acknowledgment made bahi entry of the plaintiff. The alleged entry
has been stamped and even signatures are obtained on revenue
stamp. Plaintiff has not produced the bahi itself. He has produced
only a folio i.e. one page of the bahi.
[11]. The fact shows that plaintiff maintains a bahi. The
production of one page i.e. folio from the original bahi has to be
proved by the plaintiff himself with regard to continuity of pages. It is
not the case of plaintiff that it was the only entry appearing in the
bahi which is subject matter of the present suit. In the absence of
such averment, bahi pre-supposes maintenance of account book of
monetary advances made by plaintiff in the capacity of professional
money lender.
Since onus of issue No.1 was on the plaintiff and he has
failed to discharge the same, therefore, he is not entitled to any
decree for recovery of the amount. The defendant has specifically
pleaded in the written statement that he has not signed any bahi
entry, rather his signatures have been obtained when he was in the
state of intoxication. Since the plaint does not contain any name of
the person who scribed the bahi entry, therefore, evidence of Satbir
Singh has to be treated out of context being beyond pleadings.
[14]. The signature appearing on the alleged bahi entry in Hindi
and his signatures on affidavit and statement in the Court in English
further aggravates the plea of the plaintiff and creates suspicion
whether Satbir Singh is the same person who allegedly signed the
bahi entry and has also appeared in the witness box. Father's name
of Satbir Singh further adds to the mystery as to whether he is son of
Bharat Singh-plaintiff or somebody else? Since the plaintiff has not
removed the cloud in his evidence, rather much of the evidence of
plaintiff is beyond the pleadings.
In respect of questions of law it is relevant to highlight that
mere exhibition of document does not dispense with proof of
execution. The name of the scribe as shown in the document has not
been pleaded by plaintiff in the plaint. Moreover the scribe who
allegedly prepared the bahi entry has signed the same in Hindi
whereas while appearing as witness his signatures are appearing in
English on affidavit as well as on the statement. There is no mention
about the scribe that he used to sign in both languages i.e. in Hindi
as well as in English. The pleadings in bahi entry as well as in the
plaint are at variance inasmuch that in the bahi entry, recital has
been made that amount would be repaid in the month of Jeth,
whereas there is no such averment mentioned in the plaint.
[17]. In view of aforesaid, bahi entry Ex.P1 is surrounded by
mysterious circumstances, hence cannot be read in evidence.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1454 of 2011
Date of Decision: 28.08.2015
Bharat Singh Vs Ram Chander
CORAM: MR. JUSTICE RAJ MOHAN SINGH
Citation:AIR 2016 (NOC) 654 P&H
[1]. Appellant-Bharat Singh has filed this regular second appeal
against judgment and decree dated 09.12.2010 passed by District
Judge, Bhiwani vide which judgment and decree dated 06.05.2010
passed by Civil Judge (Jr. Divn.) Charkhi Dadri has been upheld.
[2]. Plaintiff filed suit for recovery of Rs.57,200/- i.e. Rs.33,500/-
as principle amount and Rs.23,700/- as interest amount against the
defendant on the ground that defendant had borrowed a sum of
Rs.33,500/- from him on 12.12.2003 in the presence of a witness. In
acknowledgment of the same, borrower executed a bahi entry in the
bahi of plaintiff in which he had promised to repay the amount on
demand with interest at the rate of 24% per annum. Despite requests
made by the plaintiff, payment has not been made by the defendant
and, therefore, suit has been filed.
[3]. The defendant contested the suit and filed the written
statement denying the averments of the plaint. Defendant denied the
execution of bahi entry and also denied borrowing of the amount
from the plaintiff in any manner.
[4]. After filing replication, the following issues were framed:-
“1. Whether the plaintiff is entitled to decree for
recovery of Rs.57,200/- with pendente-lite and
future interest ? OPD
2. Whether plaintiff has no locus standi and cause of
action to file the present suit? OPD
3. Whether suit is not maintainable in the present
form? OPD
4. Whether suit is false and frivolous? OPD
5. Whether plaintiff has not come to the court with
clean hands? OPD
6. Relief.”
[5]. At the stage of plaintiff's evidence defendant was
proceeded ex parte and, thereafter plaintiff led ex parte evidence. He
examined PW-1 Satbir Singh as deed writer, Bharat Singh himself as
PW-2 and Satinder Sheoran, Advocate as PW-3.
[6]. Onus of issue No.1 was on the plaintiff. Plaintiff based his
claim on the basis of bahi entry. Ex.P-1 in the page/folio of bahi entry
dated 12.12.2003. It has been allegedly agreed by the defendant
that he will pay the amount back in the month of Jeth. The entry was
allegedly signed by Satbir Singh in Hindi. Plaint filed by the
plaintiff did not contain any averment regarding scribe of the same. It
has not been mentioned anywhere in the plaint that Satbir Singh
scribed the bahi entry on the asking of the plaintiff, nor any pleading
has been made in respect of scribe. The evidence led in the context
of scribe of the bahi entry is beyond the pleadings.
[7]. While filing the plaint, no averment has been made with
regard to the alleged plea on behalf of borrower/defendant that he
would repay the amount in the month of Jeth. The plaintiff while
appearing in the witness box as PW-2 has tried to improve the case
by deposing that the defendant agreed to pay back the amount in the
month of Jeth. Since there was no averment in the plaint, therefore,
evidence led on that front is also beyond pleadings and cannot be
looked into.
[8]. Bahi entry is alleged to have been signed by Satbir Singh in
Hindi. In the statement of the plaintiff, it has been mentioned that
Satbir Singh had scribed the bahi entry.
