HC - the Commissioner’s report and plan are useful only for the purpose of noting physical features available at the field and Commissioners report is no substitute for decision of the Court

IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH

AT HYDERABAD

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No.1099 of 2010

DATE: 21.11.2012

Between:

Dantla Pydi Rajamma

                                                                                                …… Appellant

And

Kuddada Sundaramma and 2 others

   ...Respondents

HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU

SECOND APPEAL No.1099 of 2010

JUDGMENT :

        The plaintiff/appellant herein filed the suit in the trial Court for declaration of her ownership to the plaint schedule land of 200 Sq. Yards in S.Nos.60 and 61 of Moolagada village of Pendurthi Mandal, Visakhapatnam District and for vacant possession of the same after evicting the defendants therefrom and removing constructions with Door No.65-3-200 in that land and for permanent injunction.  The plaintiff based her claim on Ex.A-1 assignment order dated 25.06.1979 of Revenue Divisional Officer, Visakhapatnam.  The plaintiff being Ex-serviceman’s widow was given Ex.A-1 assignment order in respect of house site in Plot No.106 in the above S. numbers.  The defendants deny right of the plaintiff for the site in which they have been residing by raising house property therein.  P.W-2 is an Ex-serviceman, P.Ws 3 and 4 are present and former secretaries of Ex-servicemen Association/Society.  All of them speak to the allotment of plot No.136 measuring 200 Sq. yards in the above S.numbers in favour of the plaintiff under Ex.A-1.  Ex.X-1 is copy of the proceedings relating to allotment of plots in that locality.  During pendency of the suit in the trial Court, an Advocate-Commissioner was appointed to localise the plaint schedule land.  The Advocate-Commissioner after making local inspection of the property in the presence of both parties, filed his report along with plan stating that Orange marked portion in the plaint plan is the plaint schedule property.  The Advocate-Commissioner localised the property with the assistance of Mandal Surveyor and the field measurement book and other records.  The trial Court basing on report of the Advocate-Commissioner decreed the suit on the ground that no objections were filed by both the parties to the Commissioner’s report.  In fact, not only the defendants, but also the plaintiff filed objections to the Commissioner’s report and plan.  The lower appellate Court considered both Ex.A-1 and X-1 with reference to report of the advocate-commissioner and came to the conclusion that the plaintiff failed to localise the property in possession of the defendants as the property covered by Ex.A-1 with reference to the Commissioner’s report; and reversed decree of the trial Court.

        2) In this second appeal, it is contended by the appellant’s counsel that when the lower appellate Court found that there was no proper localisation of the plaintiff’s site by the Advocate-Commissioner in the report, the lower appellate Court should have remanded the matter to the trial Court for re-entrustment of the Commissioner’s warrant for correct localising of the plaintiff’s site.

        3) In so far as allotment or assignment of 200 Sq. yards in S.Nos.60 and 61 comprising in Plot No.136 in favour of the plaintiff as widow of Ex-serviceman is concerned, there is no dispute.  The dispute is only localising the site covered by Ex.A-1 and whether the site in possession of the defendant is the same site covered by Ex.A-1 assignment order.  Localisation of site is purely a question of fact.  The lower appellate Court went in detail into description of the site contained in Ex.A-1 and noticed that plot No.136 is bounded on North by vacant site, on East by Plot No.135, on South by Plot No.118 and on West by Plot No.137.  From various allotments of sites contained in Ex.X-1 proceedings of the Revenue Divisional Officer, the lower appellate Court noticed that Eastern plot No.135 was assigned to D.Subba Rao and the Southern plot No.118 was assigned to P.Subbamma.  There were no details as to assignment of plot No.137 to any person, in Ex.X-1.  As per written statement, the first defendant is in occupation of 104 Sq. yards of site with the following boundaries:  East-House of Neelapu Dillirao, South- 30ft. road, West-House of M.Dandasi and North-15 ft. Road.  As per written statement of the 3^rd defendant, she is in possession of 60 Sq. yards of site with a house therein bounded by East-House of the 4^th defendant, West-house of the 1^st defendant, North-30 Ft. road and South-15 Ft. road.  According to the Commissioner’s report, the defendants are in occupation of the schedule property with A.C sheet roofed house with the following boundaries: East-Houses of Chandra Sekhar Reddy and 3^rd defendant, South – Cement road, West –5 Ft. Road and North 12 Ft. road.  As can be seen from Ex.A-1 assignment order, there are no roads abutting Plot No.136 which was assigned to the plaintiff.  It is for the plaintiff to explain boundaries and correlate the present boundaries with the boundaries mentioned in Ex.A-1 assignment order, and also to explain general and physical features like roads on three sides as per the Commissioner’s report.  In the absence of any explanation and correlation, simply the Courts were not expected to go by the Commissioner’s findings.  After all, the Commissioner’s report and plan are useful only for the purpose of noting physical features available at the field and Commissioner’s report is no substitute for decision of the Court.  The lower appellate Court found that the plaintiff has failed to localise her site covered by Ex.A-1 assignment order this Court is of the opinion that this is not a case for remand of the matter to the trial Court for the purpose of re-entrusting the warrant of commission for further localising the plaintiff’s site.  This Court is of the opinion that the plaintiff filed the suit in the trial Court just by picking and choosing the property of the defendants on the assumption that the site is in their occupation is the property covered by Ex.A-1 assignment order, in a speculative manner.  I find no error muchless legal error in the decision arrived at by the lower appellate Court and in dismissing the suit of the plaintiff/appellant.

