R.L. Anand, J.@mdashThe L.Rs. of Chand Singh have filed the present appeal and it has been directed against the judgment and decree dated 13.1.1999 passed by Addl. District Judge, Barnala, who reversed the judgment and decree dated 8.1.1994 passed by Sub Judge Ist Class, Barnala, who dismissed the money suit of the plaintiffrespondent Sarup Chand.
2. Some facts can be noticed in the following manner:
A money suit was filed for a sum of Rs. 15,500/ by Sarup Chand against Chand Singh deceased on the allegations that defendant Chand Singh executed a pronote and receipt in favour of the plaintiff Sarup Chand for a consideration of Rs. 12,500/ at the rate of interest of 2% per month. Defendant Chand Singh gave the undertaking that the amount shall be paid to the plaintiff on demand but in spite of that it was not paid. Hence the suit along with interest.
The defendant denied the allegations of the plaintiff and stated that he did not receive any amount. The pronote and receipt dated 23.6.1990 are forged and without consideration. The plaintiff is alleged to have materially altered the important covenants of the pronote and receipt and thus he has no locus standi to file the suit. The defendant also claimed special costs from the plaintiff.
3. On the pleadings of the parties, the learned trial court framed the following issues :
1. Whether the defendant executed the pronote and receipt dated 23.6.1990 in favour of the plaintiff ? OPP
2. Whether the alleged pronote and receipt are result of fraud without consideration ? OPD
3. Whether the pronote and receipt are materially altered ? If so its effect ? OPD
4. Whether the plaintiff has no locus standi to file the suit ? OPD
5. Whether the defendant is entitled for special costs of Rs. 5,000/ under Section 35A ? OPD
6. Whether the alleged pronote and receipt are inadmissible in evidence ? OPD
7. Relief.
4. The parties led evidence before the trial Court and for the reasons given in paras Nos. 6 to 8 of its judgment, the trial court nonsuited the plaintiff. Para Nos. 6, 7 and 8 of the judgment dated 8.1.1994 read as follows:
"6. I have heard the learned counsel for the parties at considerable length and have also examined the relevant evidence on the record. I have come to this conclusion on perusal of evidence that plaintiff has failed to prove the execution of pronote and receipt for a consideration of Rs. 12,500/ in his favour on 23.6.1990 at the rate of interest of 2% per mensem. At the first blush, it is evident that the receipt Ex. P2 has been attested by Gurcharan Singh and Amrit Pal. Gurcharan Singh has appeared as DW1 and has totally denied the execution of any pronote and receipt by the defendant in favour of the plaintiff. He has also denied the passing of any consideration from plaintiff to defendant in his presence. PW3 Sat Pal, scribe of Ex.P1 and Ex.P2, the pronote and receipt, is the real son of the plaintiff, therefore, he is highly interested witness and as such reliance cannot be placed on his statement. He is supposed to go all out to support the case of his father. Only evidence left with the plaintiff is the statement of PW1 Amrit Pal. His statement is also replete with contradictions. He has stated in his examinationinchief that the pronote and receipt were executed by defendant in favour of the plaintiff and they were also executed in his presence and the consideration also passed in his presence. This witness was shaken in the crossexamination where he stated that the pronote and receipt were not executed in his presence and consideration was not passed in his presence. At one time, he states that the pronote and receipt were executed in his presence and at another time he states that the pronote and receipt were not executed in his presence nor the consideration was passed in his presence. He is himself a commission agent and his shop is situated besides the shop of the plaintiff. He is a witness of the convenience of the plaintiff as appearing from his statement. Therefore, the execution of pronote and receipt is a doubtful circumstance in this case. This witness has again said that the ink of his sign does not tally with the ink of the body of the pronote. It is evident on perusal of pronote and receipt that the sign of PW1 Amrit Pal are entirely with a different ink and pen, partly the body of the pronote and receipt is filled with ball pen and partly with some other pen. At the bottom on receipt against the thumb impression of the executant, the name of Chand Singh is mentioned with ball pen whereas the upper portion of body of pronote is filled with black pen. The name of Sat Pal s/o Sarup Chand is also with a different pen. All these circumstances cumulatively indicate that the defendant did not execute the pronote and receipt in favour of the plaintiff as required by law. The name of Amrit Pal seems to have been added later on as a witness of the receipt by the plaintiff. DW Gurcharan Singh has not corroborated the version of the plaintiff. PW1 Amrit Pal has also been shaken in his statement regarding the execution of pronote and receipt and the passing of consideration by changing his version. DW3 Labhu Ram who is the son of plaintiff has rather supported the version of the defendant. A son is not supposed to give the evidence against the father unless there is some grain of truth in this statement. In the presence of all these circumstances, the mere fact that plaintiff has shown the amount of Rs. 12,500/ in his balance sheet Ex.PW4/A will not make this court to hold that the pronote and receipt are executed by defendant in favour of the plaintiff. The plaintiff has failed to prove that defendant executed a pronote and receipt for a consideration of Rs. 12,500/ in his favour at the rate of interest of 2% per mensem on 23.6.1990. Issue No. 1 has not been proved on record by the plaintiff and same is decided against the plaintiff.
