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2009 DIGILAW 372 (AP)

Koneti Bhaskar Reddy v. Guladurthi Lakshmi Devi

2009-06-15

L.NARASIMHA REDDY

body2009
JUDGMENT These two second appeals are preferred by the same person. The sale respondents, in the two second appeals, are wife and husband. The nature of transactions, which are the subject matters of the second appeals, is similar. Hence, they are disposed of through a common judgment. 2. Sri G. Seetharamireddy, respondent in S.A.No. 1256 of 2008, is the maternal uncle of the appellant, and husband of Smt. Lakshmi Devi (respondent in SA No. 1255 of 2008). Seetharamireddy and his wife filed a.S.Nos. 89 of 2002 and 145 of 2002, in the Court of Senior Civil Judge, Proddatur, for recovery of Rs.2,57,500/- and Rs.1,71,867/-, respectively. It was pleaded that the appellant borrowed a sum of RS.1,50,000/-, from Seetharamireddy, on 14-06-1999, and executed a promissory note for repayment thereof. In the other suit, the plea was that the appellant borrowed Rs. 1,00,000/-, from Lakshmi Devi, on 27-09-1999, and executed a promissory note. 3. The appellant filed separate written statements. He stated that he never had the necessity to borrow the amount from the respondents and that bearing grudge for not supporting the candidature of Seetharamireddy, as Vice-Chairman of Proddatur Municipality, promissory notes were fabricated and the suits were filed. The trial Court framed necessary issues, in two suits, and recorded evidence separately. O.S.No. 145 of 2002, filed by Lakshmi Devi, was decreed, on 29-12-2005, and O.S. No. 89 of 2002, filed by Seetharamireddy, was decreed, on 07-08-2006. A.S.Nos. 4 and 62 of 2006, filed against the said decrees in the Court of II Additional District Judge, Kadapa at Proddatur, were dismissed, through separate judgments, on 28-08-2008. Hence, these two Second Appeals. 4. Sri M.N. Narasimha Reddy, learned counsel for the appellant, submits that the trial Court committed a patent irregularity in recasting the issues at the stage of arguments, substantially changing the complexion of the suit. He contends that there existed a clear discrepancy in the evidence of the witnesses and the same was not taken into account, either by the trial Court, or, by the lower appellate Court. It is also his case that, neither the respondents have the capacity to lend amount to the appellant, nor the latter had any necessity to borrow the amount from them. It is also his case that, neither the respondents have the capacity to lend amount to the appellant, nor the latter had any necessity to borrow the amount from them. He further submits that the Courts below have brushed aside various attended circumstances by drawing inferences and that the decrees, passed against the appellant, cannot be sustained either on facts, or in law. 5. Sri Laxmi Reddy Byreddy, learned counsel for the respondents, on the other hand, submits that both the Courts below have recorded concurrent findings of fact and that no substantial question of law arises for consideration in these two Second Appeals. He submits that the promissory notes, which constitute the basis for the suits, were proved by adducing the oral evidence of the scribe and the witnesses, and that the appellant did not do anything to rebut that evidence. 6. The suits filed by the respondents were for recovery of the amount mentioned therein. The appellant flatly denied the execution of promissory notes or receipt of amounts from the respondents. It is also pleaded that the promissory' notes were brought into existence, on account of political differences. In O.S.No. 89 of 2002, two issues were framed, viz., "(a) whether the suit promissory note debt is true, valid and binding on the defendants? And (b) Whether the suit promissory note is materially altered?" 7. In the other suit, being O.S.No. 145 of 2002, the tenor of the issues was different. They read as under: "(a) Whether the suit pronote is rank forgery with the assistance of scribe and attestors as pleaded in the written statement by the defendants is true and binding on the defendant? (b) Whether plaintiff entitled decree sought for?" 8. When the parties are almost common, subject matter is similar and suits are pending ir1 the same Court, they ought to have been clubbed together. For one reason or the other, they were dealt with separately The Respondents adduced the oral evidence of P.Ws. 1 to 3 separately in both the suits and filed respective promissory notes. The appellant alone deposed as D.W.1, in both the suits. At a later stage, the trial Court recasted the issues framed in O.S.No. 145 of 2002, which are as under: (a) "Whether the plaintiff is entitled to recover suit amount basing composition on pronote dated 27-09-1999 from the defendant? (b) To what relief?' 9. The appellant alone deposed as D.W.1, in both the suits. At a later stage, the trial Court recasted the issues framed in O.S.No. 145 of 2002, which are as under: (a) "Whether the plaintiff is entitled to recover suit amount basing composition on pronote dated 27-09-1999 from the defendant? (b) To what relief?' 9. The suit were decreed and the appeals filed against them were also dismissed. 10. Normally, this court would not interfere with the concurrent findings of fact, particularly in suits of this nature, unless a substantial question of law arises for consideration. 11. In the case on hand, a question of law of considerable importance arises, namely, whether it is competent for a trial Court to alter the scope and ambit of issues framed in a suit, at the stage of hearing, without giving opportunity to the concerned parties to put forward their views. 12. There exists a definite purpose underlying framing of issues. It is the specific duty of the Court to frame issues, taking into account pleadings of the parties and in particular admissions and denials that emanate out of them. An issue framed in a suit would not only pinpoint the controversy between the parties, but also would indicate as to the party on whom the burden to prove a particular fact rests. In certain cases, the issue would reflect the extent to which the Court had accepted the version of one of the parties. 13. In the present case itself, it is evident that when it framed the first issue in O.S. No. 145 of 2002, the trial Court treated the allegation as to forgery, that too, with the assistance of the scribe and attestors of the promissory note, as a matter of controversy. With this, the contours of burden of proof also get demarcated. 14. It is, no doubt, true that Rule 5 of Order 14 C.P.C. empowers a Court to amend and recast the issues, at any stage of the suit. However, it does not mean that the issues can be changed at the whims of the Court, without any reference to the submissions made by the parties, or the progress that has taken place in the suit, thus far. However, it does not mean that the issues can be changed at the whims of the Court, without any reference to the submissions made by the parties, or the progress that has taken place in the suit, thus far. If the issues are changed at the stage of hearing, virtually entire purport of the evidence that has been recorded by the Court, with reference to the unamended issues, would either become redundant, or will loose significance. 15. The first issue framed in O.S.No. 145 of 2002 was altered, as indicated in the preceding paragraphs. In a way, the amended issue proceeded on the assumption that no serious dispute existed, as to the execution of the promissory note, or the allegation as to the forgery. The complexion of the suit has undergone a substantial change, on recasting of issues. 16. There is another important aspect, which the Courts below did not notice, viz., the discrepancy between the evidence of P.Ws. 2 and 3, pointed out by the appellant. While one witness said that the printed promissory note and stamps were ready with the plaintiff, the other witness said that they were purchased from a shop, and thereafter, the blanks were filed. The proximity of relation between the parties appears to have weighed with the Courts in overlooking the evidence of third parties. This Court is of the view that the matter needs to be dealt with by the trial Court, afresh, if necessary, by giving opportunity to the parties to lead evidence, including the opportunity to file an application under Section 45 of the Indian Evidence Act. 17. The Second Appeals are accordingly allowed and the judgments and decrees passed by the Courts below are set aside. The suits are remanded to the trial Court, for fresh consideration and disposal. There shall be no order as to costs.