JOT RAM Vs. LALA RAM AND OTHERS

JUDGEMENT

(1.) This regular second appeal filed by Jot Ram defendant-appellant is directed against the judgment and decree dated 12th November, 1976 of the learned Additional District Judge, Gurgoan, affirming the judgment and decree dated 24th February, 1976 of the learned Sub-Judge Ist Class, Palwal, whereby the suit of Lala Ram plaintiff-respondent for the recovery of Rs. 10,000/- was decreed with costs in his favour and against the defendant-appellant.

(2.) Both the learned Courts below have arrived at concurrent findings of fact that plaintiff-respondent advanced a loan of Rs. 10,000/- to the defendant-appellant and the pronote Ex. P-1 and the receipt Ex. P-2 were duly executed by the latter. These two documents were scribed by Girraj Patwari P.W-2 and the marginal attesting witness of the receipt Ex. P-2 were Sarpanch Girraj P.W.-3 and one Ram Chander. The learned Courts below have also believed the report of the Hand-writing Expert Harbans Lal P.W.-1. This report is Ex. PW-1/1. The thumb marks of the defendant-appellant on the pronote and the receipt, according to the opinion of the said Expert, tallied with the sample thumb-impression of the appellant. These concurrent findings of the fact have not been challenged before me nor is there any ground for interference with the same, in this second appeal.

(3.) The point that has been canvassed before me by the learned counsel for the appellant is that according to the evidence Girraj Sarpanch PW-3 and Lala Ram plaintiff-respondent PW-4, one revenue stamp was affixed and the same was thumb marked by the defendant-appellant after the entries in the documents Ex. P-1 & P-2 were made. The other three revenue stamps were affixed about 15 minutes thereafter. Mr. Sarin has relied on Firm Gobind Ram Dayal Dass and Co., Yamunanagar v. Sita Devi alias Sita Rani Saluja,1976 78 PLR 913, to contend that where the promissory note at the time of its execution is under-stamped, no decree can be passed on its basis as is not admissible in evidence, even if the defendant otherwise admits his liability. In the case cited above the revenue stamps were affixed long after the execution of the pronote and the receipt and were alleged to be of subsequent series. In the present case, however, the position is different. The marginal witnesses of the receipt, the defendant-appellant who was the executant of the pronote and the receipt as also the plaintiff-respondent, who advanced the loan were present when the remaining three revenue stamps were brought and affixed on the document. It is, thus, clear that the execution of document was completed in the presence of the marginal witnesses as also the parties concerned when the remaining three revenue stamps were brought and affixed thereon and were duly defaced. I am supported in this view by a judgment of the Kerala High Court in Kuruvila Karkose v. Varkey Varkey, 1966 AIR(Ker) 315.