IMPORTANT POINT
Non-examination of witness to pro-note cannot be held against plaintiff when there are concurrent findings of facts recorded by two Courts on execution of pro-note by defendant in favour of plaintiff.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 05.08.2019 passed by the High Court of Punjab and Haryana at Chandigarh in Regular Second Appeal No. 1727 of 2016, by which, the High Court has allowed the said appeal preferred by the original defendant and has set aside the judgment and order passed by the First Appellate Court as well as the Trial Court decreeing the suit for recovery of Rs. 1,36,550/- the original plaintiff has preferred the present appeal.

2. The appellant herein-original plaintiff instituted the suit against the respondent-original defendant for recovery of Rs. 1 lakh. It was the case on behalf of the plaintiff that the defendant has borrowed a sum of Rs. 1 lakh from him on 29.06.2007 and has also executed a pro-note (exhibit P1) and receipt (exhibit P2) in favour of the plaintiff. The defendant denied the execution of pro-note and took the stand that no loan was taken by the defendant and in fact the transaction was in between the father of the plaintiff and the defendant had paid the whole amount borrowed by him from the father of the plaintiff. The learned Trial Court framed the relevant issues.

2.1 The plaintiff examined four witnesses, namely, PW-1 Kapil Kumar (plaintiff), PW-2 Yashpal Chand (handwriting and finger print expert), PW-3 Satish Kumar (deed writer) and PW-4 Sat Narian (clerk to prove legal notice).

2.2 The defendant examined three witnesses, namely, DW-1 Dinesh Kumar (clerk cum cashier, SBI to prove the deposit of amount in bank account), DW-2 Raj Kumar (defendant) and DW-3 Phool Singh S/o Puran Singh (father of plaintiff).

2.3 On appreciation of evidence, the learned Trial Court believed the execution of pro-note executed by the defendant in favour of the plaintiff and consequently decreed the suit. The appeal filed by the defendant before the learned First Appellate Court came to be dismissed. In the second appeal under Section 100 of Code of Civil Procedure, the High Court has interfered with the concurrent findings recorded by both the courts below on execution of the pro-note by the defendant in favour of the plaintiff, solely on the ground that attesting witness to the pro-note has not been examined therefore, the content of the pro-note has not been proved and consequently has allowed the second appeal.

2.4 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court the original plaintiff has preferred the present appeal.

3. Learned counsel appearing on behalf of the appellant-original plaintiff has vehemently submitted that in the facts and circumstances of the case the High Court has erred in upsetting and/or quashing the concurrent findings recorded by both the courts below on execution of the pro-note by the defendant in favour of the plaintiff, in exercise of powers under Section 100 of CPC.

3.1 It is submitted that when the findings on facts were recorded by both the courts below on execution of pro-note by the defendant in favour of the plaintiff which as such were on appreciation of evidence on record, more particularly, the testimony of PW-3, the same was not required to be interfered with by the High Court in exercise of powers under Section 100 of CPC.

3.2 It is submitted that if the deposition of PW-3 is considered as a whole, it is apparent that PW-3 deed writer has specifically stated that when he asked the defendant as to whether he had received the money then the defendant admitted the receipt of money. It is submitted in that view of the matter and the deposition of PW-1-plaintiff and the deposition of deed writer-PW-3 the execution of pro-note and even the content of payment of the consideration mentioned in the pro-note has been established and proved. Therefore the High Court has committed a very serious error in allowing the second appeal and consequently quashing and setting aside the judgment and decree passed by the learned Trial Court confirmed by the learned First Appellate