[9]. The aforesaid scribe has been shown to be son of Bharat
Singh and has signed affidavit as well as statement in English.
Plaintiff has not removed this cloud whether Satbir Singh is his son
or otherwise. The pleadings in terms of plaint and bahi entry Ex.P-1
are at variance. The pleadings of the plaint are not in coherence with
the bahi entry.
[10]. The case of plaintiff is that the defendant in token of
acknowledgment made bahi entry of the plaintiff. The alleged entry
has been stamped and even signatures are obtained on revenue
stamp. Plaintiff has not produced the bahi itself. He has produced
only a folio i.e. one page of the bahi.
[11]. The fact shows that plaintiff maintains a bahi. The
production of one page i.e. folio from the original bahi has to be
proved by the plaintiff himself with regard to continuity of pages. It is
not the case of plaintiff that it was the only entry appearing in the
bahi which is subject matter of the present suit. In the absence of
such averment, bahi pre-supposes maintenance of account book of
monetary advances made by plaintiff in the capacity of professional
money lender.
[12]. Section 3 of the Money Lender's Act prohibits continuance
of such business unless and until money lender is registered and
licensed person. The suit filed by money lender for recovery of loan
without there being any licence in his favour is liable to be dismissed.
Plaintiff has not been able to prove the valid licence for advancing
the loan to the defendant under Money Lender's Act, nor the original
bahi has been produced in order to show that the present instance
was the only instance in the bahi which could have brought him out
of purview of Money Lender's Act.
[13]. Since onus of issue No.1 was on the plaintiff and he has
failed to discharge the same, therefore, he is not entitled to any
decree for recovery of the amount. The defendant has specifically
pleaded in the written statement that he has not signed any bahi
entry, rather his signatures have been obtained when he was in the
state of intoxication. Since the plaint does not contain any name of
the person who scribed the bahi entry, therefore, evidence of Satbir
Singh has to be treated out of context being beyond pleadings.
[14]. The signature appearing on the alleged bahi entry in Hindi
and his signatures on affidavit and statement in the Court in English
further aggravates the plea of the plaintiff and creates suspicion
whether Satbir Singh is the same person who allegedly signed the
bahi entry and has also appeared in the witness box. Father's name
of Satbir Singh further adds to the mystery as to whether he is son of
Bharat Singh-plaintiff or somebody else? Since the plaintiff has not
removed the cloud in his evidence, rather much of the evidence of
plaintiff is beyond the pleadings.
[15]. Following questions of law have been pleaded by the
appellant in para 4 of the grounds of appeal:-
“1. Whether the findings of both the courts below
about Bahi entry are as per record/evidence of
parties when document Ex.P-1 is exhibited and is
admissible in the eye of law?
2. Whether documentary evidence can be discarded
without any evidence of defendant?
3. Whether the findings of the lower court are based
on the evidence available on file and are without
evidence?
4. Whether the respondent can defend and argue his
case without any evidence or issue on behalf of
respondent/defendant before the appellate court?
5. Whether the judgment and decree under
challenge are sustainable in the eye of law?
[16]. In respect of questions of law it is relevant to highlight that
mere exhibition of document does not dispense with proof of
execution. The name of the scribe as shown in the document has not
been pleaded by plaintiff in the plaint. Moreover the scribe who
allegedly prepared the bahi entry has signed the same in Hindi
whereas while appearing as witness his signatures are appearing in
English on affidavit as well as on the statement. There is no mention
about the scribe that he used to sign in both languages i.e. in Hindi
as well as in English. The pleadings in bahi entry as well as in the
plaint are at variance inasmuch that in the bahi entry, recital has
been made that amount would be repaid in the month of Jeth,
whereas there is no such averment mentioned in the plaint.
[17]. In view of aforesaid, bahi entry Ex.P1 is surrounded by
mysterious circumstances, hence cannot be read in evidence.
Question No.2 does not involve in any manner. The documentary
evidence as alleged does not advance the case of plaintiff in any
manner, rather the same diminishes the plaintiff's case even if
defendant was proceeded against ex parte. Onus of issue No.1 was
on the plaintiff and he has miserably failed to discharge the same.
[18]. Question No.3, the findings recorded by Courts below are
based on correct appreciation of evidence and do not warrant any
interference in second appeal. Question No.4 is not a substantial
question. Plaintiff has to prove his case. Onus of issue No.1 was
also on the plaintiff. Plaintiff has not discharged the onus even on the
basis of his own ex parte evidence. Being lacking on material
particulars, question No.5 is based on the interpretation of earlier
questions and is not to be answered in any manner as the findings
recorded by both the Courts are based on correct appreciation of
evidence and thus findings are legally sustainable in the eyes of law.
[19]. Both the Courts have rightly appreciated the evidence on
record. The presumption in terms of Section 118-A of the Act would
only arise in case execution of an instrument i.e. bahi entry is
proved. Once the execution of bahi entry in itself is doubtful, no such
presumption flows from such instrument.
[20]. There is no evidence on record as to the valuation required
towards the stamp chargeable upon such document. According to
Section 35 of the Indian Stamp Act, the instrument which is not duly
stamped is inadmissible in evidence. Once the execution of
instrument is not proved, the issue becomes redundant. The
admissibility of the document in question is very much doubted.
[21]. Looking from any angle, concurrent findings recorded by
both the Courts are not to be disturbed in second appeal.
Resultanlty, the appeal is totally devoid of merits and the same is
dismissed.
August 28, 2015 (RAJ MOHAN SINGH)
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