        4) In the result, the second appeal is dismissed with costs.

_______________________________

SAMUDRALA GOVINDARAJULU, J

November 21, 2012

ksh

HC - at the appeal stage, the application for amendment of the palint cannot be allowed

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

SECOND APPEAL  No. 1035 OF 2010.

DATED 16^TH DECEMBER, 2010.

BETWEEN

Somepalli Kotaiah and anr

                                                        …Appellants

and

 Dama Venkaiah and ors

        ….Respondents.

HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA

SECOND APPEAL No.  1035 OF 2010.

JUDGMENT:

                  The dismissal of the appeal suit in AS.No. 3 of 2007 through judgment and decree dated 25.3.2010 passed by the learned Senior Civil Judge, Addanki, confirming the decree and judgment dated 28.3.2007 passed in O.S.No. 265 of 1995 by the learned Principal Junior Civil Judge, Addanki, led the unsuccessful appellants/plaintiffs to file the present Second Appeal.

          The suit in O.S.No. 265 of 1995 was filed by the appellants/plaintiffs for partition of the plaint schedule property into two equal shares and allot one such share to them. It is the admitted case of both the parties that the fathers of the appellants/plaintiffs and respondents/defendants purchased the suit schedule property jointly under the registered sale deed Ex.A.1 in the year 1981, and that immediate after purchase of the said property, the fathers of both the parties enjoyed the said property and after them, both the parties herein are enjoying the same. When the respondents/defendants caused obstruction in using the passage to have ingress and ingress in their suit land, the appellants/plaintiffs filed the suit for the relief stated supra. During the pendency of the said suit, the elders intervened, and on their advise, both parties entered into agreement Ex.A.2 on 28.11.1996. Even then also, disputes continued between the parties in respect of the usage of passage. It was the specific case of the appellants/plaintiffs that their father and the father of the defendants separated the suit schedule property for the sake of their convenience, but, in fact, there is no partition of the joint suit property by metes and bounds. It was the case of the respondents/defendants that immediately after the purchase of the suit schedule property under Ex.A.1, the fathers of both the parties divided the said property into two plots and therefore, the plaintiffs are not entitled to seek new and second partition. Based on the rival pleadings, the trial Court framed the necessary issues and after full-fledged trial, dismissed the suit.

          Aggrieved by the dismissal of the suit, the appellants/plaintiffs preferred the appeal suit in AS.No. 3 of 2007, which was also ended in dismissal by judgment and decree dated 25.3.2010. Hence this Second Appeal.

          At the time of disposal of the Second Appeal, I considered the substantial questions of law framed in the grounds of  Second Appeal, which read as under:

1.                 Whether the Appellate Court has power to permit the plaintiff/appellant to amend the prayer of the suit? If so, the rejection of the prayer to amend the relief portion by the appellate Court did not amount to non exercise of jurisdiction causing irreparable loss or injustice ?

2.                 Whether by permitting the amendment to the plaint seeking the relief of right of way by way of prescription by amending the plaint at the stage of appeal is barred by limitation especially keeping in view of Order 6 Rule 17 CPC ?

3.                 Whether the  Courts are powerless to order amendment to enforce the agreement Ex.A.2 to avoid the multiplicity of proceedings ?

4.                 Whether the agreement Ex.A.2 is not binding on the parties and can be enforced in law?

          The learned Counsel for the appellants submitted that  inasmuch as the lower appellate Court has not exercised its power vested in it in proper perspective to order for amendment of the plaint of the suit, it amounts to causing of irreparable loss or injustice to the appellants, and that amendment of the plaint at the stage of appeal is not barred by limitation as provided under Order 6 Rule 17 CPC.

