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2000 DIGILAW 763 (AP)

Amararupu Pathuru v. Gundeboina Lingaiah

2000-10-07

P.S.NARAYANA

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( 1 ) HEARD Smt. M. Renuka representing venugopal Rao, the learned Counsel representing the revision petitioner and mrs. S. Renuka, learned Amicus Curiae, appointed to assist the Court. ( 2 ) THIS C. P. C. is filed under Section 115 c. P. C. as against the Judgment in A. S. No. 371 /95 on the file of Senior Civil Judge, gurazala, old number being A. S. No. 107/95 on the file of the Subordinate Judge, narasaraopet. The revision petitioner is the defendant in the suit and the respondent is the plaintiff. The parties may be referred to as plaintiff and defendant for the purpose of convenience. ( 3 ) THE case of the plaintiff is that the defendant borrowed a sum of Rs. 5,000/- under a promissory note, dated 10-5-1992, agreeing to repay the same with interest at 24 per cent per annum. Since it was borrowed from the transferor of the plaintiff at Daida village, on the same day the defendant had endorsed on the second sheet of the promissory note and he failed to repay the amount and the suit promissory note was transferred by the original holder on receipt of consideration in favour of the plaintiff. Since the defendant has failed to repay the same, the plaintiff got issued a registered notice demanding the payment and there was no reply to the said notice. Hence, the suit was filed for recovery of amount. ( 4 ) THE defendant filed written statement denying the allegations including the borrowal of the amount. ( 5 ) THE Court of first instance framed the following issues: (1) Whether the plaintiff is entitled for the decree as prayed for? (2) Whether the pronote is a forged one as alleged by the defendant? (3) To what relief? ( 6 ) IN the Court of first instance, P. Ws. 1 to 4 were examined and Exs. A-1 to A-5 were marked and on behalf of the defendant, D. W. I was examined. (2) Whether the pronote is a forged one as alleged by the defendant? (3) To what relief? ( 6 ) IN the Court of first instance, P. Ws. 1 to 4 were examined and Exs. A-1 to A-5 were marked and on behalf of the defendant, D. W. I was examined. ( 7 ) THE Court of first instance after appreciating oral and documentary evidence had dismissed the suit without costs and aggrieved by the said Judgment and decree made in O. S. No. 371/95 on the file of the Principal District Munsif, gurazala, dated 24-10-1995, originally a. S. No. 107/95 on the file of Subordinate judge, Narasaraopet was filed and it was transferred to Senior Civil Judge, Gurazala and numbered as A. S. No. 371/95. The appellate Court had allowed the appeal by its judgment and decree dated 7-9-1999, and aggrieved by the same, the present C. R. P. is filed. ( 8 ) WHEN the matter is taken up for hearing, the learned amicus curiae mrs. S. Renuka had pointed out that as against the Judgment in a regular appeal in a. S. No. 317/95, revision under Section 115 c. P. C. is not maintainable and the remedy is only by filing a second appeal under section 100 of the Code of Civil Procedure. Section 102 of the Code of Civil Procedure dealing with second appeal in certain suits specifies that no second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed Rs. 3,000/ -. It is not in dispute that originally a suit was filed and the matter was carried in appeal and as against the said judgment and decree, the aggrieved party should have preferred only a second appeal and the remedy of revision is only a misconceived remedy since the revision petitioner is not entitled to invoke section 115 C. P. C. in the facts and circumstances of this case. Hence, I have no hesitation in holding that the C. R. P. is not maintainable. However, Mrs. M. Renuka, the learned Counsel representing the revision petitioner on behalf of mr. Hence, I have no hesitation in holding that the C. R. P. is not maintainable. However, Mrs. M. Renuka, the learned Counsel representing the revision petitioner on behalf of mr. Venugopal Rao had submitted that in fact the Office had taken an objection and hence the revisional jurisdiction was invoked instead of second appeal at jurisdiction of the High Court and it is a bona fide mistake on the part of the advocate s office as such. Hence liberty is given to the revision petitioner to convert the C. R. P. into a Second Appeal after complying with all the necessary formalities of payment of the requisite Court-fee and other procedural formalities to be complied with in this regard. The C. R. P. is accordingly disposed of and the office is directed to return the papers to the Counsel for the revision petitioner to comply with all i the formalities specified supra. ( 9 ) WITH the above directions, the C. R. P. , is disposed of. No order as to costs. ( 10 ) THE Court records its appreciation for the assistance rendered by Mrs. S. Renuka, the learned amicus curiae.