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Karnataka High Court · body

2012 DIGILAW 181 (KAR)

H. G. Venkateshmurthy v. Ravanna

2012-03-01

H.G.RAMESH

body2012
Judgment : 1. This second appeal is by the plaintiff challenging the judgment and decree passed by the Principal District Judge, Hassan in R.A.No.65/2007. 2. Appellant-Plaintiff filed a suit for recovery of money based on the pronote executed by the respondent-defendant as per Ex.P1. The matter was contested denying the execution of pronote. Ultimately, the trial Court on comparing the signature on the written statement and also other documents, has formed an opinion that the document at Ex.P1 has not been executed by the defendant and accordingly, has dismissed the suit, as against which in the appeal filed before the Principal District Judge, Hassan in R.A.No.65/2007, an application has been filed by the plaintiff seeking for opinion of the expert on the admitted documents at Exs.D1 and D2 produced by the defendant himself with that of the disputed signature on Ex.P1. However the learned District Judge has dismissed the appeal while confirming the order of the trial Court. Hence, this appeal. 3. Heard. 4. According to the learned Counsel for the appellant, the plaintiff sought to refer Exs.D1 and D2, the admitted signature of the defendant, with that of the disputed signature on Ex.P1, instead, the lower appellate Court has referred the signature on the written statement with that of Ex.P1 without considering the request of the appellant to send the admitted documents at Exs.D1 and D2, which were executed at an undisputed point of time, to compare with Ex.P1. 5. The substantial question of law that arises for consideration in this appeal is: Whether the lower appellate Court is justified in dismissing the appeal of the plaintiff without considering the Court Commissioner’s report or the application filed by the plaintiff seeking expert opinion’? 6. The Commissioner’s report, which is said to have been secured by the lower appellate Court is with reference to the comparison of the signature of the defendant on the written statement with that of Ex.P1, however, without submitting Exs.D1 and D2 for expert opinion, which were admitted by the defendant and were executed at an undisputed point of time. 7. The lower appellate Court has formed an opinion that the plaintiff has acted as a moneylender without license. 7. The lower appellate Court has formed an opinion that the plaintiff has acted as a moneylender without license. So far as the nature of transaction is concerned, whether the money has been lent by the plaintiff as a moneylender or only as a mater of necessity the amount has been lent at the request of the defendants are aspects which need to be dealt later. But the lower appellate Court has ignored the application filed by the plaintiff as per Section 45 of the Evidence Act to ascertain whether there was a transaction between the plaintiff and the defendant or not, which is a primary question to be decided and thereafter, whether the amount was lent in the usual course out of friendship or as a necessity or as a moneylender, is a secondary aspect, which could have been dealt by the lower appellate Court at an appropriate stage. Instead, the lower appellate Court is shown to be over anxious to dismiss the appeal without looking into the nature of the documents and the contention taken by the plaintiff. 8. In the circumstances, appeal is allowed and the impugned order is set aside. Matter is referred back to the lower appellate Court for disposal in accordance with law, after securing the opinion of the expert, as per the application filed by the appellant, within six months. Office to send back the records. No costs.