          Heard. Perused the record

In the backdrop of these contentions, I shall now proceed to scrutinize the evidence, both oral and documentary, available on record, so as to examine as to whether the lower appellate court has appreciated the evidence in proper perspective or whether any interference is called for by this Court.

Before adverting to the so called substantial questions of law, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow and limited. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, let us examine, whether the substantial questions of law raised need consideration and warrant any interference.

 It appears, during the pendency of the appeal, the appellants/plaintiffs filed an interlocutory application for amendment of the pleadings on the ground that during the pendency of the suit, Ex.A.2 agreement was executed by both the parties in respect of usage of passage for ingress and ingress into the disputed suit schedule land. They contended that inasmuch as there are subsequent charges during the pendency of the suit proceedings, the lower appellate Court ought to have allowed the said interlocutory application for amendment of the plaint.  It is the submission of the learned Counsel for the appellants that the amendment of  plaint is on the foot of the agreement dated 28.11.1996.  Before the lower Appellate Court, the respondents/defendants raised objection that the alleged amendment is barred by limitation and that the same shall not be allowed at this belated stage, otherwise, it would cause prejudice to them. It is further submitted that the plaintiffs have to file a separate suit for implementation of the said agreement.  The lower Court on a consideration of the above contentions, dismissed the said interlocutory application, rightly observing that the amendment which was sought by the plaintiffs is unwarranted and it changes the total nature of the suit and there by it would cause prejudice to the respondents, and, that, therefore, this type of amendment cannot be allowed as against the principles laid down by the authoritative pronouncements of this Court and Apex Court.

Order VI Rule 17 CPC provides that the Court, may, at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and onsuch terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controvery between the parties, provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.  In the present case, both the parties have due diligence about entering into the  agreement Ex.A.2 and though the said document was brought on record at Ex.A.2, however, they have not taken appropriate steps to seek amendment of the plaint on the foot of execution of the said document.

The principle applicable to the amendment of the plaint is well settled. It is also settled law that the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and the Apex Court, provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It is also settled  principle of law that subsequent events to the institution of the suit, so far they are in consonance with the original cause of action, should be permitted to be brought on record by way of amendment.  However, in the present case,  the plaintiffs having due diligence about the entering into the agreement of Ex.A.2 during the pendency of the suit, have not taken appropriate steps to amend the plaint, but, however, at the appeal stage, they have moved the application for amendment of the palint, which, in my considered opinion, cannot be allowed. The amendment of the plaint at the appellate stage for substantiating the allegations of the plaintiffs is totally unwarranted as the same is belated and further that, in case,  it is allowed, the whole suit has to be reopened afresh. In that view of the matter, the lower appellate Court has rightly rejected the application of the appellants for amendment of the plaint. For the foregoing discussion, I do not see any question of law, much less a substantial question of law, that arises for consideration in the second appeal.

The Second appeal is accordingly dismissed. There shall be no order as to costs.

                 -----------------------------------

JUSTICE ASHUTOSH MOHUNTA

Dated 16.12.2010

Msnro

SUBSTANTIAL QUESTION OF LAW BASED ON FACTS

In Vijay Kumar Talwar Vs. Commissioner of Income Tax, Delhi, (2011) 1 SCC 673, it has been held by the Apex Court as under:

“ A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread.”

HC - the plaintiff is not entitled to interest from the date when it was borrowed, but once it is not a loan transaction, he is entitled to interest only from the date of the suit

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

HON’BLE SRI JUSTICE A. GOPAL REDDY

 

SECOND APPEAL No.1130 of 2010

 

Dated: 10-12-2010

 

Between:

 

Vaddi Venkata Purushotama Rao

…Appellant

AND

 

Vaddi Tirumaleshwara Rao

Respondent.

 

 

 

This Court made the following:

HON’BLE SRI JUSTICE A. GOPAL REDDY

 

SECOND APPEAL No.1130 of 2010

 

JUDGMENT:    

This is a defendant’s appeal against the judgment and decree of VIII Additional District & Sessions Judge (Fast Track Court), Vijayawada in allowing A.S.No.279 of 2007, dated 23.7.2010 and decreeing the suit of the plaintiff by setting aside the judgment and decree of IV Additional Junior Civil Judge, Vijayawada dismissing the suit in O.S.No.1926 of 2005, dated 13.3.2007.

For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court.

