MANOJ KUMAR Vs. BHAGWAN DASS ALIAS BHAHMCHARI

JUDGEMENT

(1.) CM No.23190/2010 (for exemption) Allowed subject to just exceptions. R.S.A.No.232/2010 & CM No.23191/2010 (for stay) This appeal has impugned the judgment and decree dated 05.10.2001 which had reserved the finding of the trial judge dated 06.3.2010. Vide judgment and decree dated 06.3.2010 the suit of the plaintiff Bhagwan Dass seeking recovery of Rs.41,900/- stood dismissed. In appeal vide the impugned judgment and decree dated 05.10.2010 the suit of the plaintiff for recovery of the amount of Rs.41,900/- stood decreed.

(2.) ON behalf of the appellant, it has been urged that the judgment of the trial court is perverse. It has admittedly come on record that PW-1 who was the plaintiff had admitted in his cross- examination that his affidavit Ex.PW-1/A was neither prepared in his presence and nor under his instructions; he had put his signatures at the instance of his counsel. This unreliable testimony of PW-1 had however been relied upon in this impugned judgment to decree his suit. This was a perverse finding. It is pointed out that the well reasoned judgment of the trial court could not have reversed. Moreover there was no evidence to decree the suit for the principal amount of Rs.30,000/-; for this amount there was no evidence. Substantial questions of law have been framed in para 9 of the memo of appeal.

(3.) THE submission of the learned counsel for the appellant that the testimony of PW-1 is unreliable for the reason that he has admitted that Ex.PW-1/A (affidavit by way of evidence) was not read over to him and he has signed it at the instance of his counsel is bereft of any merit. PW-1 was Bhagwan Dass. He had reiterated the averments made in his plaint on oath. THE cheque in the sum of Rs.22,000/- was proved as Ex. PW-1/1. His accounts were maintained in his personal diary Ex.PW-1/7 showing his entitlement to the sum of Rs.30,000/-. Cross-examination of PW-1 has also been perused. THEre is not a whisper in the cross-examination that the amount of Rs.8000/- which was exclusive and over and above the cheque amount of Rs.22,000/- was not due or payable. PW-1 had studied up to 10th Class; he could read a little english. He had candidly and frankly admitted that the affidavit by way of evidence was not prepared in his presence and the same had been signed in the chamber of his counsel. He denied the suggestion that this cheque has not been issued in the discharge of liability. After this deposition of PW-1 there was an endorsement of the Court where it had been recorded by Presiding Officer that the witness has refused to sign the statement saying that his statement had not been recorded.