GUWAHATI, India, Sept. 30 -- Gauhati High Court issued the following order on Aug. 30:
1. Nilu Gogoi is the appellant who is aggrieved by the judgment and decree dated 09.01.2024 and 19.01.2024, passed by the learned Civil Judge (Sr. Division), Lakhimpur, North Lakhimpur in Money Appeal No. 01/2021, upholding the judgment and decree dated 09.02.2021 and 19.02.2021, passed by the learned Civil Judge (Jr. Division No. 1), Lakhimpur, North Lakhimpur in Money suit No. 06/2021.The respondent in this case is Smt. Lakhima Dutta Saikia.
2. It is contended on behalf of the appellant that the first Appellate Court has committed gross error and irregularity in deciding the appeal against the appellant in a manner which is not sustainable in the eye of law. Both the Appellate Court of First instance and the Trial Court did not properly scrutinize the case record and failed to examine the issue relating to the alleged borrowing of money by the appellant and relating to the execution of the hand note as well as the deposition of the official witness i.e., witness No. 2 for the defendant.
3. It is further submitted that the Appellate Court as well as the Trial Court have clearly discussed about the disputed amount i.e., Rs. 3 lacs and Rs. 3,55,450/-, being written subsequently on the basis of forensic examination report (Exhibit-A), as well as on the basis of the evidence of official witness i.e., witness No. 2 for the defendant. However, the learned Appellate Court of First instance as well as the learned Trial Court has erred while shifting the burden of proving the disputed amount on the defendant instead of the plaintiff which is bad in law. Both the Courts were silent about the purpose of loan. The Courts have failed to appreciate the evidence of DW1 that the son of the appellant/DW1 cleared his MBBS in the year 2013, which would answer the issue No. 2 relating to the borrowing of money for the purpose of education of the appellant's son.
4. Learned counsel for the Appellant has assailed the decision on the failure of the First Appellate Court to observe that the issue No. 3 was struck out by the order dated 26.11.2020 in M.S. No. 06/2021 which was bad in law. It is contended that whether the alleged agreement between the appellant and the respondent is a valid document as a scrutiny of the document reveals manipulation of Exhibit-1 and its subsequent development i.e., findings of the handwriting expert, of Central Forensic Science Laboratory, Guwahati, Assam. No scope Page No.# 3/9 was accorded to analyse on the findings of any handwriting expert. 5. The learned Trial Court ought to have framed an issue on the manipulated amount added later, which would have had a bearing on the case. The Courts have also failed to appreciate that all the witnesses were interested witnesses. The cross examination of PW2 who is the writer of Exhibit-1 i.e., the hand note was also not taken into consideration. It is further contended that one who seeks equity and approaches for justice should approach with clean hands but the respondent has approached this Court with a manipulated document and thus the learned Trial Court completely erred while deciding the issue No.
4. The learned Trial Court failed to appreciate that the respondent/plaintiff has failed to prove the financial capacity with regard to lending of cash.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqMrZltlEO%2BqgkFLusTrj4xWCWOpJgFxV8VYYBTm6Hcv6&caseno=RSA/70/2024&cCode=1&cino=GAHC010082552024&state_code=6&appFlag=)
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