The plaintiff who is the elder brother of the defendant filed the above suit for recovery of Rs.33,520/- being the principal and interest alleging that the defendant borrowed a sum of Rs.30,000/- on 3.3.2005 by executing a promissory note agreeing to repay the same with interest at 24% per annum.   As the defendant did not pay the said amount in spite of repeated requests, the plaintiff got issued a notice on 10.8.2005.   In spite of the notice as the defendant did not pay the said amount, the present suit is filed.   The defendant contested the suitinter alia contending that the plaintiff materially altered the reverse of the suit promissory note, dated 3.6.2005, that there was no necessity for him to borrow the suit amount from the plaintiff, that he never executed the suit pronote and that the same is not supported by consideration.  It is alleged that the present suit is filed to have wrongful gain and the plaintiff is not entitled for the decree as prayed for. 

Basing on the above pleadings, the trial Court framed necessary issues for trail.  To substantiate the claim, plaintiff himself examined as P.W.1 and the attestor and scribe of suit pronote were examined as P.Ws.2 and 3 and Exs.A.1 to A.4 were marked.  The defendant himself examined as D.W.1 and marked the backside endorsement of Ex.A.1 as Ex.B.1.

The trial Court upon appreciation of entire oral and documentary evidence and after taking into consideration the admission made by the plaintiff as P.W.1 that in Ex.B.1-endorsement there are corrections and that it is not a loan transaction, dismissed the suit.  On appeal being filed by the plaintiff, on re-appreciation of the entire evidence, the lower appellate Court observed that the trial Court has mainly relied on Ex.B.1 endorsement, which is on the back of Ex.A.1 pronote, that this endorsement was written by the defendant himself. That the defendant had written some mistakes and corrected it in third line that he did not owe money.   In the said endorsement, the defendant agreed to pay back Rs.30,000/- after obtaining bank loan without interest.  It was mentioned that for household expenses, the money was given by plaintiff and that it is not a loan and he voluntarily agreed to repay the same, which does not mean that Ex.A.1 pronote was not at all supported by consideration.  In Ex.A.1 it was mentioned that for household expenses, the defendant borrowed money and the same thing was mentioned in Ex.B.1 also after three months of execution of Ex.A.1 and therefore, there is no inconsistency in the matter.   Once the defendant acknowledged the debt due under Ex.A.1 and about plaintiff paying the money to the tune of Rs.30,000/- for household expenses, but not as a loan, the plaintiff, at the most, is entitled to principal money but not interest, and holding so, the lower appellate Court decreed the suit setting aside the judgment and decree of the trial Court.     

Learned counsel for the appellant strenuously contends that the lower appellate Court has not taken into consideration the admission of P.W.1 in the cross-examination, where he admitted that there are corrections in the third line in Ex.B.1 endorsement on the backside of suit pronote-Ex.A.1 and that there is a space in between the two words of the 4^th line of the endorsement and there are over writings and he did not object for writing the said endorsement as it is not a loan and therefore, the suit cannot be decreed.  This court does not find any merit in the contention advanced by the learned counsel for the appellant.   The plaintiff discharged the burden of execution of Ex.A.1-pronote being executed by the defendant.  The execution of Ex.A.1 was denied by the defendant in the written statement, but whereas, the plea taken by him in the argument is that Ex.A.1-pronote was signed by him as a blank pronote and therefore, the same was rightly not accepted by the lower appellate Court.  When Ex.B.1-endorsement itself was marked at the instance of the defendant-appellant, which was admitted by the plaintiff in the evidence about the corrections and the endorsement made by the defendant himself on the back of Ex.A.1, it is not open for the defendant-appellant to contend that Ex.A.1-pronote is signed by him as a blank pronote and in the absence of any such plea taken in the written statement, he cannot be permitted to plead the same.  It is for the defendant-appellant to establish as to how he made such an endorsement under Ex.B.1 on the back of Ex.A.1-pronote.   In the said endorsement, the defendant categorically admitted to pay back Rs.30,000/- by obtaining the bank loan without interest with a further mention that for household expenses, the money was given by the plaintiff and that it is not a loan, which itself shows that the transaction cannot be treated as a loan transaction for payment of the interest.   In view of the said endorsement-Ex.B.1, the defendant is under obligation to pay the said principal amount without any interest.   Therefore, the lower appellate Court rightly held that the plaintiff is not entitled to interest from the date when it was borrowed, but once it is not a loan transaction, he is entitled to interest only from the date of the suit and accordingly decreed the suit.  No question of law much less substantial question of law arises for consideration in this second appeal.       

