The High Court allowed miscellaneous applications for condonation of delay in filing and refiling the appeal and making good the court fee deficiency. In the main judgment, the regular second appeal was dismissed upholding the concurrent findings of fact below.
Miscellaneous applications allowed; main second appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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RSA No.4035 of 2017 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4035 of 2017 (O&M) Date of Order: 28.08.2017
Ram Partap through his LRs and another
..Appellants
Versus
Birbal
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Vaibhav Jain, Advocate, for the appellants.
ANIL KSHETARPAL, J (Oral)
C.M.Nos.10313-10314-C-2017
Prayer in these applications is for condonation of delay in filing and re-filing the appeal.
For the reasons mentioned in these applications, which are supported by an affidavits, the delay of 289 days in re-filing and delay of 07 days in filing the appeal are condoned.
Applications are allowed.
C.M.No.10315-C-2017
Allowed as prayed for.
C.M.No.10317-C of 2017
Prayer in this application for making good the deficiency in the
Court fee.
For reasons stated in the application, which is supported by an affidavit, the same is allowed. Deficiency in Court fee has already been made good. Delay in making up the deficiency is condoned.
RSA No.4035 of 2017
Naresh Kumar 2017.09.20 15:32 I attest to the accuracy and integrity of this document Chandigarh
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RSA No.4035 of 2017 (O&M)
Defendant is in regular second appeal against concurrent findings of fact arrived at by the Courts below.
Plaintiff had filed a suit for recovery of the amount on the basis of pronote and receipt dated 14.05.2006, executed by late Shri Ram Partap, the original defendant, who died during the pendency of the suit.
Defendant contested the suit and denied borrowing of the
amount.
Plaintiff in his evidence examined himself as PW4. He also examined Devi Lal, scribe of the pronote, Hardeep Singh, witness and Shamsher Singh Malik, Handwriting and Finger Print Expert to prove the execution of the pronote and the receipt.
On the other hand defendant examined himself being legal heir of original defendant as DW2 and examined his neighbour as DW1.
Learned trial Court after appreciating the evidence available on the file, held that the pronote & receipt and lending of money is proved. The suit was decreed.
Defendant filed the first appeal. Learned first appellate Court has also upheld the findings of fact arrived at by the trial Court. Learned first appellate Ccourt has re-appreciated the evidence available on the file and discussed the case in detail.
Learned counsel for the appellants has submitted that the judgments passed by the Courts below are result of misreading of evidence. Learned counsel has submitted that the evidence of DW1 has not been properly appreciated.
I have considered the submission of learned counsel for the appellants, however, I do not find any force in the same.
Naresh Kumar 2017.09.20 15:32 I attest to the accuracy and integrity of this document Chandigarh
RSA No.4035 of 2017 (O&M)
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DW1 is neighbour of the defendant. Once there is a documentary evidence available on the file i.e., pronote and receipt, which is signed by the original defendant, the oral evidence led by the defendant cannot be relied upon. In these circumstances, the evidence of the neighbour DW1 cannot be relied upon.
In view of the discussion made above, I do not find any good ground to interfere with the concurrent findings of fact arrived at by the Courts below. The regular second appeal is ordered to be dismissed.
All the misc. applications are disposed of in view of the main
judgment.
August 28, 2017 (ANIL KSHETARPAL) nt JUDGE Whether speaking/reasoned : Yes/No Whether reportable : Yes/No
Naresh Kumar 2017.09.20 15:32 I attest to the accuracy and integrity of this document Chandigarh
2 issues framed by the court
Whether delay in filing and re-filing the appeal should be condoned?
Whether the lower courts' findings regarding the execution of the pronote and receipt require interference in the second appeal?
Ram Partap through his LRs and another
Birbal
Anil Kshetarpal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
