- (1.) HEARD learned counsel for the appellant.
(2.) BY this appeal under Section 96 read with Order 41 Rules 1 and 2 C.P.C., the plaintiff-appellant seeks to challenge the impugned judgment and decree dated 14th January,2010 passed by learned District Judge, Dholpur in civil suit no.20/2008 whereby the suit of the plaintiff appellant for recovery of original debt Rs.1,00,000/- and interest amount of Rs.72,000/- from the defendant-respondents has been dismissed. Briefly stated the facts of the case are that the plaintiff appellant filed the aforesaid suit for recovery of the said amount of Rs.1,72,000/- from the defendant-respondents with the averments that late Shri Shamim Ahmed, father of defendant no.1 and husband of defendant no.2 on 28.2.2006 borrowed Rs.1,00,000 from him for the business of his factory Bharat Carborate at 3% per cent per month interest and in token of which a slip (Teep) was written by him which contains signatures of the witnesses and also attested by the Notary and the same was handed over to him. It was mentioned that in the slip mode of repayment was also prescribed according to which the entire borrowed debt was to be repaid with interest within two years in the installments of Rs.25,000/-. It was mentioned that even after passing of one year from the death of Shamim Ahmed not a single penny was paid by the defendants. On 15.2.2008 he send a registered notice to the defendants for making payment of the debt amount within 15 days from the date of receipt of the same but nothing was paid to him. Thus, the suit for recovery of Rs.1,72,000/- was filed by the plaintiff. In the written statement, the defendants denied the averments regarding borrowing any amount by Shamim Ahmed. In the additional pleas it was mentioned that the plaintiff is running a small shop of firewood and is not having earning more than Rs.100-150/- per day and, therefore, it is not believable that he gave Rs.1,00,000/- to Shamim Ahmed. It was also mentioned that giving loan through agreement is not legal and the plaintiff is not having any money lending licence. The witnesses of the written slip are the relatives of the plaintiff. Rate of interest was also disputed. Thus, it was prayed that the suit of the plaintiff be dismissed. On the basis of the pleadings of the parties, the learned trial court framed three issues. Issue no.1 is to the effect whether the father of defendant no.1 and husband of defendant no.2 on 28.2.2006 borrowed Rs.1,00,000/- from the plaintiff at 3% per month interest and wrote a written slip (Teep) in favour of the plaintiff ? Issue no.2 is to the effect whether the plaintiff is entitled to recover due amount Rs.1,72,000/- with interest from the defendants ? To prove his case, the plaintiff Bashir Khan appeared in the witness box as PW.1 and got examined Mujeed Khan PW.2 and Intjar Khan PW.3 and also got exhibited documents Ex.P.1 to P.5. In defence, the defendants got examined three witnesses namely, Saleem Ahmed DW.1, Niyamat Khan DW.2 and Noor Mohammad DW.3.
(3.) PLAINTIFF appellant Bashir Khan in his statement has deposed that for giving loan of Rs.1,00,000/- to Shamim Ahmed he took amount of Rs.50,000/- from his brother-in-law (?????) of Gwaliar and Rs.50,000/- from Yakub Tempowala but neither his brother-in-law (?????) nor Yakub Tempowala was got examined by him. The trial court also considered the fact that there is no independent witness regarding execution of the slip (Teep) Ex.P.1 and the plaintiff has also failed to prove the same by examining Typist, Advocate or Notary Public to prove execution of document Ex.P.1 and after appreciating the evidence while deciding issue no.1, the trial court came to the conclusion that the said document Ex.P.1 seems to be forged and the plaintiff has not been able to prove the fact of giving loan of Rs.1,00,000/- to Shamim Ahmed by him and dismissed the suit. Submission of the counsel for the appellant is that execution of the written slip (Teep) Ex.P.1 has been proved by the plaintiff and, therefore, the learned trial court has committed error in dismissing the suit of the plaintiff appellant. ;