VERMA, J. - (1.) - This appeal by defendant Abdul Rehman is directed against the judgement and decree of the learned Addl. District Judge, Sirohi, whereby suit of respondent firm Rameshwar Dayal Prasadi Lal, a registered partner-ship firm, has been decreed for a sum of Rs. 1,22,096/- with interest vide judgement dated 27. 5. 1978. Briefly stated the case of the plaintiff- respondent is that it is a registered partnership firm carrying on business in the name and style of Rameshwar Dayal Prasadi Lal at Abu Road. Abdul Rehman had money dealings with the plaintiff- firm and the account of Abdul Rehman with the firm was settled on 20. 7. 1974 and a sum of Rs. 1,07,101/- was found due. Abdul Rehman stipulated to repay amount with interest at the rate of 1% per month and executed a promissory note in this regard. The plaintiff firm demanded the amount a number of times but no payment was made and eventually written notice was served on Abdul Rehman on 6. 5. 75 but he did not accept the notice. Upon such averments the plaintiff-firm claimed recovery of Rs. 1,07. 101/ -. on account of principal, Rs. 14,933/- on account of interest and Rs. 21- on account of notice expenses. It prayed for costs. The defendant contested the suit traversing the averments of the plaintiff- firm. It was, denied that Abdul Rehman had executed any promissory-note in favour of the plaintiff firm. It was denied that any settlement of accounts had taken place prior to the alleged execution of the promissory note. It was pleaded that the promissory note was without consideration. A plea was taken that the stamps bearing the signatures of the defendant on the promissory- note were removed from some other document and were affixed to the disputed promissory note and thus the promissory note was forged. Certain other objections were also raised with which I am not concerned in this appeal. The learned trial Judge framed necessary issues and recorded evidence of the parties. In the oral evidence, plaintiff-firm examined P. W. 1 Ambalal and P. W. 2 Samrathmal. In documentary evidence, the promissory-note in question as also certain other Khata entries and promissory note Ex. 2 were filed. The defendant did not file any documentary evidence to examine himself in rebuttal.
(2.) THE learned trial Judge after consideration of the evidence on record held that the plaintiff-firm was a duly registered partnership firm and Rameshwar Dayal Prasadi Lal who had signed plaint was a partner and was authorised to file the suit. It held that there were previous dealings between the parties, accounts were settled and the defendant executed the promissory note which was for consideration. It repelled the contention of the defendant that stamps containing signatures of dependant had been removed from some other document and had been affixed on the suit promissory note. Upon such findings, the learned trial Judge decreed the plaintiff's suit as stated earlier. Aggrieved, defendant Abdul Rehman has come in appeal. The first contention of the learned counsel for the appellant is that in this case even though the defendant had denied the execution of the promissory note, the learned trial Judge did not frame any specific issue about the alleged execution of the promissory note. His next contention is that the plaintiff failed to prove that there were previous dealings between the parties and the account had been settled. It is urged that there was a probability that stamps containing signatures of the defendant had been removed from some other document and had been affixed on the suit promissory note. Lastly it was urged that the plaintiff- partnership consisted of two partners, namely, Rameshwar Dayal and Ambalal. Rameshwar Dayal had died during the pendency of the suit. His legal heirs were not impleaded and hence the suit could not have proceeded without impleading the legal heirs of Rameshwar Dayal and as such the suit ought to have been dismissed, as being incompetent. Upon such pleadings it is submitted that the appeal should be accepted and the decree and judgement passed by the learned trial Judge be set aside. The learned counsel for the plaintiff-respondent has opposed the appeal strenuosly and has urged that the judgement and decree of the learned court below is based upon proper and correct appreciation of facts and law and does not call for any interference. First of all I may consider that even though the defendant had denied the execution of the promissory note, a specific issue was not framed in this s regard. I may straight-way state that both the parties were alive to this issue, Both the parties have led evidence on this issue and the trial court after discussing. the evidence of both the sides had arrived at the conclusion that it was defendant Abdul Rehman who had executed the promissory note. It is true that the learned trial court did not frame a specific issue on the point but framed a issue whether the stamps carrying signatures of the defendant had been lifted from any other document and affixed on the suit promissory note. In my opinion, the appellant has not been prejudiced by non-framing of specific issue in any manner and this contention is neither here nor there. In this regard, learned counsel for the appellant referred to Mohammad Mustafa vs. Sri Abu Bakar and Others (1 ). In my opinion this ruling has no application to the facts of the present case. In that case a particular amendment had been sought and was not allowed by the High Court. The Apex Court allowed the application for amendment and permitted the appellant to amend his written statement. The Apex Court directed that after amendment being filed the respondents may file rejoinder and raise proper issues on the new pleadings and the court may give parties an opportunity to adduce evidence on the newly raised issues. I fail to appreciate how this ruling has any application on the facts of the present case. It is settled law that in case an issue has not been framed but that parties have been alive to the controversy and have led evidence and have not been prejudiced in any manner by non-framing of the issue, then the finding of the trial court on such aspect of the matter cannot be disturbed. The learned counsel for the appellant failed to show how any prejudice had been caused to the appellant at all. I, therefore, find that non-framing of specific issue on this point has lost its importance altogether when both the parties were alive to it and had also led specific evidence on the issue.