The second appeal fails and is accordingly dismissed.   No order as to costs.

                                                  

                                                                ________________

            A. GOPAL REDDY, J.

DECEMBER 10, 2010                                                      

Tsr.

HC - the plaintiff is not entitled to interest from the date when it was borrowed, but once it is not a loan transaction, he is entitled to interest only from the date of the suit

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH

AT HYDERABAD

HON’BLE SRI JUSTICE A. GOPAL REDDY

 

SECOND APPEAL No.1130 of 2010

 

Dated: 10-12-2010

 

Between:

 

Vaddi Venkata Purushotama Rao

…Appellant

AND

 

Vaddi Tirumaleshwara Rao

Respondent.

 

 

 

This Court made the following:

HON’BLE SRI JUSTICE A. GOPAL REDDY

 

SECOND APPEAL No.1130 of 2010

 

JUDGMENT:    

This is a defendant’s appeal against the judgment and decree of VIII Additional District & Sessions Judge (Fast Track Court), Vijayawada in allowing A.S.No.279 of 2007, dated 23.7.2010 and decreeing the suit of the plaintiff by setting aside the judgment and decree of IV Additional Junior Civil Judge, Vijayawada dismissing the suit in O.S.No.1926 of 2005, dated 13.3.2007.

For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court.

The plaintiff who is the elder brother of the defendant filed the above suit for recovery of Rs.33,520/- being the principal and interest alleging that the defendant borrowed a sum of Rs.30,000/- on 3.3.2005 by executing a promissory note agreeing to repay the same with interest at 24% per annum.   As the defendant did not pay the said amount in spite of repeated requests, the plaintiff got issued a notice on 10.8.2005.   In spite of the notice as the defendant did not pay the said amount, the present suit is filed.   The defendant contested the suitinter alia contending that the plaintiff materially altered the reverse of the suit promissory note, dated 3.6.2005, that there was no necessity for him to borrow the suit amount from the plaintiff, that he never executed the suit pronote and that the same is not supported by consideration.  It is alleged that the present suit is filed to have wrongful gain and the plaintiff is not entitled for the decree as prayed for. 

Basing on the above pleadings, the trial Court framed necessary issues for trail.  To substantiate the claim, plaintiff himself examined as P.W.1 and the attestor and scribe of suit pronote were examined as P.Ws.2 and 3 and Exs.A.1 to A.4 were marked.  The defendant himself examined as D.W.1 and marked the backside endorsement of Ex.A.1 as Ex.B.1.

The trial Court upon appreciation of entire oral and documentary evidence and after taking into consideration the admission made by the plaintiff as P.W.1 that in Ex.B.1-endorsement there are corrections and that it is not a loan transaction, dismissed the suit.  On appeal being filed by the plaintiff, on re-appreciation of the entire evidence, the lower appellate Court observed that the trial Court has mainly relied on Ex.B.1 endorsement, which is on the back of Ex.A.1 pronote, that this endorsement was written by the defendant himself. That the defendant had written some mistakes and corrected it in third line that he did not owe money.   In the said endorsement, the defendant agreed to pay back Rs.30,000/- after obtaining bank loan without interest.  It was mentioned that for household expenses, the money was given by plaintiff and that it is not a loan and he voluntarily agreed to repay the same, which does not mean that Ex.A.1 pronote was not at all supported by consideration.  In Ex.A.1 it was mentioned that for household expenses, the defendant borrowed money and the same thing was mentioned in Ex.B.1 also after three months of execution of Ex.A.1 and therefore, there is no inconsistency in the matter.   Once the defendant acknowledged the debt due under Ex.A.1 and about plaintiff paying the money to the tune of Rs.30,000/- for household expenses, but not as a loan, the plaintiff, at the most, is entitled to principal money but not interest, and holding so, the lower appellate Court decreed the suit setting aside the judgment and decree of the trial Court.     

