BALWANT SINGH Vs. ASHOK KUMAR GOEL

JUDGEMENT

(1.) THE legal heirs of the deceased-defendant Darbara Singh are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court decreeing the suit for Rs.27,000/- on the basis of pronote dated 13.9.1995 and also granting interest @ 1% per month on the decreetal amount from the date of filing of the suit till the date of realisation.

(2.) THE plaintiff filed a suit for recovery of Rs. 27,000/- , which includes Rs. 20,000/- as principal amount on the basis of pronote dated 13.9.1995 and Rs. 7000/- as interest. Defendant-Darbara Singh filed his written statement and denied execution of the pronote and also of the passing of consideration. To prove execution of the pronote, the plaintiff himself appeared as PW1 and examined Ashok Kumar, an attesting witness, as PW2. The plaintiff also produced pronote and receipt Exhibits P.1 and P.2. On the other hand, one of the sons of deceased-defendant Dev Raj appeared as DW1.

(3.) THE learned first Appellate Court considered the entire evidence and reversed the findings recorded by the learned trial Court. It found that Mam Chand scribe, has, in fact, died. It noticed that earlier Mam Chand appeared in ex-parte evidence, but after the ex-parte proceedings were set aside, Mam Chand was not available for examination. It also found that the testimony of PW-2 Ashok Kumar, one of the attesting witnesses is sufficient to prove the execution of the pronote and the receipt. He has deposed that an amount of Rs. 20,000/- was advanced to Darbara Singh, in his presence. The Court also recorded the finding that there is no cutting and overwriting on these documents and that the pronote and receipt appear to have been filled up at one time only. The pronote and receipt appear to bear the thumb impression of defendant and that such thumb impression is legible and clear. It also considered the statement of DW1 Dev Raj and found that he is neither a witness of the pronote nor the receipt and that such evidence is not sufficient to rebut the presumption of consideration attached to the execution of the pronote. Aggrieved against the said judgment and decree, the defendant is in the present Regular Second Appeal before this Court.