(3.) NOW, I may consider whether the finding of the learned trial court that Abdul Rehman had executed a promissory note after settlement of accounts is correct or not. I have gone through the evidence adduced before the learned trial Judge and have critically examined the same Amba Lal who was partner in the plaintiff-firm, in his sworn testimony has deposed that his firm had some money dealings with Abdul Rehman for last 25 or 30 years and the accounts were explained to Abdul Rehman by the 'munim' of the firm and the 'munim' of the firm had scribed promissory note Ex. 1 and Abdul Rehman had affixed stamps on the promissory note and had signed the same. Khata entries were produced by Amba Lal in support of his statement that there were previous dealings between the parties and various sums of rupees had been advanced to Abdul Rehman on different dates, e. g. , a sum of Rs. 7,000/- was advanced on 5. 6. 1974, a sum of Rs. 8,000/- was advanced on 8. 6. 1974, and so on and so forth. It was specifically stated by Amba Lal that all the previous transactions were totalled and this promissory note Ex. 1 was executed. It has been stated by Amba Lal that the promissory note was scribed by 'munim' Samrath Mal. Nothing has come in his cross-examination which may go to discredit him on this aspect of the matter. Samrath Mal is the person who had scribed the promissory note Ex. P. 1. He has specifically stated that he had scribed' the promissory-note at the instance of Abdul Rehman and Abdul Rehman had read over the same and had affixed his signatures. In his cross-examination Samrath Mal has clarified that Abdul Rehman had earlier borrowed certain amounts and account was settled and after adding interest, promissory-note had been executed. Nothing has been elicited in the cross-examination of this witness which may discredit his evidence. The learned trial Judge had critically evaluated the evidence of both these witnesses for the reasons given by him, I am in entire agreement with him that plaintiff succeeded in establishing that there were previous dealings between the parties and accounts were settled* and Abdul Rehman had executed promissory note in question. I may add that Samrath Mal remained 'munim' with the plaintiff-firm for the period 1972 to 1975. On the day his statement was recorded by the learned trial court, he was no longer munim with the plaintiff-firm. He had, therefore, no subsisting interest in the plaintiffi-firm and there is no reason why he will tell a lie to help plaintiff-firm in any manner. The evidence of defendant Abdul Rehman leads credence to the case of the plaintiff-firm. He has admitted that there were dealings between him and the plaintiff-firm but he added that after 1972 he had no dealings with the plaintiff-firm. He has not adduced any cogent or credit worthy evidence to show that his dealings with the plaintiff-firm had come to an end in the year 1972. He has denied that he had executed the promissory note, though he has admitted that the signatures on the stamps are his. His denial is not worth on the paper on which it has been recorded. He has admitted in cross-examination that he had no dispute or differences with the plaintiff-firm. He admits that he is a contractor and had been engaged in contractor ship for last 15 to 20 years. It may be stated that Abdul Rehman has tried to show that he did not maintain any accounts books. As against this the plaintiff had brought his own 'bahis' at the time the accounts were settled. Abdul Rehman did not care to state on oath that he did not bring 'bahis' when the alleged accounts were settled and the promissory-note in question was executed. Abdul Rehman had taken a stand that he was in habit of putting date beneath his signatures and since no date had been affixed below the signatures of Ex. 1, promisorry-note Ex. 1 should be taken to have been forged. He was confronted with the previous promissory-note Ex. 2, which did not carry any date beneath his signature. That shows that Abdul Rehman is not a wholly reliable witness and can tell a Jie to support his own case. In my opinion, the learned trial Judge rightly arrived at the conclusion that there were previous dealings between the parties and account was settled as pleaded by the plaintiff-firm and promissory-note Ex. 1 had been executed by Abdul Rehman. I, therefore, decide this point in favour of the respondent plaintiff-firm and against the appellant. ;