CM-4248-C-2025 in/and RSA-5194-2019 (O&M) -1- IN THE HIGH Court OF PUNJAB AND HARYANA AT CHANDIGARH 124 CM-4248-C-2025 in/and RSA-5194-2019 (O&M) Date of decision: 24.04.2025 Sagar Chand Singla ...Appellant(s) Vs. Savita Gupta ...Respondent(s) CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present: Mr. Arihant Goyal, Advocate for the appellant. ***** NIDHI GUPTA, J. CM-4248-C-2025 Prayer in the present application filed under Order 41 Rule 19 read with Section 151 CPC is for restoration of the main case to its original number by way of recalling of order dated 20.01.2025 which was dismissed for non-prosecution. 2. Perusal of the order sheets reveals that though the present appeal is of the year 2019, notice has not yet been issued in the same, as the matter has been adjourned since 2019 till 20.01.2025 either at request or due to non-appearance of learned counsel for the appellant. It was for this reason that vide order dated 20.01.2025, the matter was dismissed for non-prosecution. However, in view of the averments mentioned in the application, the same is allowed, and the main case is restored to its original number by recalling order dated 20.01.2025. The main case is taken up on Board today itself. DIVYANSHI 2025.04.28 10:18 I attest to the accuracy and integrity of this document CM-4248-C-2025 in/and RSA-5194-2019 (O&M) -2- RSA-5194-2019 (O&M) The plaintiff is in second appeal against the concurrent judgments and decrees of the learned Courts below, whereby the suit filed by the appellant/plaintiff for recovery of Rs.1,74,000/- from the defendant/respondent, has been dismissed by both the Courts below. 2. Brief facts of the case as pleaded in the plaint are that the plaintiff is a retired Punjab Govt. Employee and is getting pension from the Punjab Govt. The defendant is the sister-in-law of the plaintiff. The defendant had taken loan of Rs.40,000/- from the plaintiff along with interest @ 12% per annum, as she wanted to invest money. The plaintiff had made the said loan to the defendant vide two demand drafts bearing Nos. 142768 and 142769 both dated 01.03.1999 issued through Punjab National Bank, Kaithal for Rs.20,000/- each. It was pleaded by the plaintiff that the Agreement had taken place in the presence of family members. It is submitted that from the date of extending loan on 1.3.1999 till date of filing of the suit on 14.08.2014, the defendant had been making payments of small amounts to the plaintiff on various dates as enumerated in the plaint. The plaintiff had even served legal notice on 24.07.2014 upon the defendant with a direction to pay principal amount along with interest, however to no avail. As such, the present suit was filed by the plaintiff. 3. Vide judgment and decree dated 16.12.2017, learned trial Court dismissed the suit of the plaintiff with costs. The appeal filed by the DIVYANSHI 2025.04.28 10:18 I attest to the accuracy and integrity of this document CM-4248-C-2025 in/and RSA-5194-2019 (O&M) -3- plaintiff was also dismissed by the learned appellate Court vide judgment and decree dated 10.05.2019. 4. It is submitted by learned counsel for the appellant/plaintiff that the learned Courts below were in patent error in dismissing the suit of the plaintiff as they have failed to take into consideration the fact that last payment was made by the defendant to the plaintiff on 26.02.2013 and the present suit was filed on 14.08.2014. As such, it could not have been held by learned Courts below that the present suit is barred by limitation. It is submitted that the plaintiff had duly proved his case by leading cogent evidence. The plaintiff had even proved the photocopies of the above said demand drafts issued by the plaintiff through secondary evidence. As such, learned Courts below have erred in rejecting the oral and documentary evidence adduced by the plaintiff. It is accordingly prayed that the present appeal be allowed; and impugned judgments and decrees of the learned Courts below be set aside. 5. No other argument is raised on behalf of the plaintiff. 6. I have heard learned counsel for the appellant/plaintiff and perused the case file in great detail. 