KARAM DIN Versus ZAHEER UD DIN

This judgment shall dispose of the civil revision in hand, namely, Civil Revision No.639 of 1987 as well as Civil Revision No.721 of 1987.

2. Facts giving rise to these civil revisions are that the petitioner in the instant civil revision, namely, Karam Din alias Khechro, executed an agreement deed, Exh.D.1, in favour of the respondent, Rana Zaheer‑ud‑Din, on 29th October, 1981, stating that he had received Rs. 30,000 from the respondent and undertaking to pay back the said amount to the respondL‑nt within two months failing which the house belonging to him (petitioner) shall stand transferred to the respondent for Rs.35,000 . On the running out of the said period, the petitioner riled a suit alleging that he had returned Rs.30,000 to the respondent and prayed for a declaration to the effect that he was owner of the house mentioned in the agreement deed. He also sought cancellation of the said deed. On the other hand, the respondent brought a suit for specific performance of the agreement embodied in Exh. D.1, alleging that the amount of Rs.30,000 had not been paid to him within the stipulated period. Both the suits were decided by one and the same Civil Judge but by means of separate judgments. The learned Civil Judge reached the conclusion that the amount of Rs.30,000 had not been paid by the petitioner. Resultantly, he dismissed the suit of the petitioner but decreed the suit of the respondent on payment of Rs.5,000 (balance of the sale price, namely, Rs.35,000 mentioned in the agreement deed, Exh. D.1, and the said amount of Rs.30,000 paid to the petitioner at the time of execution of the above deed). Petitioner filed two separate appeals before an Additional District Judge but without success. Hence the civil revisions mentioned at the outset.

3. The suits were at the stage of arguments when the petitioner made an application, before the learned Civil Judge, for permission to produce a receipt as additional evidence. According to him, the respondent had executed the said receipt on getting back Rs. 30,000 from him. The learned Civil Judge did not accede to his request and the suits were decided on the basis of the evidence already on the record.

4. When the matter came up before the 'learned Additional District Judge, the only point canvassed by the petitioner before him was that the order of the learned Civil Judge, whereby he refused to receive the receipt as additional evidence, was not in accordance with law and called for interference by the learned Additional District Judge. His plea, however, did not find favour with the learned appellate Court and, accordingly, the two appeals were dismissed. The petitioner did not assail any finding of the learned Civil Judge before‑the learned appellate Court on the issues struck by the learned trial Court.

5. Today, also, during the course of arguments on the two civil revisions before me, learned counsel for the parties were unanimous that the only' question involved in this case was whether the learned Civil Judge was justified in refusing to receive the receipt in question as additional evidence.

6. It was contended by learned counsel for the petitioner that the receipt in question had been misplaced and, therefore, he could not produce it before the learned trial Court in time. According to him, his plea in this regard was supported by an affidavit which had not been rebutted by the respondent by filing a counter‑affidavit.

7. in reply, it was maintained by learned counsel for the respondent that the plea of the petitioner with regard to payment of Rs.30,000 runs counter in his pleadings inasmuch as in his pleadings it had been averred by him that the agreement deed was got executed by the respondent by fraud. According to learned counsel for the respondent, if he was not owning the agreement in question, the question of his paying back Rs.30,000 under that agreement didn't arise. It was further pointed out by learned counsel for the respondent that neither in the plaint of the suit filed by the petitioner nor in the written statement put in by him in the suit brought by the respondent it was alleged that he had paid Rs.30,000 against the receipt. As for the application of the petitioner, argument of learned counsel for the respondent was that it was a belated attempt on the part of the petitioner to defeat the suit filed by the respondent and to win the suit brought by him (petitioner). Additionally, it was urged by learned counsel for the respondent that there were concurrent findings of the two Courts below against the petitioner and those findings did not call for interference by this Court.

8. While commenting on the arguments of learned counsel for the respondent, it was submitted by learned counsel for petitioner that in the list of reliance filed by the petitioner alongwith his written statement, in the suit instituted by the respondent, it was indicated by the petitioner that he would produce receipt regarding the payment of Rs.30,000 in due course.

9. The main question involved in the two suits was whether the petitioner had paid back Rs.30,000 to the respondent. The receipt in question, if it was actually executed before the riling of suit, had, therefore, lot of bearing on the said question and must have been mentioned by the petitioner not only in the plaint of the suit instituted by him but also in the written statement of the suit Filed by the respondent. he had, however, failed to do so. No explanation is forthcoming with regard to the aforesaid omission on the part of the petitioner. Even if he had not made a mention of the receipt in his pleadings he should have filed the receipt or a copy thereof alongwith his plaint or alongwith his written statement but this too was not done by him.

10. As for the fist of reliance, following writing appears in column 3 of entry against serial No.2 of the list:‑‑

I am surprised over the use of the words (Bewaqat-e-zarorat) in the aforementioned list because, as explained above, the receipt in question was mainstay of the petitioner's case. If it was actually with him at the time of the filing of the said list, he should not have waited for the framing of the issues. Strangely enough, even after the issues were.struck, he did not produce the disputed receipt when he was leading evidence in the two cases. Further, above entry in the list of reliance, in a way, belies the petitioner's plea that the receipt. had been misplaced because the entry gives an impression that the receipt was with tile petitioner but he decided to withhold it till the framing of the issues. In my opinion, therefore, the said list does not reflect well on the plea of misplacement of the receipt and runs against his contention in this regard.

11. It is also noteworthy that the receipt in question or a copy thereof has not been shown to me. It had not been riled in any of the two cases under discussion. Perhaps, the receipt has been purposely withheld by the petitioner because the learned Additional District Judge, who was fortunate enough to have a look at it, expressed doubt with regard to the genuineness thereof by saying that there was overwriting on the date appearing on the receipt. I a '0' appreciate this argument of learned counsel for the respondent that the plea of fraud raised by the petitioner in his pleadings and his plea that he had paid back Rs.30,000 are mutually destructive.

12. Upshot of the above discussion is that the two Courts below were justified in refusing to receive the disputed receipt as additionall evidence. Their orders in this regard do not suffer from any illegality or material irregularity and, therefore, do rot warrant any interference by this I Court.

13 As stated earlier, no other point was canvassed in this case

14. Resultantly, both the civil revisions fail. They are, accordingly, dismissed, with costs.

AA./K‑27/1

Revisions dismissed