Learned counsel for the appellant strenuously contends that the lower appellate Court has not taken into consideration the admission of P.W.1 in the cross-examination, where he admitted that there are corrections in the third line in Ex.B.1 endorsement on the backside of suit pronote-Ex.A.1 and that there is a space in between the two words of the 4^th line of the endorsement and there are over writings and he did not object for writing the said endorsement as it is not a loan and therefore, the suit cannot be decreed.  This court does not find any merit in the contention advanced by the learned counsel for the appellant.   The plaintiff discharged the burden of execution of Ex.A.1-pronote being executed by the defendant.  The execution of Ex.A.1 was denied by the defendant in the written statement, but whereas, the plea taken by him in the argument is that Ex.A.1-pronote was signed by him as a blank pronote and therefore, the same was rightly not accepted by the lower appellate Court.  When Ex.B.1-endorsement itself was marked at the instance of the defendant-appellant, which was admitted by the plaintiff in the evidence about the corrections and the endorsement made by the defendant himself on the back of Ex.A.1, it is not open for the defendant-appellant to contend that Ex.A.1-pronote is signed by him as a blank pronote and in the absence of any such plea taken in the written statement, he cannot be permitted to plead the same.  It is for the defendant-appellant to establish as to how he made such an endorsement under Ex.B.1 on the back of Ex.A.1-pronote.   In the said endorsement, the defendant categorically admitted to pay back Rs.30,000/- by obtaining the bank loan without interest with a further mention that for household expenses, the money was given by the plaintiff and that it is not a loan, which itself shows that the transaction cannot be treated as a loan transaction for payment of the interest.   In view of the said endorsement-Ex.B.1, the defendant is under obligation to pay the said principal amount without any interest.   Therefore, the lower appellate Court rightly held that the plaintiff is not entitled to interest from the date when it was borrowed, but once it is not a loan transaction, he is entitled to interest only from the date of the suit and accordingly decreed the suit.  No question of law much less substantial question of law arises for consideration in this second appeal.       

The second appeal fails and is accordingly dismissed.   No order as to costs.

                                                  

                                                                ________________

            A. GOPAL REDDY, J.

DECEMBER 10, 2010                                                      

Tsr.

HC - Section 73 of the Act empowers a Court to undertake comparison of the disputed writings and signatures, by itself

IN THE HIGH COURT OF JUDICIATURE, ANDHRA PRADESH, AT HYDERABAD

THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY

Second Appeal No.86  of 2010

Dt:23-06-2010

 Between :

Chatakondu Govinda Rajulu                                                                                                                          ..Appellant

And

G. Sudha Madhuri and others

       ..          Respondents

Counsel for the Appellant: Sri K.N. Jwala

Counsel for respondents      : Sri Nagaraju Naguru

JUDGMENT:

The plaintiff in O.S.No.98 of 1999 on the file of the Senior Civil Judge, Kadapa is the appellant.  He filed the suit against the respondents for recovery of a sum of Rs.1,81,810/-, with interest at 18% per annum.  He pleaded that late G. Pratap Reddy, the husband of the 1^st respondent, and father of the respondents 2 to 4 borrowed a sum of Rs.95,000/- on 31-08-1994,  and executed a promissory note.  It was pleaded that he made a part payment of Rs.500/- on 21-08-1997, and did not pay the balance, by the time he died.  The appellant got issued a notice on 18-08-1999 to the respondents, demanding payment.  Alleging that the respondents did not pay the amount, he filed the suit.

The respondents filed a written statement, denying the very execution of the promissory note, by Pratap Reddy.  They have also pleaded that the appellant was himself a tenant in a large commercial complex, owned by their family, and that there was no necessity for the deceased to borrow any amount from the appellant. Reference was made to a decree passed in a suit filed against the appellant by the father of Pratap Reddy, and an eviction case filed by them against the appellant.

Through its judgment dated 13-10-2004, the trial Court decreed the suit.  Aggrieved thereby, the respondents filed A.S.No.6 of 2006 in the Court of Family Judge-cum-Additional District Judge, Kadapa.  The lower Appellate Court allowed the appeal through judgment dated 31-08-2009 and reversed the decree passed by the trial Court. Hence, this second appeal.

Sri K.N. Jwala, learned Senior Counsel for the appellant, submits that the trial Court recorded a clear finding to the effect that the signature on the promissory note, Ex.A-1, dated 31-08-1994, was proved through cogent evidence, and there was absolutely no basis for the lower Appellate Court, in reversing that finding.  He contends that PW-2, who is acquainted with the signatures of the deceased, Pratap Reddy, has not only produced the records containing the signatures of Pratap Reddy, being Exs.A-6 to A-11, but also deposed about the same.  Learned counsel submits that Ex.A-1 answers the description of a negotiable instrument, and it has been proved to the satisfaction of the Court.  He also submits that an inference deserves to be drawn, as provided for under Section 114 of the Indian Evidence Act, 1872 (for short ‘Act’), and that the view taken by the lower Appellate Court cannot be sustained in law.

