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2025 DIGILAW 587 (AP)

Muli Siva Reddy v. Kambam Venkata Reddy

2025-04-04

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : VENUTHURUMALLI GOPALA KRISHNA RAO, J. 1. This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree dated 04.12.2023 in A.S.No.124 of 2018, on the file of the Judge, Family Court, Kadapa-cum-VI Additional District and Sessions Judge, Kadapa (“First Appellate Court” for short), confirming the Judgment and decree, dated 14.09.2018 in O.S.No.173 of 2015, on the file of the Principal Senior Civil Judge, Kadapa (“Trial Court” for short). 2. The appellant herein is the defendant and the respondent herein is the plaintiff in O.S.No.173 of 2015, on the file of the Principal Senior Civil Judge, Kadapa. 3. The plaintiff initiated action in O.S.No.173 of 2015, on the file of the Principal Senior Civil Judge, Kadapa, with a prayer for recovery of Rs.2,08,089/- being the principal and interest due on promissory notes, dated 03.05.2012 and 12.09.2012 executed by the defendant in favour of plaintiff for Rs.65,000/- and Rs.60,000/- respectively payable with interest at 24% per annum each, for future interest and for costs of the suit. 4. The learned Principal Senior Civil Judge, Kadapa, decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed A.S.No.124 of 2018, on the file of the Judge, Family Court, Kadapa-cum-VI Additional District and Sessions Judge, Kadapa. The First Appellate Court, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.173 of 2015, is as follows: The defendant borrowed an amount of Rs.65,000/- from the plaintiff on 03.05.2012 for his family necessities and had executed suit promissory note in favour of the plaintiff on the same day in the house of the plaintiff. The defendant also agreed to repay the said amount with interest at 24% per annum on demand of the plaintiff or on his order. The defendant also agreed to repay the said amount with interest at 24% per annum on demand of the plaintiff or on his order. Again the defendant borrowed an amount of Rs.60,000/- from the plaintiff on 12.09.2012 for his family necessities and had executed another suit promissory note in favour of the plaintiff on the same day in the house of the plaintiff. The defendant also agreed to repay the said amount with interest at 24% per annum on demand of the plaintiff or on his order. One Chinna Obaiahgari Adi Lakshumma was present and witnessed both the pronote transactions. The plaintiff personally demanded the defendant to pay the amounts due under two promissory notes and in spite of several demands made by the plaintiff, the defendant did not pay the amount and dragging on the matter on some pretext or other. Finally, on 03.02.2015 the plaintiff got issued a legal notice to the defendant demanding to pay the amounts due under two promissory notes and the defendant received the said notice and gave a reply on 10.02.2015 with false allegations. 7. The defendant filed a written statement before the trial Court denying the averments in the plaint. The brief averments in the written statement of defendant are as follows: The plaintiff has been managing joint family affairs. He had not properly partitioned the joint family properties. The father-in-law of the defendant by name Kambam Narayana Reddy, who is one of the brothers of the plaintiff, is a gentle man and having steadiness nature. On several times, the father-in-law of the defendant requested the plaintiff to partition the remaining properties. The defendant requested the plaintiff to partition the remaining properties and cause justice to his father-in-law, but the plaintiff vehemently rejected their request and behaved indecently with the defendant and his wife and in that occasion, there was an altercation between the plaintiff and defendant. The plaintiff also threatened the defendant and his wife with dire consequences. The plaintiff felt insult about the altercation at his house, bore grudge against the defendant and making efforts to wreck vengeance against the defendant. In the course of that, he created suit promissory notes, dated 03.05.2012 and 12.09.2012 by forging signatures of the defendant. The plaintiff also threatened the defendant and his wife with dire consequences. The plaintiff felt insult about the altercation at his house, bore grudge against the defendant and making efforts to wreck vengeance against the defendant. In the course of that, he created suit promissory notes, dated 03.05.2012 and 12.09.2012 by forging signatures of the defendant. The suit promissory notes were created by the plaintiff due to family disputes between the plaintiff and his elder brother, who is father-in-law of the defendant in order to wreck vengeance against the defendant and for unlawful gain. 8. On the basis of above pleadings, the learned Principal Senior Civil Judge, Kadapa, framed the following issues for trial: (1) Whether the suit promissory notes are true, valid and binding on the defendant? (2) Whether the plaintiff is entitled for the relief as prayed for? (3) To what relief? