G.M. Lodha, J.
1. This is an appeal by plaintiff whose suit has been dismissed by the trial court. The plaintiff filed a suit for Rs. 28,560/-.
2. According to the plaintiff, the defendant-respondant. Ramprasad, took a loan of Rs. 21,000/- on 2-6-64 from the plaintiff appellant at the rate of 12 per cent per annum and executed a promissory note and a receipt in token of the receipt of the amount mentioned therein. The defendant-respondent had taken this loan from the plaintiff-appellant for purchasing a house from Shrimati Bhagwan Devi. The house was in fact purchased by Shri Ram Prasad from Shrimati Bhagwan Devi and a sale deed was duly registered on 3-8-64 and the amount as well as the cheque obtained by the defendant from the plaintiff was delivered to Shrimati Bhagwan Devi on that day. Since the defendant-respondent did not repay' the amount despite demands a telegraphic notice was sent to him on 24-7 67 to pay the amount along with interest. It is noteworthy that no reply was sent to this telegraphic notice by the defendant-respondent. Eventually, the plaintiff-appellant filed the present suit on 4-8-67.
3. Instead of filing a written statement the defendant-respondent, however, moved the Debt Relief Court and produced the admission order before the learned Senior Civil Judge No, 1, Jodhpur, before whom the suit was pending for abating the suit. The learned Senior Civil Judge No. 1, Jodhpur, accepted the prayer of the defendant-respondent and abated the suit on 14-11-67.
4. The plaintiff appellant preferred a revision petition against the aforesaid order of abatement which was accepted by the Hon'ble High Court of Judicature for Rajasthan at Jodhpur on 29-10-69 and the case was sent back for proceeding according to law. As a result of this order of remand, defendant-respondent filed the written statement on 12-3-70. He denied the execution of the promissory note as well as the receipt. He admitted the purchase of the house from Shrimati Bhagwan Devi on 3-8-64. Regarding the sale price he pleaded that he had arranged the same from other persons. He gave the details of the said arrangement in additional para No. 3 of the Written Statement, which reads as follows:
3- ;g gS fd eqnk;yk }kjk tks edku [kjhnk x;k Fkk ftlds fy, ftl izdkj dk cUnkscLr fd;k x;k mld fooj.k gLc tsy gS %&
v- rkjh[k 1&7&64 dks :Ik;k 3000 tojhyky ls dtZ ysdj rkjh[k 7&7&64 dks lkbZ ds :Ik;s fn;as 3000c- Jh vklkjke ds ekjQr jh enu jkt ds dtZ fy, 3000l- Jh jkethou ls tfj;s psd dtZ fy, 2000n- Jh ckyfd'ku ls dtZ fy, 4000eqnk;yk ds [kqn :Ik;k 6000 Fks tks Bkdqj r[rflag th dks m/kkj fn;s gqos tks eqlEeh r[rflag th ls olqy gqos 6000:Ik;s 18000
Thus, according to this plea he obtained Rs. 18000/- from those persons and arranged the rest from his own pocket. He further pleaded that, as a matter of fact, he had advanced a sum of Rs. 12,000/- to the plaintiff-appellant in cash in connection with the marriage of his son and had also brought goods worth Rs. 891.65 paisa for the plaintiff-appellant from the market and that had paid the shop keepers on behalf of the plaintiff-appellant from his own pocket. He further stated that when he demanded this amount from the plaintiff appellant and when common friends intervened the plaintiff appellant agreed to repay the amount and finally settled the account on 9-7-67 and appended his signatures on an account paper and also executed a pro-note and receipt for the repayment of the aforesaid amount. He admitted the receipt of the notice dated 24-7-67 sent by the plaintiff appellant but did not furnish any explanation as to why the notice was not replied.
5. The plaintiff-appellant filed a replication in which he repudiated claim of the defendant-respondent and further stated that a cheque of Rs. 2,000/- referred to by the defendant in his additional para No. 3 of the written statement was, in fact, issued by Shri Ramjeewan in favour of the plaintiff appellant Shivraj and that the said cheque was endorsed by the plaintiff in favour of Ram Prasad, because the latter stated that out of Rs. 21,000/- obtained from the plaintiff he had paid to some sundry creditors and, therefore, required a further sum of Rs. 2,000/-. This cheque was endorsed by the defendant on 3-8-64 in favour of Shrimati Bhagwan Devi which was credited in her account. The plaintiff categorically stated that the defendant had not obtained any amount from the various persons specified in additional para No. 3 of the written statement
6. After framing issues the learned Additional District Judge No. 1, Jodhpur, recorded the evidence led by the parties and finally dismissed the suit on 12-4-72.