Issue No. 2
7. The onus of this issue is on the defendant. In view of my findings recorded under issue No. 1, this court has already returned the finding that the pronote and receipt are without consideration. The pronote and receipt are without consideration seems to be tainted by fraud and consequently, issue No. 2 is decided in favour of the defendant.
Issue No. 3
8. The onus of this issue is on the defendant. It is for the defendant to prove that the pronote and receipt bear material alterations. This court has also discussed this point under issue No. 1 that the body of pronote and receipt have been filled with two different inks and pens. It is evident on perusal of pronote and receipt that the upper portion of pronote is filled with ball pen whereas the subsequent portion is filled with pen of black ink. The upper portion of body of receipt is filled with black pen whereas the name of executant against his thumb impression is with ball pen. It is not understandable as to why the name of executant at pronote was written with black pen and at the receipt with black ball pen. The name of Amritpal witness of the receipt is with entirely a separate pen leading to this inference that his name had been added later on at the receipt. So all these circumstances militate against the execution of pronote and receipt. Therefore, issue No. 3 is decided in favour of the defendant accordingly."
5. Aggrieved by the judgment and decree of the trial Court, the plaintiff Sarup Chand filed the appeal before the Court of Addl. District Judge against Ranjit Singh and Jagmail Singh, who are present appellants and the L.Rs. of Chand Singh and the suit of the plaintiffrespondent was decreed for the reasons given in paras Nos. 7 to 10 of the judgment dated 13.1.1999.
6. Aggrieved by the judgment and decree of the first Appellate Court, the present appeal.
7. I have heard Mr. H.S. Kathuria, Advocate, on behalf of the appellants, Mr. Tribhuvan Singla, Advocate, on behalf of the respondent and with their assistance I have gone through the records of this case.
8. The learned counsel for the appellants vehemently tried to convince me that the findings given by the trial Court are correct. According to the learned counsel for the appellants, it is not proved on the record about the due execution of the pronote and receipt and the passing of the consideration. Moreover, according to the learned counsel for the appellants, the plaintiff has materially altered the essential covenants of the pronote and the receipt and in these circumstances the judgment and decree of the first Appellate Court should be interfered.
9. On the contrary, the learned counsel for the respondent has stated that due execution of the pronote and receipt and the passing of the consideration has been proved. The first Appellate Court has rightly assessed the evidence of the oral witnesses. The minor discrepancies are bound to be there. The Civil Courts are supposed to decide the civil matters on the preponderance of evidence and beyond reasonable doubt.
10. I have gone through the reasons advanced by the first Appellate Court and am of the opinion that these reasons are sound and convincing and the suit has been rightly decreed.
11. Faced with this difficulty, the learned counsel for the appellants submits that the appellants may be allowed to pay the decretal amount through instalments. I am also not inclined to accept this contention. No merit. Dismissed.
