2025:HHC:21727 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 244 of 2015 Reserved on: 24.6.2025 Date of decision: 8.7.2025. Devinder Singh Bhalta ...Appellant Versus Bal Krishan Rawat ...Respondent Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1No. For the appellant: Mr. Suneel Awasthi, Advocate. For the respondent: Mr. V.S. Chauhan Senior Advocate with Mr. Arsh Chauhan, Advocate. Satyen Vaidya, Judge: This Regular Second Appeal has been filed against the judgment and decree dated 11.7.2014, passed by the learned Additional District Judge-I, Shimla in Civil Appeal No. 53-S/13 of 2013/12, whereby the judgment and decree dated 31.5.2012, passed by the learned Civil Judge (Sr. Division) Court No.1, in Civil Suit No. 72/1 of 2009/08 has been set aside and the suit of the plaintiff has been decreed. 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 2. The appellant herein was defendant and respondent herein was the plaintiff in original suit bearing Civil Suit No. 72/1 of 2009/08. For convenience, the parties hereafter shall be referred to by the same status, as they held before the learned trial Court. 3. The plaintiff filed a suit for recovery of Rs. 5,41,280/- with interest pendent-lite and future at the rate of 12% per annum. As per plaintiff, the suit amount included a sum of Rs. 3,98,000/- as the principal amount and Rs. 1,43,280/- as interest calculated at the rate of 12% per annum from 10.7.2005 to 10.7.2008. 4. The plaintiff had averred that he was an orchardist. In addition, he worked for fruit commission agent named and styled as M/S BHS, Delhi. The plaintiff used to advance money to local orchardists in lieu of supply of apple crops to M/S BHS, Delhi. The plaintiff also mentioned that in addition, he was also supplying packaging materials etc. to the apple growers during the apple season. According to the plaintiff, this was his private arrangement, separate from his dealing with M/S BHS, Delhi. -3- 5. Plaintiff had further alleged that the defendant had taken advance of Rs. 1,00,000/- and Rs. 3,00,000/- from him on 10.2.2005 and 10.7.2005 respectively. It was specifically averred that out of Rs. 1,00,000/- advanced on 10.2.2005, Rs. 40,000/- was paid by cheque and Rs. 60,000/- in cash. As per plaintiff, he has been maintaining entries in a ledger and had obtained the signatures of the defendant on the ledger in token of the amount advances to him. 6. As per plaintiff a notice of demand was issued to defendant before filing of suit but the defendant neither paid the amount nor replied to the notice. 7. The plaintiff also admitted to have received a sum of Rs. 2000/- against the money advanced to defendant and thus, the principal amount was calculated at Rs. 3,98,000/- being balance out of Rs. 4,00,000/-. 8. The defendant has contested the suit. He filed written statement, raising various preliminary objections, viz. the maintainability of suit, cause of action, locus standi, estoppel, non-joinder of necessary parties and limitation etc. On merits, he denied to have taken any -4- money from the plaintiff. As per defendant, he was a government servant and did not require money. He had also denied having any orchard. Aspecific defence was raised that defendant had stood as guarantor for one Jiwan Lal to secure the payment of Rs. 40,000/- only. 9. Further, the plaintiff has been accused of filing false and frivolous suits against several persons in the locality and more than thirty cases were stated to have been filed by him. He has also been accused for obtaining signatures of the people on blank papers. 10. The defendant further stated that he had not received any legal notice from the plaintiff. Rather, the only notice received by him was dated 17.6.2008 in which a different demand of Rs. 1,55,000/- only was made. 11. Learned trial Court framed the following issues:- “1. Whether the plaintiff is entitled for recovery of Rs. 5,41,280/- alongwith interest as claimed for? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit is not within limitation? OPD 5. Whether the plaintiff is estopped from filing the present suit? OPD -5- 6. Relief.” 12. All issues except issue No.3 were answered in negative. Learned trial Court dismissed the suit of the plaintiff. 13. Plaintiff assailed the judgment and decree passed by the learned trial Court by filing appeal under Section 96 of the Code of Civil Procedure (for short the ‘Code’), which came to be registered as Civil Appeal No. 53- S/13/2013/12 in the Court of learned Additional District Judge-I, Shimla. The appeal of the plaintiff has been allowed, hence this Regular Second Appeal. 14. This appeal was admitted for hearing on following substantial question of law vide order dated 5.8.2015:- “Whether on account of mis-appreciation of the pleadings and law and also mis-reading of the oral as well as documentary evidence, available on record, the findings recorded by the lower appellate Court are perverse and erroneous and as such, the judgment and decree under challenge being vitiated is not legally sustainable?” 15. I have heard learned counsel for the parties and have also gone through the record carefully. -6- 16. Learned trial Court dismissed the suit mainly on the premise that the plaintiff had not been able to prove the entries in ledger Ext. PW1/A, in accordance with law. Learned trial Court also did not find any corroboration to the version of plaintiff. 