PARAMJEET SINGH, J. - (1.) HAVING heard learned counsel for the appellant and for the reasons indicated in the Civil Misc. application, the same is allowed. Regular Second appeal is restored to its original number and taken up for hearing today itself.
(2.) HAVING heard learned counsel for the appellant and for the reasons indicated in the civil misc. application, the same is allowed. Delay of 21 days in filing the appeal is condoned. Instant regular second appeal has been preferred by the appellant -defendant against the judgment and decree dated 16.02.2008 passed by learned Additional Civil Judge (Senior Division), Malerkotla whereby suit filed by the respondent -plaintiff for recovery has been decreed, as well as, against the judgment and decree dated 25.08.2010 passed by learned Additional District Judge, Sangrur whereby appeal preferred by the appellant/defendant has been dismissed. For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance.
(3.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for recovery of Rs.1,97,500/ - against the defendant on the basis of pronote and receipt dated 26.03.2002 alleged to be executed by the defendant in his favour. It was pleaded that on 26.03.2002, defendant borrowed a sum of Rs.1,25,000/ - from the plaintiff and agreed to return the same along with interest @ 2% per month. It was further pleaded that in consideration of the loan amount, defendant executed a pronote and receipt in favour of the plaintiff in the presence of marginal witnesses. After execution of the said pronote and receipt, the defendant did not return any amount despite repeated requests. Hence, suit was filed. Upon notice, defendant appeared and filed written statement denying execution of pronote and receipt. It has been averred that in fact plaintiff borrowed a sum of Rs.2,88,000/ - in the year 1998 from the defendant @ 2% per month in the presence of Gurmit Singh. In the year 1999, plaintiff returned amount of Rs.1,25,000/ - to the defendant. Further in the year 2000, plaintiff returned an amount of Rs.3,000/ - and Rs.1,00,000/ -. Thus, the plaintiff has returned the total amount of Rs.2,28,000/ - to the defendant out of Rs.2,88,000/ - and Rs.60,000/ - is due towards the plaintiff. It has been further averred that in order to grab the amount of Rs.60,000/ -, plaintiff has prepared a false, fictitious pronote and receipt dated 26.3.2002. Rest of the averments made in the plaint were denied. Plaintiff filed replication controverting the averments made in the written statement and reiterating the averments in the plaint. On the basis of the pleadings of the parties, the Court of first instance framed the following issues: - "1. Whether on 26.03.2002, defendant borrowed a sum of Rs.1,25,000/ - and executed the pronote and receipt in favour of the plaintiff? OPP 2. Whether the plaintiff is entitled for interest? If so at what rate? OPP 3. Whether the suit is maintainable? OPP 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the alleged pronote and receipt are forged and fictitious documents? OPD 6. Whether the plaintiff has not come to the Court with clean hands and suppressed the material facts? OPD 7. Relief." ;