JUDGMENT

Vivek Singh Thakur, J. - This regular second appeal has been preferred against the judgment of reversal, whereby learned District Judge, Shimla, vide judgment dated 01.09.2007, passed in Civil Appeal No. 23-S/13 of 2007, titled as Greesh Gupta vs. Madhwa Nand Semwal, has set aside the judgment and decree dated 01.03.2007, passed in favour of the plaintiff (appellant herein) by learned Civil Judge (Junior Division), Court No.(V), Shimla, H.P., in Civil Suit No.8-1 of 2005, titled as Madhwa Nand Semwal vs. M/s Girish Gupta, wherein plaintiff was held entitled for recovery of Rs.1,03,000/- from defendant. Appellant is plaintiff and respondent is defendant in the Civil Suit. For convenience in this judgment they would be referred as plaintiff and defendant respectively.

2. On 12.12.2007, appeal was admitted on following substantial questions of law:-

"1. Whether the onus to prove a facts can be burdened on plaintiff/appellant when the said fact is alleged by defendant/respondent and the defendant has failed to prove the fact by leading any cogent evidence?

2. Whether even though the defendant/ respondent has failed to prove the fact that he used to make payments of material by