17. The learned First Appellate Court reversed the findings returned by the learned trial Court on re- appreciation of evidence. Learned First Appellate Court has taken into consideration certain facts which according to it had corroborated the version of the plaintiff. The admission made by the defendant of having returned Rs. 2000/- and Rs. 40,000/- to the plaintiff, has been held to be the circumstance negating the defence of the defendant. It has also been found that the notice Ext. DX was not having link with the transactions alleged in the suit. Learned First Appellate Court also undertook the exercise to compare the signatures of defendant on Ext. PW1/A with his signatures on Vakalatnama and summons and found similarity in both. 18. Since the judgment of learned trial Court has been reversed by the learned First Appellate Court, it will -7- not be impermissible to have a look at the evidence led by the parties. 19. The plaintiff examined himself as PW-1 and in his deposition reiterated the stand taken in the plaint. He produced the original of ledger and on its basis exhibited a copy as Ext. PW1/A. He categorically stated that the money was advanced to defendant in presence of one Roop Chand. In cross-examination PW-1 has stated that he was maintaining the ledger only to evidence the advances made to the growers. The ledger was being maintained since 2003 which was neither closed after the financial year nor the entries were carried forward. He had also not maintained any cash book. Though, he was an income tax payee but he was not disclosing the transactions of advances in his returns because according to him, it was exempted. He also admitted that he knew Jiwan Lal. The issuance of notice Ext. DX dated 7.3.2008 was also admitted. It was also admitted that the defendant was guarantor for Jiwan Lal. 20. To prove his case, the plaintiff also examined Sh. Roop Chand as PW-2. This witness stated that he knew -8- the defendant, who hailed from his village and both were also related to each other. According to this witness, the transactions had taken place between the plaintiff and the defendant in his presence. The defendant had borrowed a sum of Rs. 3,00,000/- from the plaintiff in his presence and had also signed the ledger. In cross-examination, neither the factum of PW-2 being related to the defendant was challenged, nor his statement to the effect that the defendant had signed the ledger in his presence, had been confronted. Rather, it was suggested to the witness that he was deposing falsely because he had strained relation with the defendant. 21. On the other hand, the defendant examined himself as his sole witness. He stated that he had not taken any money from the plaintiff. According to the defendant, few years back, he had stood as guarantor for Jiwan Lal and except for that he had never entered into any transaction with the plaintiff. The defendant further stated that he returned Rs. 40,000/- to the plaintiff and placed reliance on a receipt Mark D-1 dated 25.2.2012. Defendant refused to acknowledge the signatures on Ext. -9- PW1/A to be his. He also stated that he was a government servant and did not require any money. In cross- examination he admitted that he owned an orchard having few apple plants. He admitted that he had received advance from the plaintiff in the year 2005 and simultaneously volunteered that in lieu he had returned Rs. 52,000/- to the plaintiff and for such purpose, he again made reference to receipt Mark ‘D’. Another admission made by the defendant is that he had assured the plaintiff after receiving the advance that he would refund the amount. At one point defendant stated that he did not remember whether he had signed the ledger while receiving the advance on the other. 22. In the form of documentary evidence, the plaintiff proved on record copy of ledger Ext. PW1/A, copy of notice dated 9.5.2007 Ext. PW1/B along with postal receipt Ext. PW1/C. The defendant placed reliance on a copy of notice dated 17.6.2008 Ext. DX and receipt dated 25.2.2012 Mark ‘D-1’. 23. Learned counsel for the defendant has taken strong exception to comparison of signatures by learned -10- Appellate Court in exercise of powers under Section 73 of the Indian Evidence Act. According to him, the course adopted by the learned Appellate Court was not permissible. He placed reliance on a judgment passed by the Hon’ble Supreme Court in Thiruvengadam Pillai vs. Navaneethammal & another, 2008 (4) SCC 530 and a judgment passed by the Hon’ble Single Judge of Punjab & Haryana High Court on 21.11.2022 in RSA No. 1494 of 2016, titled Vijay Kumar Aggarwal vs. Khushal Singh to support his arguments. 24. Having considered the rival submissions as also the material on record, I find no reason to interfere with the impugned judgment. It is not that the learned First Appellate Court has passed its judgment only on the basis of comparison of signatures. The learned First Appellate Court has rightly taken into consideration various other facts, as noticed above. 