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.4 were marked. On behalf of the defendant, no evidence was adduced and no documents were marked. 10. The learned Principal Senior Civil Judge, Kadapa, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.124 of 2018, on the file of the Judge, Family Court, Kadapa-cum-VI Additional District and Sessions Judge, Kadapa, wherein, the following point came up for consideration: Whether the decree and judgment, dated 14.09.2018 in O.S.No.173 of 2015 passed by the learned Principal Senior Civil Judge, Kadapa, warrant any interference in this appeal? 11. The learned Judge, Family Court, Kadapa-cum-VI Additional District and Sessions Judge, Kadapa i.e., the first appellate Judge, after hearing the arguments, answered the point as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the appeal filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.173 of 2015 filed the present second appeal before this Court. 12. On hearing both sides counsel at the time of admission of the appeal, on 04.09.2024, the following substantial questions of law are framed: (1) When the defendant pleaded that the plaintiff created the suit promissory notes, whether it is the burden of the plaintiff to prove the genuineness of the transaction or not? 12. On hearing both sides counsel at the time of admission of the appeal, on 04.09.2024, the following substantial questions of law are framed: (1) When the defendant pleaded that the plaintiff created the suit promissory notes, whether it is the burden of the plaintiff to prove the genuineness of the transaction or not? (2) Though a promissory note is not a compulsorily attestable document and its execution is denied, whether the plaintiff can prove due execution of the suit promissory notes with the evidence of P.W.2? (3) Whether the trial Court has rightly appreciated the evidence or not? 13. Heard Sri M. Chiranjeevi Babu, learned counsel, representing on behalf of Sri A. Syam Sundar Reddy, learned counsel for the appellant and Sri B. Dharani Kumar, learned counsel for the respondent. 14. Law is well settled that under Section 100 of CPC the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence: In a case of Bhagwan Sharma v. Bani Ghosh , AIR 1993 SC 398 , the Apex Court held as follows: “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.” In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar , AIR 1999 SC 471 , the Apex Court held as follows: “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 15. The suit is based on Ex.A.1 and Ex.A.2 suit promissory notes said to have been executed by the defendant in favour of the plaintiff. The suit is based on Ex.A.1 and Ex.A.2 suit promissory notes said to have been executed by the defendant in favour of the plaintiff. The plaintiff filed original suit promissory notes and got exhibited as Ex.A.1 and Ex.A.2. As seen from Ex.A.1 and Ex.A.2 suit promissory notes, there are no attestors to Ex.A.1 and Ex.A.2. It was contended by the learned counsel for the appellant that P.W.2 is neither attestor nor scribe, therefore, the evidence of P.W.2 cannot be taken into consideration. As seen from Ex.A.1 and Ex.A.2 suit promissory notes, it is clear that there are no attestors to Ex.A.1 and Ex.A.2 and the defendant himself scribed Ex.A.1 and Ex.A.2 suit promissory notes. The law is well settled that the promissory note is not a compulsorily attestable document. To discharge his burden, the plaintiff examined himself as P.W.1 and produced the original suit promissory notes and got exhibited as Ex.A.1 and Ex.A.2. Though P.W.1 was cross examined by the learned counsel for the defendant, in cross examination nothing was elicited from P.W.1 to discredit the testimony of P.W.1. In cross examination, the evidence of P.W.1 is not yet disturbed on the material aspects of the case. 16. The law is well settled that in civil matters the parameters of evaluating the evidence are probability and not beyond reasonable doubt like in a criminal case. The plaintiff discharged his burden by examining himself as P.W.1 and also produced original suit promissory notes said to have been executed by the defendant and exhibited as Ex.A.1 and Ex.A.2, therefore, the burden shifts to the defendant to rebut the evidence of the plaintiff. The defence put forth by the defendant in the written statement is that the plaintiff created the suit promissory notes by forging his signatures. The defendant pleaded that his father-in-law was not given proper share in a partition that was happened with the plaintiff long ago and in that connection the defendant supported his father-in-law and negotiated with the plaintiff about the legitimate share in a partition of the properties and in that occasion, there was an alternation between plaintiff and defendant and that the plaintiff bore grudge against the defendant and created the suit promissory notes. As stated supra, the plaintiff discharged his burden by examining himself as P.W.1 and also produced original