7. I find no merit whatsoever in the submissions advanced by learned counsel for the appellant/plaintiff. It is undisputed fact on record that the alleged loan was extended by the plaintiff to the defendant on 01.03.1999. It has been submitted by the plaintiff that the said loan of Rs.40,000/- was given to the defendant by way of two demand drafts DIVYANSHI 2025.04.28 10:18 I attest to the accuracy and integrity of this document CM-4248-C-2025 in/and RSA-5194-2019 (O&M) -4- bearing Nos. 142768 and 142769 both dated 01.03.1999 for a sum of Rs.20,000/- each. However, admittedly the original of the said demand drafts were never produced by the plaintiff. Photocopies of the said demand drafts were brought on record as Ex.P2 and Ex.P3. However, no witness was examined to prove the same. The plaintiff was even permitted to prove photocopies of the demand drafts by means of secondary evidence. However, plaintiff failed to prove even photocopies of the demand drafts by any means as provided under Section 63 of the Indian evidence Act. It is well established position in law that two questions in respect of documentary evidence are the relevancy of the said evidence, and the presumption in respect of the said documents. The relevancy of the documents would fall under Section 35 of the Indian Evidence Act which reads as follows: - “35. Relevancy of entry in public [record or an electronic record] made in performance of duty-An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.” 8. The said provision is couched into 2 parts (a) entry; and (b) who deposed regarding documents. As per Sections 102 and 103 of the Evidence Act, a person who asserts the fact, has to prove the fact. In the present case, the documents relied upon by the plaintiff have not been DIVYANSHI 2025.04.28 10:18 I attest to the accuracy and integrity of this document CM-4248-C-2025 in/and RSA-5194-2019 (O&M) -5- proved by producing witnesses to prove the said documents as required under Section 35 of the Indian Evidence Act. Thus, the finding of the learned Courts below to the effect that the documents have not been proven in accordance with law, suffers from no error. 9. Further, it has been averred by the plaintiff that last payment was made by the defendant on 26.02.2013 and therefore, the suit was within limitation having been filed on 14.08.2014. However, plaintiff has not placed on record any document or proof of payment having been made by the defendant on the said date; or even the different dates as shown in document ‘Mark-B’ as stated in the plaint. Admittedly, the loan of Rs.40,000/- was given on 01.03.1999; whereas the suit was filed on 14.08.2014 i.e. after a period of more than 15 years. 10. Moreover, it was incumbent upon the plaintiff to prove that the amount of Rs.40,000/- was received by the defendant. Admittedly, there is no writing or any other document to show that the alleged loan was ever received by the defendant. The said loan has also been stated to have been extended in the presence of family members. However, no witness was examined by the plaintiff before whom the transaction had taken place. 11. It is also to be noted that the loan stated to have been given by the plaintiff to the defendant in Punjab, however the same were encashed at District Kaithal and the suit has been filed at District Rohtak. As such, suit of the plaintiff was not maintainable for lack of jurisdiction. DIVYANSHI 2025.04.28 10:18 I attest to the accuracy and integrity of this document CM-4248-C-2025 in/and RSA-5194-2019 (O&M) -6- Even no acknowledgment of the said payment in writing was brought on record by the plaintiff. As per Section 19 of the Limitation Act, part payment extends period of limitation provided the same is in writing. In the present case, except for the bald statement of the plaintiff, there is no evidence on record to show that the defendant had made any payment. The plaintiff had failed to prove that any part payment was made in writing. 12. Learned counsel for the appellant/plaintiff is unable to dispute or controvert the above said concurrent facts, and findings of the learned courts below. 13. In view of the above, no ground to interfere in the impugned judgments and decrees is made out. 14. The present regular second appeal is dismissed. 15. Pending applications, if any, stand disposed of. 24.04.2025 (NIDHI GUPTA) Divyanshi JUDGE Whether speaking/reasoned: Yes/No Whether reportable: Yes/No DIVYANSHI 2025.04.28 10:18 I attest to the accuracy and integrity of this document