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2014 DIGILAW 4332 (MAD)

K. Prabakaran v. T. Balasubramanian

2014-11-19

P.DEVADASS

body2014
Judgment : In the trial Court, plaintiff won, in the first appellate Court, he lost, thus, now he is before us. 2. Actually, this litigation presents queer facts. 3. The suit was instituted for the recovery of money due on a promissory note (Ex.A.3). The plaint contains usual pleadings which are generally found in a suit instituted based on a promissory note. 4. The defendants/spouses have resisted the suit. Gist of their case is this: The plaintiff is a practicing Advocate. 1st defendant had met with a road accident. He engaged the plaintiff to file a claim petition for him before the Motor Accidents Claims Tribunal. Professional fee at a particular percentage has been fixed. However, as a security for his fee, joint execution of suit promissory note Ex.A.3 was obtained from the defendants. Actually no consideration was passed. The plaintiff used his dominant position as an advocate towards his client and thus the suit is caught by the vice of undue influence and thus, it is unenforceable. 5. The trial Court framed the issues, put the suit, on trial. Plaintiff/Advocate examined himself as P.W.1 and marked Exs.A.1 to A.13, while the defendants, namely Balasubramanian and Dhanalakshmi have examined themselves as D.Ws.1 and 2 and marked Exs.B.1 to B.21. 6. After considering the rival submissions and adverting to the oral and documentary evidence adduced, the trial Court accepted the plaintiff's case of due execution of Ex.A.3 by the defendants and rejected the defendants case of Ex.A.3 having been executed as a security for collection of professional fee and it was obtained exercising under undue influence over the defendants and thus decreed the suit with costs. 7. In the circumstances, the defendants have approached the next appellate Court/Principal Subordinate Judge, Thanjavur by way of A.S.No.59 of 2010. 8. From the record of the case, it is seen that before the first appellate Court, there was redoing threadbare on all aspects by both sides. However, the first appellate Court treaded on a new path. The first appellate Court dealt at length and devoted fully on the aspect of limitation and decided that since the plaintiff had failed to pay the Court fee, even not within the extended time, the suit is barred by time and on that score reversed the entire finding of the trial Court and dismissed the suit itself. 9. The first appellate Court dealt at length and devoted fully on the aspect of limitation and decided that since the plaintiff had failed to pay the Court fee, even not within the extended time, the suit is barred by time and on that score reversed the entire finding of the trial Court and dismissed the suit itself. 9. Under the circumstance, as stated at the outset, now the plaintiff is before us. 10. At the time of admission of the Second Appeal, my then learned Brother has framed the following substantial questions of law: “a) Whether the 1st Appellate Court judgment and decree was sustainable in law since there is no plea raised in appeal regarding the Limitation Act? b) Whether the findings of the Lower Appellate Court over the payment of Courts Fee are not perverse since the same was decided by this Hon'ble Bench in C.R.P.No.1086 of 2009?” 11. It has been contended by the learned counsel for the appellant/plaintiff that the limitation issue has been concluded in favour of the plaintiff in I.A.No.429 of 2008 filed by the defendant under Order 7 Rule 11 C.P.C. Aggrieved by that order, the defendants have took up the issue by way of C.R.P.(MD) No.1086 of 2009 before this Court. This Court upheld the view of the trial Court and recorded a categorical finding that the suit is in time. In the backdrop of the matter, the learned counsel for the appellant would contend that thereafter, that question is over, however, again it was racked up by the first appellate Court and contrary to the findings of the High Court, the first appellate Court recorded a finding, namely, that the suit is not in time. Thus, dismissed the suit. The learned counsel for the appellant added that such a view of the first appellate Court is unsustainable in law. 12. On the other hand, the learned counsel for the respondents would submit that the first appellate Court is right in its view, as well as in its approach, as well as in its recording the finding as against the plaintiff because, the decision rendered in the C.R.P. by the High Court will not prevent the first appellate Court to go into the limitation issue. The learned counsel for the respondents would further submit that such a view has been taken by this Court in the revision filed against the order passed in an interim application. Thus, according to the learned counsel for the respondents still the field is unoccupied and that has been occupied by the first appellate Court. In this connection, the learned counsel for the respondents would also refer to a decision of a Division Bench of this Court rendered in NATARAJAN VS. RAJASEKARAN ( 2003 (2) M.L.J. 305 ). 13. In reply, the learned counsel for the appellant would submit that the defendants did not challenge the finding rendered by this Court in C.R.P. by way of a further action in a manner known to law. It is a closed chapter, it cannot be reopened again. Further, as regards the factual finding rendered by the trial Court, as on today, in this appeal, there is no cross-appeal, there is no cross-objection by the defendants. Thus, there is full stop, not to agitate further as against the factual finding of the trial Court. Thus, the fate of the case of the defendant is sealed, it is over. 14. I have anxiously considered the rival submissions, perused the record of the case, perused the judgments of the Courts below under our scrutiny on the anvil of Section 100 C.P.C. and the decision cited. 15. Let us not detain further recounting the factual matrix which we have already succinctly stated. Straightaway we will come to the crux of the matter, emanating mainly from the judgment of the first appellate Court. 16. In this case, certain aspects cannot be uncontroverted, namely, disposal of I.A.No.429 of 2008 by the trial Court and passing of the order in C.R.P. No.1086 of 2009 by this Court. 