Sri Nagaraju Naguru, learned counsel for the respondents, 
on the other hand, submits that, not a single witness has signed upon the promissory note, and even assuming that it is not required to be witnessed by any one, the appellant was under obligation to examine any third party, to prove the execution thereof.  He contends that though PW-2 stated that he is acquainted with the signatures of late Pratap Reddy, it was not even suggested to him that Ex.A-1 contains the signature of Pratap Reddy, nor there was any occasion to compare the signatures on various aspects.  Learned counsel submits that the comparison undertaken by the trial Court in exercise of power under Section 73 of the Act was totally untenable, since no independent witness said that, signature on Ex.A-1 is that of Pratap Reddy.

The suit is for recovery of a sum of Rs.1,81,810/-, on the strength of a promissory note said to have been executed by late Pratap Reddy.  The respondents flatly denied the execution of the promissory note by the deceased.  They have also pleaded that the promissory note is not supported by consideration.  The trial Court framed two issues for its consideration, viz.,

1) Whether the suit promissory note was executed by Pratap                  Reddy, and whether it was supported by consideration ?                  and

2) Whether the plaintiff is entitled for the decree, as prayed                 for ?”

The appellant deposed as PW-1 and one Mr.Yella Reddy was examined as PW-2.  On his behalf, Exs.A-1 to A-11 were marked.  The 1^st respondent deposed as DW-1. She filed 
Exs.B-1 to B-5.  The trial Court decreed the suit, and in the appeal preferred by the respondents, the lower Appellate Court framed only one point for its consideration, viz., whether the decree and judgment of the trial Court deserves to be set aside.  It has allowed the appeal.

There is no denial of the fact that a promissory note is a negotiable instrument, as defined under Section 4 of the Negotiable Instruments Act.  The Act does not require that the execution of negotiable instrument must be witnessed by a third party, much less attested.  However, the appellant is under obligation to prove the execution of Ex.A-1.  This has become necessary on account of the flat denial of the plaint averments by the respondents.

Howsoever consistent and cogent the evidence of plaintiff, as a witness in a suit may be, it does not gain trustworthiness, unless it is corroborated by independent witnesses.  The appellant filed affidavit, in lieu of his chief-examination.   He did not mention that any third party was present, when the promissory note was alleged to have been executed by, or the amount is said to have been paid to Pratap Reddy.  He got issued notices to the respondents, after the death of Pratap Reddy.  Those notices were marked as Exs.A-3 to A-5.  In the cross-examination, it was elicited from the appellant, that he is a tenant in the premises owned by the father of Pratap Reddy, for the past 30 years.  He has also admitted that Pratap Reddy became the exclusive owner of the premises, which included the portion leased to him.  The rent is said to have been Rs.50/- per month, at the commencement, and was enhanced to Rs.1,250/- per month, by the time Pratap Reddy died.  He filed two receipts of rent, issued by Pratap Reddy, on 04-04-1988 and 
05-09-1988.  He stated that he does not have any other receipts.  He admitted that he is not paying the rent for the premises from September, 1998 onwards.  The appellant stated that the premises were purchased by one Mr.Narsimha Reddy, and on an oral demand made, the rent is being paid to the said Narsimha Reddy.  He admitted that he did not issue any notice to Pratap Reddy for repayment of the amount, covered by Ex.B-1.  The appellant also stated that he is not an income tax assessee earlier to 2002, and there is nothing on record to show that he has received a sum of Rs.500/- on 21-08-1997 from Pratap Reddy.  He admitted that he suffered a decree in the hands of Ranga Reddy, father of Pratap Reddy, in O.S.No.319 of 1997, but feigned ignorance as to whether the 1^st respondent came on record as LR 
in that suit.  It was suggested to him that he has bore grudge against respondents 1 to 4, ever since they came on record in the suit, and that no amount was borrowed by Pratap Reddy.

PW-2 was examined by the appellant.  This witness is said to have worked in the Kadapa Co-operative House Building Society Ltd., as Clerk-cum-Manager (as a peculiar phenomenon).  He stated that he is acquainted with the signatures of Pratap Reddy.  
It was not even stated in the affidavit filed in lieu of chief-examination, that Pratap Reddy was a member of that society, or that he has borrowed any amount from them.  
To be precise, the statement made in the affidavit reads as under:

“I am working as clerk-cum-Manager in Cuddapah Cooperative House Building Society Limited, Kadapa for the last 10 years of Cuddaph Cooperative housing Building Society Limited, for the years 1994 to 1995 and he discharged his work as president and he was signing in a Bill C Book, Cash Book relating to Cuddapah Cooperative House Building Society Limited, Kadapa and I know the signature of late G.Pratap Reddy and the signatures with the minutes book and cash book are of late G.Pratap Reddy  I know also the plaintiff for the last 10 years”

Hardly one gains any idea as to the circumstances under which Pratap Reddy said to have any dealing with the society. Assuming that PW-2 worked as Clerk-cum-Manager, he did not state as to the circumstances under which Pratap Reddy signed Exs.A-8 and A-9, when questioned in the cross-examination.

