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2001 DIGILAW 1470 (AP)

Devara Botla Kameswara Rao v. Kalluri Butchayya

2001-11-17

L.NARASIMHA REDDY

body2001
L. NARASIMHA REDDY, J. ( 1 ) THE plaintiff in S. C. No. 14 of 1993 on the file of the Junior Civil Judge, kothapet filed this revision. ( 2 ) THE suit was filed for recovery of an amount of Rs. 2,750/- covered by a promissory note. The respondent filed a written statement denying the very execution of the promissory note. Before the learned trial Court, P. Ws. 1 to 3 were examined on behalf of the plaintiff-petitioner and D. W. I was examined on behalf of the defendant- respondent. The trial Court through its judgment dated 5-11-1999 dismissed the suit. The revision is directed against the said judgment. ( 3 ) THOUGH notice was served, the respondent did not choose to appear in person or through Counsel. The learned Counsel for the petitioner, Sri D. Ramakrishna, submits that the trial Court dismissed the suit only on the ground that the date on ex. A1, the promissory note, appears to have been tampered with. According to him, the respondent failed either to plead or to prove that the date was altered. He submits that when the respondent did not take any plea of limitation, the trial Court was not justified in taking the objection as to limitation by itself and dismiss the suit on the basis of a finding not supported by the contents in the plaint. ( 4 ) THE trial Court can consider the question of limitation in a suit either when it is raised by the defendant or under certain circumstances by the Court itself. When the plea is raised by the defendant, necessary pleading has to be there and an issue has to be framed thereupon. The burden lies upon the defendant to prove and establish that the suit is barred by limitation. However, when the Court consideres the question of limitation in the absence of a plea by the defendant, it has to be guided by the contents of the plaint and no other material (See AIR 1940 Rang. 207 ). The plaint has to be taken on its face value and if the court does not find any averment in the plaint, which has an affect of making the suit barred by limitation, it cannot undertake the further discussion or enquiry into the matter. ( 5 ) IN the present case, the respondent did not raise any plea as to the limitation. ( 5 ) IN the present case, the respondent did not raise any plea as to the limitation. Therefore, it has to be taken that the Court undertook the consideration of the issue on its own accord. However, it was not guided by the contents of the plaint, it has arrived at the conclusion on the basis of an alleged tampering of the date of promissory note. This is not permissible in law. ( 6 ) IT is also to be seen that the finding of the Court below as to the correction of the date was based on surmises. The trial court observed that the number 2 occurring in the date 21-6-1990 appears to have been an articulation of the number 1 . The defendant took no steps to get the so-called correction verified by a handwritting expert. The trial Court appears to have rendered its own opinion upon the controversy and recorded the finding. The difference was only as to the emphasis on the thickness, which cannot be detected except by undertaking a scientific analysis. P. Ws. 1 to 3 have explained the reason for the thickness. When the respondent did not choose to get the same examined through a handwriting expert, the trial Court ought not to have expressed its view and record the finding. The finding is vitiated and cannot be sustained. ( 7 ) THE respondent appears to have taken a plea that he is a small farmer. Since the trial Court dismissed the suit on the ground of limitation, no finding was recorded there against. Since the law permits the plea with regard to judgment-debtor being a small farmer, that question is left open and it shall be open to the petitioner and the respondent to agitate such plea. Therefore, the judgment of the trial Court is set aside and the suit in S. C. No. 14/93 stands decreed. So far as interest is concerned, it is evident that under Ex. A1, the parties contracted for interest at the rate of 24%. The same appears to be exorbitant. Therefore, there shall be decree for interest at the rate of 12% from the date of presentation of the suit.