IN THE HIGH COURT OF MADHYA PRADESH

AT GWALIOR

BEFORE

HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH

FIRST APPEAL No. 199 OF 2004

BETWEEN:-

KHALIL KHAN S/O LATE SHRI FAZAL UR RAHMAN, AGED 50 YARS, OCCUPATON SHOPKEEPER, R/O AAPAGANJ, BEHIND BHAIYA KHAN KI MASZID, LASHKAR, DISTRICT GWALIOR (MADHYA PRADESH)

.....APPELLANT

(BY SHRI B.D.JAIN - ADVOCATE )

AND

SHAKIL KHAN S/O ISMILE KHAN, AGED 35 YERS, R/O INDRANAGAR, AWADPURA, OPPOSITE BADI MASZID, LASHKAR, DISTRICT GWALIOR (MADHYA PRADESH).

.....RESPONDENTS

(NONE)

This appeal having been heard and reserved for orders, coming on for pronouncement this day, this court passed the following:

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J U D G M E N T

This first appeal under Section 96 of CPC has been preferred by appellant/plaintiff against the judgment and decree dated 30/6/2004 passed by Fifth Additional District Judge, Gwalior in Civil Suit No. 6-B/03 (Khalil Khan Vs. Shakil Khan). By the impugned judgment, suit filed by plaintiff/appellant has been dismissed.

2. The appeal has been filed on the ground that before the trial Court PW/1 and PW/2 in their statement has categorically stated that defendant/respondent had obtained Rs. 40,000/- from the plaintiff in cash and in that behalf, a promissory note dated 8/9/2000 was executed alongwith receipt of receiving the amount. Therefore, the promissory note Ex. P/1 and receipt was proved under Section 67 of the Indian Evidence Act.

3. Before the trial Court, defendant took the plea that he has entered into an agreement dated 8/9/2000 for purchasing a plot; however, when he came to know that appellant was not the owner of the plot regarding which the agreement was executed, he demanded the money back. The plaintiff forged a promissory note and same was found by Court below and therefore, suit was rightly dismissed.

4. On the other hand, it is the submission of learned counsel for the plaintiff that if the defendant is stating that the promissory note is forged one then the burden to prove the same lies on the defendant but he failed to do so.

5. It is the further case of the appellant that he had sent a notice Ex. P/2 dated 5/5/2001, which was received by the defendant but defendant never replied to the notice, when he had received the notice Ex. P/2 then he should have replied to the same denying the promissory note, therefore, it again proves the case of the plaintiff. Learned trial Court in the judgment, specifically in para 13 regarding Ex. P/1 has observed that witness Ramswaroop and Laxman are literate and plaintiff is also literate then why the promissory note was written by some stranger persons and on this ground, dismissed the suit but plaintiff in his statement has stated that he is not very literate "T;knk i<+k fy[kk ugha gS A" but the trial Court has wrongly interpreted the line therefore, prayer is made to set aside the impugned judgment and decree and to allow the suit and grant a decree of Rs. 40,000/- alongwith interest from 8/9/2000 to 23rd August, 2003 and consequential benefits.

6. None appeared in this appeal for respondent despite deemed service of notice, therefore, appeal was heard in absence of respondent.

7. Heard learned counsel for the appellant at length and perused the record.

8. The question before this Court is whether the appeal can be allowed and a decree be granted to the appellant/plaintiff ?

9. It is explicit from the record of trial court that the suit has been dismissed considering it that the plaintiff is educated even then why the promissory note of Ex. P-/ got written by somebody else and on failure of other land transaction between plaintiff and defendant, defendant has made a complaint of not receiving back the amount but in the opinion of this court in respect of other transaction of land there is no decree in favor of defendant beside the trial court has considered plaintiff to be educated but plaintiff Khaleel has deposed in Para-8 of cross-examination that he is not much educated beside there is no counter claim in respect of other transaction by defendant and if defendant has filed any separate suit, this fact is also not on record.

10. In respect of this suit the notice of Exh. P-2 whose receipt of registry is Ex. P-3 and registered acknowledgment is Ex. P-4, where as on Ex. P/4, defendant has admitted signature then non replying of that make to defence of defendant unsustainable, even in this court defendant did not appear even after getting notice as he refused to receive notice as it appears from process report dated 08.02.10 annexed on process no. 563.

11. Beside, in the facts of the case, as per Para-18, 20,25 of judgment of Kalyan Singh and other Vs. Sanjeev Singh and other 2018(4) M.P.L.J. 277, if any person denies from any fact then burden lies on him to prove that fact, in such a situation if defendant says that he does not have his signature on promissory note then he had this burden that he proved it by examining his signatures regarding that he does not have his signature on Ex. P/1 by Handwriting Expert alongwith expert report. Beside as per judgment of Ramesh Vs. Smt. Ramshree 2008 (1) M.P.J.R S.N. (4), if any notice has been given to party and on receiving the same, no reply has been given then it shall be deemed that the facts of notice are not disputed, the defendant has admitted receiving notice Ex.P-2 in his cross-examination, whose receiving is Ex. P-4, therefore notice Ex. P-2 and fact described therein does not remain disputed.

12. Therefore, as per the above mentioned reasons, the appeal is found to be partly acceptable, hence, appeal is allowed and the judgment and decree dated 30.06.04 of trial court is set aside and it is ordered to respondent/defendant to pay rupees 68,500/- to appellant/plaintiff and pay interest at rate of six percent annually from date of suit till actual payment, and decree be prepared accordingly.

(AVANINDRA KUMAR SINGH) JUDGE

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