suit promissory notes and got exhibited as Ex.A.1 and Ex.A.2. As stated supra, the plaintiff discharged his burden by examining himself as P.W.1 and also produced original suit promissory notes and got exhibited as Ex.A.1 and Ex.A.2. It is also relevant to say that the defendant himself scribed the suit promissory notes and there are no attestors to Ex.A.1 and Ex.A.2. As stated supra, the promissory note is not a compulsorily attestable document, but to disprove the evidence produced by the plaintiff and to discharge his burden, the defendant did not enter into the witness box. The law is well settled by the Hon’ble Apex Court in a case of Vidhyadhar vs. Manikrao and others, AIR 1999 SC 1441 where the Hon’ble Apex Court held that: “Where the party to the suit does not appear into witness box and states his own case on oral and does not offer himself to the cross examination by the other side, a presumption would arose that the case set up by him is not correct.” 17. The learned counsel for the appellant placed a reliance of Prakash Chander Manchanda and another vs. Smt. Janki Manchanda , AIR 1987 SC 42 , wherein the Apex Court held as follows: “It is also clear that O.17 R.3 as it stands was not applicable to the facts of this case as admittedly on the date when the evidence of defendant was closed nobody appeared for the defendant. In this view of the matter it could not be disputed that the Court when proceeded to dispose of the suit on merits had committed an error. Unfortunately even on the review application, the learned trial Court went on in the controversy about O.17, Rr.2 and 3, which existed before the amendment and rejected the review application and on appeal the High Court also unfortunately dismissed the appeal in limine by one word.” The learned counsel for the appellant placed another reliance of Saraswathi & another vs. Thayammai & others , 2011 0 Supreme (Mad) 548 , wherein the High Court of Madras held as follows: “Filing an application under Order 9 Rule 13 CPC is necessary before filing an appeal against an exparte judgment and decree. The court also emphasized that a party who remained ex-parte in the lower court cannot convert the first appellate court into a trial court by seeking permission to file a written statement and documents to participate in the proceedings.” In the case on hand, the plaintiff examined himself as P.W.1 and the plaintiff was also cross examined by the learned counsel for the defendant. The plaintiff also examined his daughter as P.W.2 and P.W.2 was also cross examined by the learned counsel for the defendant and the evidence of the plaintiff was closed and the suit was posted to 29.08.2018 for defence evidence. Though sufficient time has been granted by the learned trial Judge i.e., four opportunities has been given for producing the defendant evidence, the appellant did not avail the same and did not produce any evidence for the reasons best known to him. Though the defendant has taken specific contention in the written statement that his father-in-law was not given proper share in a partition by the plaintiff and in that occasion an altercation was took place in between the plaintiff and defendant, the defendant did not adduce any evidence to prove the said defence put forth by him in the written statement. The decree passed by the learned trial Judge is not an ex-parte decree. A petition under Order 9 Rule 13 of the Code of Civil Procedure is not yet filed by the appellant within a period of limitation or with a petition under Section 5 of the Limitation Act beyond the period of limitation. The material on record reveals that in First Appellate Court the appellant herein filed I.A.No.69 of 2022 under Section 45 of the Indian Evidence Act to send the disputed promissory notes to the handwriting expert along with admitted signatures of the defendant. On hearing both sides, the learned First Appellate Judge dismissed the said application, but, the defendant for the reasons best known to him, did not file any revision petition to challenge the said order passed by the learned First Appellate Judge. Therefore, there are several latches on the part of the appellant in prosecuting the case before the trial Court. 18. Therefore, there are several latches on the part of the appellant in prosecuting the case before the trial Court. 18. As stated supra, the plaintiff discharged his burden by producing two original suit promissory notes and got exhibited as Ex.A.1 and Ex.A.2 and also produced sufficient evidence, but the defendant failed to discharge his burden to rebut the evidence produced by the plaintiff. On re-appreciation of the entire evidence on record, the learned First Appellate Judge rightly dismissed the First Appeal and confirming the decree and judgment passed by the learned trial Judge. Therefore, the findings of the Courts below are held in accordance with law and there are no merits in the present Second Appeal. 19. In the result, the second appeal is dismissed. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.