question only is of the appraisement of the evidence examined by the appellant and whether it is sufficient to discharge the burden of proof placed on the appellant. I agree with the learned trial Judge that the appellant has failed to discharge that onus.

7. The appeal is accordingly dismissed with costs.

8. Appeal dismissed.


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