17. At the time of filing of the suit, plaintiff presented the plaint with deficit Court fee. Thereafter, he sought for two months time, but one month time was accorded to him under Section 148 C.P.C. Summer Vacation intervened. Court fee was paid but with 20 days delay. Ultimately, the delay was condoned. Plaint was numbered. It has become a suit in O.S.No.67 of 2008. There was hot contest. Defendants let in evidence. At this juncture, they filed I.A.No.429 of 2008 under Order 7 Rule 11 to reject the plaint because the Court fee was not paid even within the extended time. Ultimately, the delay was condoned. Plaint was numbered. It has become a suit in O.S.No.67 of 2008. There was hot contest. Defendants let in evidence. At this juncture, they filed I.A.No.429 of 2008 under Order 7 Rule 11 to reject the plaint because the Court fee was not paid even within the extended time. Virtually, it is a plea of bar of limitation. Now, the legal battle took place on a side track. Heavy arguments were made in the interim application by both. The trial Judge met the challenge. Ultimately, the defendants have lost in their I.A. They challenged the trial Court's order dated 19.06.2009 in revision in this Court in C.R.P.No.1086 of 2009. This Court on 30.09.2009, by a detailed order upheld the order of the trial Court and refused to reject the plaint under Order 7 Rule 11 and the theme of the decision is that the suit cannot be said to be out of time. Admittedly, thereafter no further action in a manner known to law has been undertaken by the defendants as against such a decision of this Court rendered in C.R.P.(MD) No.1086 of 2009 on 30.09.2009. 18. As a blurring edge (I.A.No.429 of 2008) has been so rounded off, the pace of the trial has been speed up in the trial Court. Recording of evidence continued. Full arguments were heard. Judgment was rendered on merits by the trial Court, as already stated, at the outset, plaintiff won, defendants have lost. That is how the defendants have gone to the first appellate Court by way of filing A.S.No.59 of 2010. 19. A perusal of the judgment of the first appellate Court shows that though the Court was addressed on all points including the merit aspect by the defendants/ appellants that was not at all appreciated and it focussed its attention only on the point of limitation and not rendered its findings on the other vital aspects. Thus, as on today, on the factual aspects, there is no finding by the first appellate Court as against the findings of the trial Court on the merit aspect. In such circumstances, the defendants were deprived of having a finding either in their favour or against them. As regards the finding recorded by the trial Court, the only finding rendered by the first appellate Court is on limitation aspect. 20. In such circumstances, the defendants were deprived of having a finding either in their favour or against them. As regards the finding recorded by the trial Court, the only finding rendered by the first appellate Court is on limitation aspect. 20. A perusal of the judgment of the first appellate Court shows that the first appellate Court completely overlooked the decision of this Court rendered in C.R.P.(MD) No.1086 of 2009 on 30.09.2009. 21. How the limitation issue arose, at what stage it was taken up, under what circumstances I.A.No.429 of 2008 was filed, how this matter has reached this Court by way of revision becomes relevant here. The background of filing of I.A.No.429 of 2008 by the defendants is with regard to payment of Court fee by the plaintiff. It was on the anvil of non-payment of the Court fee even within the extended time, rejection of the plaint under Order 7 Rule 11 was sought for and actually plea of limitation has been made in I.A.No.429 of 2009, that was consistently repelled by the trial Court and by this Court in a detailed order, discussing the various aspects of law governing Sections 148, 149 C.P.C. and the decisions on the field and it was recorded that on the averments made in I.A.No.429 of 2008, the suit cannot be said to be out of time and in other words it is not affected by limitation. In the C.R.P, the High Court referred to various decisions including 2003-3-L.W.-803, now, cited before us by the learned counsel for the respondents, the Court referred to some of the judgments of the Hon'ble Apex Court and noted the payment of Court Fee by the plaintiff, hardship pleaded by him for not paying it in time and condoning of it and ultimately dismissed the said C.R.P. of the defendants. Thereafter, such a decision of this Court was not challenged by the defendants further in a manner known to law. In such circumstances, there shall not be opening of the bundoro's box again. It is a closed chapter. It was over once for all. This aspect has been overlooked by the 1st appellate Court. It cannot simply do so. 22. Now, we will revert back to the other aspects of the case. 23. Findings have been rendered by the trial Court also against the defendants. It is a closed chapter. It was over once for all. This aspect has been overlooked by the 1st appellate Court. It cannot simply do so. 22. Now, we will revert back to the other aspects of the case. 23. Findings have been rendered by the trial Court also against the defendants. As against that, a regular first appeal has been filed by the defendants. As on today, there was no finding by the first appellate Court on those aspects. 24. The first appellate Court possess all the powers of a trial Court. The powers of an appellate Court is akin to the powers of a trial Court/original Court. First appellant is also a Court of fact. It can reappraise the evidence. In fact, it is final fact finding Court. Further appeal to this Court is permissible not even on question of law but only on substantial questions of law. Thus, it is incumbent upon the 1st appellate Court to render its finding on all aspects except on limitation which was over already once for all. Therefore, the first appellate Court shall rehear and reconsider the matter on the basis of the evidence on record and renders its findings. 25. (i) In the result, this Second Appeal is allowed. (ii) The judgment and decree of the first appellate Court in A.S.No.59 of 2010 dated 31.01.2011 are set aside. (iii) The entire matter is remanded back to the first appellate Court. (iv) The first appellate Court will hear both sides on the merits aspect of the matter on the available evidence and dispose of the appeal according to law at an earlier date preferably within two months from the date of receipt of a copy of this order. (v) The Court fee paid on the appeal memorandum shall be refunded subject to rules. (vi) Cost throughout will be abide by the result of the judgment of the first appellate Court. (vii) Registry is directed to send the case records to the Principal Subordinate Judge, Thanjavur forthwith along with a copy of this order.