Partly allowed

Karan Singh v. Banwari Lal

Rajasthan HC17 Aug 2017CFA/197/2004

Case brief

AI extract

What is this about?

This is an appeal against a dismissal of a recovery suit based on unrefuted promissory notes. The High Court allowed the appeal partly, setting aside the lower court's judgment as evidence was not adduced following the striker out of the defendant's written statement.

What did the court decide?

Impugned judgment dated 13-12-2003 set aside; matter remanded to trial court to decide afresh in accordance with law.

Karan Singh Vs Banwari Lal — Contract and Commercial Disputes | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil First Appeal No. 197 / 2004

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Karan Singh SON OF SHRI NIHAL SINGH BY CASTE JAT, AGED ABOUT 70 YEARS, RESIDENT OF LOKNAYAK VYAS COLONY, NAHRI KA NAKA, SHASTRI NAGAR, JAIPUR

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----Appellant

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Versus

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SHRI BANWARI LAL SON OF DHANNARAM, BY CASTE MEENA, RESIDENT OF LOKNAYAK VYAS COLONY, KACCHI BASTI, NAHRI KA NAKA SHASTRI NAGAR, JAIPUR

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----Respondent

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For Appellant(s) : Mr. Mohd. Adil Khan

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For Respondent(s) : Mr. Arun Sharma

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HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

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Judgment / Order

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17/08/2017

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This civil first appeal has been filed under Order 41 Rule 1 read with Section 96 CPC against the judgment and decree dated 13-12-2003, passed by the Additional District Judge No.2, Jaipur City, Jaipur in civil suit No. 10/03 whereby recovery suit for Rs. 67,500/- filed by the appellant under Order 37 CPC has been dismissed.

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Learned counsel for the appellant has submitted that the trial court placing reliance upon averments of defendant granted leave to defence unconditional vide its order dated 8-52003 and thereafter the defendant could not submit his written statements within 90 days, hence right to file the same was closed vide order dated 28-11-2003 and matter was posted for arguments. There was no defence of defendant and the averments

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(2 of 3)

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[CFA-197/2004]

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of suit were supported by affidavit of plaintiff, no opportunity to lead evidence was afforded to the plaintiff. Counsel submitted that the suit was wrongly dismissed on the ground that the promissory notes signed by defendant, it is not proved that amount of Rs. 50,000/- was obtained by the defendant and the contents stated in his affidavit of defendant have not been refuted by the plaintiff. Counsel submitted that when the defendant admitted receipt of Rs. 13,000/- and making signature on blank promissory notes, he was not entitled to obtain unconditional defence. Counsel submitted that in spite of documents and affidavit filed in support plaint and in absence of written statement, an opportunity to adduce evidence should have been given to the plaintiff. Counsel further submitted that there is no reason to disbelieve upon the promissory notes filed by the plaintiff on which signature have been admitted by the defendant.

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On the other hand, learned counsel for the respondent/ defendant has opposed the submissions advanced by learned counsel for the appellant/plaintiff and supported the judgment and decree dated 13.12.2003 passed by the learned court below.

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Heard learned counsel for the parties and perused relevant material placed before me including the impugned judgment and decree passed by the learned court below as also the record of the case made available to the Court.

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In the application and affidavit filed by defendant for seeking leave to defence, defendant has admitted his signatures upon the promissory notes on which the recovery suit was based and burden to prove that signature was upon the defendant and

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(3 of 3)

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[CFA-197/2004]

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further when his right to submit written statement had struck out, there was no reason to disbelieve the averments of plaint. From the impugned judgment and decree it is apparent that the learned court below has misread the promissory note in question. It is not in dispute that the trial court granted leave to defence on 8/5/2003 and no opportunity to adduce an evidence was given to the plaintiff to lead evidence in rebuttal.

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In view of the above, the appeal is partly allowed and the impugned order dated 13/12/2003 passed by learned Additional District Judge No.2, Jaipur City, Jaipur in civil suit No. 10/03 is set aside and the matter is remanded to the trial court to decide it afresh in accordance with law.

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Parties are directed to appear before the learned court

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below on 15/9/2017.

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Record be sent back to the learned court below

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forthwith.

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(GOVERDHAN BARDHAR),J.

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Karan Singh v. Banwari Lal

Case brief

What is this about?

What did the court decide?

Karan Singh v. Banwari Lal

Case brief

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What did the court decide?

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