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2006 DIGILAW 957 (AP)

Gajula Narasaiah v. Basidhar Rao

2006-08-10

L.NARASIMHA REDDY

body2006
ORDER This Civil Revision petition is filed against the judgment and decree, dated 28-11-2003, in A.S.No.16 of 1998 on the file of the learned III Additional District and Sessions Judge (Fast Track Court), Nizamabad. The said appeal was filed against the judgment and decree, dated 30-9-1996 passed by the Court of District Munsif, Armoor, in O.S.No.186 of 1988. 2. Respondents 1 and 2 filed the suit for recovery of a sum of Rs.10,0001-with interest accrued thereon. They pleaded that they purchased a piece of agricultural land from one Sri Venkat Rao and his son Prabhakar Rao. Certain disputes arose in relation thereto. It was alleged that when the first respondent was not in the village, the petitioners herein and respondents 3 to 8 have approached the second respondent stating that they would resolve the disputes between them and their vendors and as a measure to abide by their decision, a sum of Rs.10,000/-each was required to be deposited by both sides. The petitioners herein and respondents 3 to 8 are said to have stated that in case, respondents 1 and 2 do not agree for such a course, the crop would be permitted to be harvested by their vendors or third parties. The second respondent herein is said to have paid that amount, by borrowing from his friends, on 5-11-1985. Respondents 1 and 2 complained that the petitioners herein have neither resolved the dispute nor have refunded the amount, when demanded. A complaint is said to have been made to the local Police Station, who in turn, had issued a notice to the first respondent (sic. petitioner) to resolve the matter. 3. The petitioners and respondents 3 to 8 denied the allegations in the plaint. They pleaded that they did not undertake any mediation or arbitration between respondents 1 and 2 and their vendors and that there was no basis for the claims made against them. They also denied that the account opened in respondent No.9-bank was in relation to the deposit said to have been made by respondents 1 and 2 and their vendors. 4. The trial Court dismissed the suit on 30-9-1996. Aggrieved thereby, respondents 1 and 2 filed A.S.No.16 of 1998 and the same was allowed by the lower appellate Court on 28-11-2003. Hence, the present Civil Revision Petition. 5. 4. The trial Court dismissed the suit on 30-9-1996. Aggrieved thereby, respondents 1 and 2 filed A.S.No.16 of 1998 and the same was allowed by the lower appellate Court on 28-11-2003. Hence, the present Civil Revision Petition. 5. Sri C. Ramesh Sagar, learned counsel for the petitioners, submits that the lower appellate Court deviated from the settled principles of evidence in placing the burden upon the petitioners herein. He contends that it was for-respondents 1 and 2 to prove that they paid the amount to the petitioners herein and they have failed to do so. Learned counsel also pointed out that the account opened by the petitioners herein in respondent No.9bank was for the purpose of establishing an industry and that the lower appellate Court erred, in drawing an inference that the amount deposited therein wa~ the one collected from the respondents 1 and 2 and their vendors. 6. Sri Papa Reddy, learned counsel appearing for respondents 1 and 2, on the other hand, submits that the evidence on record clearly disclosed that the petitioners and respondents 3 to 8 have collected the amount in the name of resolving the disputes and have ultimately, misappropriated the same, without even making any effort in that regard. He submits that the lower appellate Court had appreciated the oral and documentary evidence from the proper perspective and that no exception can be taken to it. He also raised an objection as to the maintainability of the Civil Revision Petition. 7. Before taking up the matter on merits, the question as to the maintainability needs to be dealt with. 8. The Civil Revision Petition is filed against the judgment passed by the lower appellate Court in A.S.No.16 of 1998. Basically, a Second Appeal must be filed. The explanation offered by the petitioners is that the Civil Revision Petition is filed, since a Second Appeal is prohibited against a decree, for a sum less than Rs. 25,000/-. It is true that the value of the decree in the instant proceedings is less than Rs. 25,000/-. However, the contention cannot be accepted, because of the reason that the enhancement of amount specified in Section 102 CPC from Rs. 3,000/- to Rs. 25,000/- is prospective in operation and does not apply to the suits which are pending as on the date of the said amendment. 25,000/-. However, the contention cannot be accepted, because of the reason that the enhancement of amount specified in Section 102 CPC from Rs. 3,000/- to Rs. 25,000/- is prospective in operation and does not apply to the suits which are pending as on the date of the said amendment. Even, if for any reason, the amendment can be said to be applicable to pending suits also, a Revision under Section 115 CPC must be filed and not the one under Article 227 of the Constitution of India. Be that as it may, it can be examined as to whether the judgment of the lower appellate Court suffers from any serious legal infirmity. 9. Respondents 1 and 2 specifically pleaded that they paid an amount of Rs. 10,000/- to the petitioners and respondents 3 to 8 on 5-11-1985, when they insisted on it as a condition precedent for settling the disputes. Similar amount was said to have been collected from the vendors of respondents 1 and 2. Within a few days, the bank account was opened jointly in the names of the petitioners herein, in respondent No.9-bank, the said amount of Rs.20,000/was deposited. Respondents 1 and 2 not only approached the petitioners but also have submitted complaint before the Police Station when their efforts to get back the amount did not fructify. The local Police issued notice to petitioners, which is marked as Ex.A-2. 10. It is not as if the petitioners were either regular businessmen or were in the habit of maintaining bank account. The only deposit made by them was a sum of Rs. 20,000/-, when the account was opened. An explanation was offered to the effect that they intended to open an industry in PVC products and for that purpose, the said deposit was made. Neither any partnership deed nor any memorandum of understanding was brought to the notice of the Court. Further, no correspondence with any industry or Government authorities was forthcoming. The pattern of withdrawals had proved beyond reasonable doubt that the amount deposited in the Bank was the one collected by them, from Respondents 1 and 2 and their vendors. They have misused the very confidence, which the local people have reposed in them, in the matter of settling the disputes. Basically, requiring such amounts to be kept in deposit, as a condition precedent was itself a wrong approach. They have misused the very confidence, which the local people have reposed in them, in the matter of settling the disputes. Basically, requiring such amounts to be kept in deposit, as a condition precedent was itself a wrong approach. Worse were the acts on the part of the petitioners herein, in refusing to return the amount, ultimately, when it emerged that they did not undertake any exercise for resolution of the disputes. This Court does not find any basis to interfere with the order under revision. 11. The Civil Revision Petition is dismissed. 12. Learned counsel for the petitioners submits that his clients may be given the facility of payment of balance of the decretal amount in two monthly instalments. Having regard to the facts and circumstances of the case, the petitioners are granted the facility of payment of the decretal amount in two monthly instalments. The first installment shall be paid on or before 15-9-2006 and the second installment shall be paid on or before 15-10-2006, in default, it shall be open for Respondents 1 and 2 to execute the decree against the petitioners. There shall be no order as to costs.