Assuming  that the signatures on Exs.A-8 and A-9 can be said to have been made by Pratap Reddy, it becomes highly doubtful as to whether they can be treated as admitted signatures.  The reason is that the similarity between them, on the one hand, and the signature on Ex.A-1, on the other hand, was not established through process known to law.  The evidence of PW-2 does not take the matter any further to the extent of making the signatures on Exs.A-8 and A-9 undisputed.  The appellant did not elicit a statement, to the effect that PW-2 has seen Ex.A-1 and is of the view that the signature thereon tallies with those, on Exs.A-8 and A-9.  
A statement to that effect would have provided an occasion for the appellant to file an application under Section 45 of the Act, to send Ex.A-1, on the one hand, and Exs.A-8 and A-9, on the other hand, for opinion of the expert.  Since no such effort was made, there did not exist any occasion for him to seek expert’s opinion.

The nature and extent of the proof of a promissory note in a case, where the executant is no more, substantially differs from the one, in which the executant is alive. In the cases of the second category, the trial Court would have an occasion to obtain the signatures or thumb impressions of the executant in the open Court and proceed to compare the same with the disputed one, either by sending the documents to expert’s opinion, under Section 45, or undertake comparison, by itself, under Section 73 of the Act.  Such a facility does not exist in the first category of cases.  There would be serious handicap in identifying the starting point, viz., ascertaining the undisputed signatures.  In such cases, it is only when a clear picture emerges, as to the undisputed nature of a signature of a deceased, executant, that the exercise of comparison can be undertaken.  It is in this context, that the appellant failed to lay proper foundation.

It is necessary to know, as to how the trial Court based its conclusion as to the proof of Ex.A-1.

After the issues are extracted, it summarized the oral and documentary evidence in one paragraph.  It proceeded on the assumption that the signatures of Pratap Reddy were identified by PWs 1 and 2.  The sentence reads,

  

“On behalf of the plaintiff, the plaintiff was examined as P.W.1 and Yella Reddi who identified the signature of late G. Pratapreddi on the promissory note and also the signatures of the said Pratapreddi on minutes book and cash book was examined as P.W.2.”

It may be noted that Ex.A-9 was not shown to PW-1 and Ex.A-1 was not put to PW-2.   It proceeded to observe,

“I am of the clear opinion that the evidence of PWs.1 and 2 is believable one and the evidence of PW.1 clearly goes to show that one 31.08.1994 G.Prathap Reddy executed Ex.A.1 promissory note agreeing to repay the same with interest at 18% per annum and G.Prathap Reddy paid Rs.500/- and made Ex.A.2 endorsement and thereafter Prathap Reddy did not pay any amount except Rs.500/-.  The evidence of PWs.1 and 2 is believable one.  Now G.Prathap Reddy is not alive and the property of G.Prathap Reddy is in the hands of the defendants.  The present suit was filed within three years from 21.08.1997 as per the plaint was presented on 11.10.1999”

He just did not indicate the basis for arriving at this conclusion.

Respondents specifically pleaded that the appellant suffered a decree in the hands of the father of Pratap Reddy, and that the 1^st respondent filed RCC 12 of 1999 for eviction, and that the suit was filed as a counterblast.  None of these issues was referred to.  No one has spoken about the writing on Ex.A-1.  The trial Court assumed to itself, that the writing was also of Pratap Reddy.

Learned Senior Counsel submits that Section 73 of the Act empowers a Court to undertake comparison of the disputed writings and signatures, by itself.  As observed earlier, an exercise of that nature can be undertaken only when the Court has undisputed signatures and writings before it.  Such is not the case here.  
The findings recorded by the trial Court are perverse and not based on any evidence.  The lower Appellate Court has corrected the errors committed by the trial Court.  No question of law arises for consideration in this Second Appeal.

The Second Appeal is dismissed.  There shall be no order as to costs.

________________________

L. NARASIMHA REDDY, J.

Dt.23-06-2010.

Note:

L.R copy to be marked.

(B/O)

KO*