25. Section 73 of the Indian Evidence Act vest the courts with powers to compare the hand writings or the signatures. This does not mean that the court while doing so acts as an expert. The comparison made by the court, -11- as per settled proposition of law cannot be made sole basis for adjudication of issue involved. Reference can be made to the judgment passed by the Hon’ble Supreme Court in Ajay Kumar Parmar vs. State of Rajasthan, (2012) 12 SCC 406 in which, it has been held as under:- “28. The opinion of a handwriting expert is fallible/ liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is -12- an opinion whether of an expert, or of any witness, the Court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision”. 26. In Thiruvengadam Pillai vs. Navaneethammal & another it was not a case of comparison of signatures by the Court. The comparison was done on the finger impressions, which definitely require expertise, whereas same amount of skill may not be necessarily required while making comparison of signatures. In any case the proposition of law laid down in Thiruvengadam Pillaican not be said to be adversative to what has been held in Ajay Kumar Parmar supra. Same can be said about the judgment passed by the learned Single Judge of Punjab & Haryana High Court in Vijay Kumar Aggarwal, as relied upon on behalf of defendant. 27. Returning to the facts of the case, a few glaring facets are worth notice. The defendant has made admissions that he had paid Rs. 52,000/- and 2000/- to the plaintiff. At another place, he had affirmed to have paid Rs. 40,000/- to the plaintiff. One can find further -13- admissions of defendant in his cross examination whereby he had accepted having received advances from the plaintiff and also having assured the plaintiff about the return of the payments received by him. 28. Noticeably, defendant has placed reliance on the photocopy of receipt dated 25.2.2012 ‘Mark D’ to corroborate his version of having made payment to plaintiff. On 25.2.2012, the original suit was pending before the learned trial Court. The decree was passed by the learned trial Court on 31.5.2012 i.e. after about one week of the alleged execution of receipt ‘Mark- D1’.By that time, the entire trial was complete. It is hard to believe that the defendant would make payment of Rs. 40,000/- or Rs 52,000/- to the plaintiff during the pendency of the suit without bringing the factum of payment to the notice of the Court. 29. Viewed from another angle, in case the defendant had not taken any advances from plaintiff, why he paid Rs. 52,000/- and Rs. 2000/- to plaintiff, has remained unexplained. -14- 30. Thus, what has been found is that on one hand, defendant has denied having received any money from plaintiff and on the other, he has made admissions regarding return of money. 31. Further, in the plaint, the plaintiff had specifically submitted that while making the advance of Rs. 1,00,000/- to the defendant, he had paid Rs. 40,000/- through cheque. This fact has not been specifically denied by the defendant. The defence raised by defendant is that he stood guarantor for Jiwan Lal to the extent of Rs. 40,000/-. Thus, an explanation has been sought to be rendered that the money returned by the defendant to the plaintiff was against the transaction relating to Jiwan Lal, but, the same does not appear to be plausible for the reasons firstly, that the defendant has not specifically denied the averment that Rs. 40,000/- was paid to him by cheque and secondly there is no explained reason as to why the defendant had repaid the money borrowed by Jiwan Lal. 32. Yet another facet of the matter is that the defendant did not challenge that part of the statement of -15- PW-2 wherein the said witness had clearly stated to have witnessed signing of ledger by defendant in token of advances received by him from the plaintiff. 33. Moreover, it was not a recovery suit based strictly on books of accounts, as perceived by learned trial court. As per plaintiff, he was making advances to the apple growers against consideration of selling their produce to M/S BHS, Delhi and it was only entries of such advances for which he was maintaining the record. The facts that neither any cash book was being maintained nor the closure or carry forwarding of accounts was being done, makes clear that the nomenclature of ‘ledger’ used in the case was misrepresentative. It was just a private account maintained by the plaintiff for his personal protection. The plaintiff has used the aforesaid ledger only to prove the acknowledgment of the debt. Even if the entries in Ext. PW1/A are ignored still there is sufficient material on record to prove the case of the plaintiff. 34. The mere fact that the notice Ext. DX was issued by the plaintiff to the defendant again will not be sufficient to discard the case of the plaintiff for the reasons that the -16- contents of Ext. DX referred to the transactions of advances taken by Jiwan Lal. The defendant himself had admitted that Jiwal Lal had taken advance from the plaintiff and defendant was a guarantor to such transaction. 35. In light of above discussion, the substantial question of law is answered in negative. 36. In result, the appeal fails and is accordingly dismissed. Judgment and decree dated 11.7.2014, passed by the learned Additional District Judge-I, Shimla in Civil Appeal No. 53-S/13 of 2013/12 is affirmed. 37. The appeal is accordingly disposed of. Pending applications, if any, are also disposed of. 38. Decree sheet be prepared accordingly. 39. The record be sent back forthwith. (Satyen Vaidya) 8th July, 2025. Judge (kck)