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1980 DIGILAW 240 (KAR)

KARIBASAMMA v. PATEL SANGAPPA

1980-09-03

M.P.CHANDRAKANTARAJ

body1980
( 1 ) THIS is a plaintiff's revision petition against the judgment and decree of the addl. Civil Judge, Shimoga, in S. C. Suit No. 441/1974. ( 2 ) THE plaintiff filed the suit in the court below to recover a sum of Rs. 1500 as principal and a sum of Rs. 224 as interest on the basis of a document executed by the defendant on general stamp paper of the value of Rs. 2. One of the recitals in the document which was marked as Ex-P-1 in the Court below was that the defendant had received the sum of Rs. 1500 on certain conditions. In the recital it was further stated that he had received the amount of consideration mentioned in the document. Strangely, the document was drawn by the defendant himself. In spite of a legal notice, he failed to pay the amount and therefore the suit was filed. In the written statement the defendant, while admitting receipt of Rs. 550 in respect of the transaction as per Ex-P-1, nevertheless stated that the whole transaction was spurious and that the plaintiff came to his house at Bhadravathi and put a proposition of allowing her two sons to cultivate two acres of wet land belonging to the defendant first proviso -- Pronote - Evidence for a period of three years in consideration of which she would pay Rs. 1500 to the defendant and he accepted the same and not being conversent with the drafting of legal document, he used the stamp paper of the value of Rs. 5 bought by one Devegowda for his purposes and wrote Ex P-1. He further took the stand in the Court below explaining the reasons as to why he had not replied the legal notice which was caused to be issued by the plaintiff. The Court below on the pleadings formulated the following points for determination. (1) Whether the defendant proves that the plaintiff paid only Rs. 550 and not Rs. 1500? (2) Whether the defendant further proves that he repaid the amount of Rs. 550 to the plaintiff on 30-6-1974? (3) Whether the plaintiff is entitled to the amount sought for?2. On Point No. 1, the Court below held that the defendant had proved that he had received only Rs. 550 and not Rs. 1500/ -. 550 and not Rs. 1500? (2) Whether the defendant further proves that he repaid the amount of Rs. 550 to the plaintiff on 30-6-1974? (3) Whether the plaintiff is entitled to the amount sought for?2. On Point No. 1, the Court below held that the defendant had proved that he had received only Rs. 550 and not Rs. 1500/ -. On Point No. 2, the court below held that the defendant had not proved the repayment of Rs. 550. In the result, the Court below decreed the suit of the plaintiff for Rs. 550. Aggrieved by the refusal of the court below to decree the suit as prayed for, the plaintiff has preferred this revision petition, inter alia, contending that it was not open to the court below to permit the defendant to lead evidence to prove variation in the quantum of consideration which was recited in the document as it was hit by Sec. 92 of the Indian Evidence Act, ( 3 ) IN support of that contention, the learned Counsel appearing for the petitioner, has relied upon two decisions, namely, one of the High Court of Madras and the other of the High court of Patna. In the case reported in A. I. E. 1965 Madras 147 and in the case reported in A. I. R. 1958 Patna 61, the learned Judges of the respective high Courts have, in fact, held on a literal construction of Sec. 92 proviso (1) that while it is permissible for a party to a document to lead evidence, as to failure of consideration, want of consideration and the kind of consideration it will not be open for such party to lead evidence in regard to the quantum of consideration mentioned in the document. However, these decisions will not be of much assistance to the petitioner because a Division Bench of our High Court in the case of k. S. Rajansa v. S. M. Dhondusa, (1970) 1 Mys. L. J. 489. has positively ruled that even the quantum of consideration can be proved by oral evidence under the 1st proviso to Sec. 92 of the Indian Evidence Act. L. J. 489. has positively ruled that even the quantum of consideration can be proved by oral evidence under the 1st proviso to Sec. 92 of the Indian Evidence Act. Narayana Pai, J. , as he then was held as follows:"it is of course permissible to prove either that no consideration as set out in the document had been received or that a portion thereof alone had been received or that satisfaction has been received in respect of consideration in a manner otherwise than set out in the document. " (Underlining (italics) is mine) ( 4 ) THE above ruling being one of binding nature on me, I have to reject the contention advanced by the Counsel for the petitioner that it was not open to the defendant to prove inadequate consideration or that he received only a portion, of that consideration. ( 5 ) HOWEVER, records of the Court below had been called for in this case. On going through the pleadings of the parties and on a close examination of Ex-P-1 it is discovered that stamp paper referred to by the defendant in the written statement as being of the value of Rs. 5 is belied ex facie as Ex-P-1 was drawn on a general stamp paper of the value of Rs. 2. Further the assertion of the defendant in hist written statement which was that a stamp paper bought by one Devegowda for his purposes was utilised by the defendant to draw up the instrument in question is also belied ex facie as the stamp paper was issued in the name of the defendant himself. Had this been noticed by the Court below, it would not have appreciated the evidence of defendant in the manner it has done. In fact, the Court below has totally misdirected itself in appreciating the evidence in the case and believing the defendant's version that only Rs. 550 was passed as consideration. On account of this failure to notice the inconsistent stand taken by the defendant in the written statement and the actual condition of ex-P. 1, I am satisfied that there has been a miscarriage of justice. The learned Judge has failed to exercise the jurisdiction vested in him and has acted with material irregularity. 550 was passed as consideration. On account of this failure to notice the inconsistent stand taken by the defendant in the written statement and the actual condition of ex-P. 1, I am satisfied that there has been a miscarriage of justice. The learned Judge has failed to exercise the jurisdiction vested in him and has acted with material irregularity. ( 6 ) THEREFORE, the matter is remanded to the Addl Civil Judge, Shimoga, to consider the case of the plaintiff and the defendant on the evidence already on record after obtaining clarification from the defendant as to the inconsistency between Exhibit-P-1 and his assertions in the written statement in that behalf. The order under revision is set aside only in respect of the refusal of the Court below to decree the suit in full. In other respects, the findings of the Court below are npt disturbed except to the extent indicated in this order. ( 7 ) THE petitioner-plaintiff and the respondent defendant shall appear in the Court of the Additional Civil Judge, shimoga, on 22nd October, 1980. The record of the lower Court will be returned forthwith. ( 8 ) THERE will be no order as to costs. --- *** --- .