7. This judgment of dismissal has been challenged by Mr. Singhvi on a number of grounds and Mr. Joshi has vehemently opposed the appeal and supported the judgment of the trial court.
8. The principal consideration, which weighed with the trial court and it has been repeatedly argued by Mr. Joshi before me is that the scribe of the document and one attesting witness was not produced. The scribe was called, but when he failed to appear and the court wanted to issue a bailable-warrant, the plaintiff under-took to produce him. Then he took a somer sault and the plaintiff did not produce him. As whole of the document is said to be in the hand writing of scribe, Mr. Joshi argued that with holding of the scribe cannot be ignored and has rightly been emphasised by the trial court against the plaintiff.
9. The other circumstances on the basis of which the plaintiff's was non-suited & which were emphasised by the defendant before the trial court and has been retaliated are extracted now from the judgment of the trial court, which reads as under:
(1) Shivraj in his statement has not stated a word that the attesting witnesses Mohanlal PW 5 and Chhotmal were present. He has even not deposed that the attesting witness had attested the documents in his presence.
(2) Rs. 1000.00 towards the sale consideration was paid by Ramprasad to the seller Smt. Bhagwandevi PW 2 some time in the month of June or July. 1964 and, therefore, the balance to be paid was only Rs. 19,000/-. Therefore, there could not have been any occasion for the plaintiff to have advanced such a big amount as Rs. 21,000.00 a day prior to the registry of the sale-deed.
(3) If the plaintiff would have paid Rs. 2l.000.00 on 2nd of August, 1964, then the plaintiff would not have paid Rs. 2000.00 on 3rd of August, 1964, for the purchase of the house.
(4) That the scribe Shri Chaturbhuj has not been produced and the other attesting witness Shri Chhotmal too has not been produced.
(5) That the plaintiff would not have waited for almost three years for the payment of his amount and would not have advanced such a big amount of Rs. 21,000/- without any security.
10. After hearing the learned counsel for the parties at length and on thoughtful consideration of their submissions and the relevant evidence referred to by the learned counsel for the parties, I am of the opinion that some inherent important circumstances of the case which have got great bearing have not been correctly appreciated by the trial court and that resulted in failure of justice. As is obvious from the narration of the fact, the house was purchased by defendant Ramprasad from Bhagwan Devi on 3-8-64 by a registered sale-deed and the defendant took the amount for this purpose. The total amount is Rs. 21,000/-, which was given by the plaintiff to the defendant. It is significant that apart from the evidence of the plaintiff and the attesting witness, Mohanlal, Bhagwandas and Ramjeewan have been examined, who are independent witnesses and whose testimony provides important corroboration to the plaintiff's case.
11. PW 2 Bhagwandas in terms has stated that the plaintiff and defendant came together to her and on the second occasion when they came together, it was a day earlier to the date of the registration of the sale-deed. At that time, defendant told her that he has obtained the amount from Shiv Raj and would be giving it to her. The story regarding part of consideration of Rs. 21,000/- being paid in the form of a cheque also finds support in the statement of Bhagwandevi. Rs, 21,000/- was paid in the form of a cheque. The plaintiff and the defendant met Bhagwandevi on August 5, 1964 in the evening and on the next day, the registration was to be done.
12. Mr. Joshi submitted that in cross-examination, Bhagwandevi has not been able to State as to what was the admission of the defendant because she has stated that the actual amount received by the defendant from the plaintiff was not disclosed.
13. Ramjeewan is another important witness, who has appeared in support of plaintiff's case. According to him, both Ramprashad and Shivraj met him and be gave a cheque of Rs. 2,000/- in favour of Shivraj plaintiff, who told him that he has to give this money to Ramprashad. He further states that this money was returned by Shivraj after 15 days. He has denied the defendant's suggestion that the amount of Rs. 2,000/- was taken by defendant from Ramjeewan as loan directly. It is significant that there is no relationship between Ramjeewan and Shivraj and Ramjeewan is an independent witness. It is also important to notice that PW 2 Bhagwandevi is also in independent witness.
14. Yet another important feature of the case is that the perusal of the cheque, which was perused by the trial court as per narration of facts of the judgment discloses that this cheque Ex. 5 was drawn by Ramjeevan in favour of Shivraj and Shivraj endorsed it in favour of Ramjeevan, who in turn endorsed it in favour of Bhagwandevi the seller of the house.
15. Now coming to the various infirmities pointed out by the learned counsel before the trial court and reiterated here, it must be observed that the mere fact that Shivraj in his statement did not mention that Mohanlal and Chauthmal were not present and they attested the documents, is of no consequence. The plaintiff was proving the execution and consideration. If Shivraj would have stated that they were not present and document would have shown to the contrary then importance could have been given against the plaintiff.
16. Similarly, the circumstance that Chaturbhuj scribe has not been produced and so also Chauthmal, is not of much consequence. As apart from the plaintiff and one attesting witness, there are some important circumstances corroborated by documentary evidence and evidence of Ramjeevan & Bhagwandevi, who inspires confidence and shows that the plaintiff's case is true. It is also not without significance that defendant's version how he arranged the money for payment of the sale of the purchase has been disbelieved by the trial court and nothing has been shown to reject that finding of the trial court, as for taking a different view. It is also significant that even for the cheque of Rs. 2,000/-, whereas in the written statement nothing was mentioned and the consideration received was shown from some different sources. When confronted in cross-examination, the defendant stated that he took this loan from Ramjeevan directly a fact which has been believed vide submission of Ramjeevan and by the perusal of the cheque itself by the trial court. In view of this, the mere fact that the scribe and one attesting witness were not produced, cannot be of any significance because it is not the quantity of the witnesses, which matters, but the quality of the evidence, is most important.
17. The circumstance that plaintiff did not file a suit before expiry immediately that plaintiff filed a suit at the time three years period was expiring cannot be used as a circumstance against the plaintiff because when the law of limitation provides a period of three years, the plaintiff can very well wait for the receipt of the amount. Obviously, the trial court failed to distinguish between civil cases and criminal cases. As in civil cases, it is only the period of limitation, which is to be considered and there cannot be anything like delay in filing a money suit.
18. The trial court, it appears, has led much emphasis on minor unimportant so-called discrepancies, which is clear from the fact that the statement of the plaintiff witnesses have been discarded on wholly unsustainable grounds, To illustrate the statement of PW5 Mohanlal, attesting witness has been rejected inspite of the above important features of the case, which corroborates the plaintiff's case. Merely because Shivraj happens to be the neighbour, a witness cannot be said to be interested. Contrary to it, his presence at the time of giving a loan becomes more probable. The witness stated that Shivraj gave money to Ramprasad and Rampraad told him that he is executing a pro-note of Rs. 21,000/- and he should attest it. It is very curious that the trial court has laid much emphasis on the ink on receipt and ink on signatures of Mohanlal. One fails to understand any requirement that the same ink should be used and the same pen should be sued in the execution of a document by the scribe attesting witnesses and the executants.
19. The fact that Mohanlal could not remember the name of scribe at the time of giving statement is of no consequence.
20. In my opinion, the rejection of the statement of Mohanlal on the ground, that he is brother of Ramjeevan, appears to be fallacious. Ramjeevan advanced loan of Rs. 2,000/- to Shivraj, who gave it by endorsement to Ramprasad, who gave it by endorsement to vendor of the house. These all facts are proved by the cheque and therefore, statement of Ramjeevan cannot be said to be a tainted or of a person who is interested. If that is so, how can the statement of Mohanlal be discarded on the ground that he is brother of Ramjeevan.
21. I am, therefore convinced that on a reading of the statement of the plaintiff, the scribe Mohanlal, the witness, who issued the cheque to Ramjeevan and the lady sold the house along with the statement of Pemaram, the case of the plaintiff's is proved and the criticism of the trial court on the various premises mentioned above is wholly unjustified.
22. The result of the above discussion is that this appeal succeeds and the judgment of the trial court is set aside. A decree is passed in favour of the plaintiff against the defendant for an amount of Rs. 21,000/- as principal amount along with interest of Rs. 7500.60/-. The plaintiff would further get interest at the rate of 6 per cent from the date of suit till the date of the realisation along with costs.