Karnataka High Court

Sri H Siddappa vs Sri N G Nagendrappa on 5 January, 2021

Author: E.S.Indiresh

                          1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE E.S.INDIRESH

                  R.S.A. No.143/2014

BETWEEN:

SRI.H.SIDDAPPA,
AGED ABOUT 57 YEARS,
S/O THIMMAPPA,
R/O YARABALLI VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 583 131.
                                         ... APPELLANT

(BY SRI VIJAY KUMAR BHAT A., ADVOCATE)

AND:

SRI.N.G.NAGENDRAPPA,
S/O KOTRAGOWDA,
AGED ABOUT 68 YEARS,
RETIRED PRINCIPAL,
R/O UCHANGIDURGA VILLAGE,
HARAPANAHALLI TALUK - 583 131,
DAVANAGERE DISTRICT.
                                       ... RESPONDENT

(BY SRI J.M.ANIL KUMAR AND
    SRI.Y.S.M.REDDY, ADVOCATES)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 24.09.2013
PASSED IN R.A.NO.232/2009 ON THE FILE OF           I
ADDITIONAL      DISTRICT    AND   SESSIONS    JUDGE,
DAVANAGERE,        DISMISSING   THE    APPEAL   AND
CONFIRMING THE JUDGMENT AND DECREE DATED
30.10.2009 PASSED IN O.S.NO.32/2009 ON THE FILE OF
SENIOR CIVIL JUDGE, HARAPANAHALLI.
                                   2



     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT, DELIVERED THE FOLLOWING:

                             ORDER

This Regular Second Appeal is preferred by the

defendant/appellant challenging the judgment and decree

dated 24.09.2013 passed by the I Additional District and

Sessions Judge, Davanagere, dismissing the appeal in RA

No.232/2009 and confirming the judgment and decree dated

30.10.2009 passed by the Senior civil Judge, Harapanahalli

in OS.No.32/2009.

2. For the sake of convenience, the parties shall be

referred to in terms of their status and ranking before the

trial Court.

3. It is the case of the plaintiff that the plaintiff and

defendant are acquainted with each other and thereby the

defendant had approached the plaintiff for a loan of

Rs.60,000/- on 10.10.2003 for his family necessities. As the

plaintiff had good terms and acquaintance with the

defendant, plaintiff gave a sum of Rs.60,000/- with a

condition to pay interest at the rate of 2% per month.

Accordingly, the defendant has executed a pro-note in favour

of the plaintiff. Thereafter, the plaintiff had requested the

defendant to repay the amount but defendant failed to repay

the said amount in accordance with his promise previously

made as per the terms of pro- note and postponed the

payment on one or the other pretext. However, finally, the

plaintiff has issued legal notice dated 05.09.2006 demanding

repayment of loan amount but defendant has refused to claim

the said notice. Hence, the plaintiff has filed suit in

OS.No.32/2009 for recovery of money.

4. Upon issuance of summons, the defendant

entered his appearance and contested the claim of the

plaintiff by filing his written statement. He specifically denied

the alleged loan transaction and execution of pro-note. He

further contended that said pro-note does not bear his

signature and he is not acquainted with the plaintiff. He

alleged that plaintiff with malafide intention has got created

the pro-note. Accordingly, he sought for dismissal of the suit.

5. On the basis of the aforesaid pleadings, the trial

Court has framed the following issues.

1. Whether the plaintiff proves that defendant on 10.10.2003 availed a loan of Rs.60,000/- to meet out his family necessities and for bricks

business and executed a demand promissory note and further agreed to pay interest at 2% p.m.?

2. Whether the defendant is due in the suit sum?

3. Whether the defendant proves that plaintiff is a stranger to him and the signature on thepro- note is not his signature and further proves that the suit pro-note is created by the plaintiff?

4. What order or decree?

6. To support his case, plaintiff examined himself as

PW1 and one more witness, who is the attestor to the pro-

note as PW2 and relied upon four documents which were

marked as Exs.P1 to P4. On the other hand, the defendant

examined himself as DW1 and three more witnesses as DW2

to DW4 and produced one document which was marked as

Ex.D1.

7. On the basis of the evidence and arguments

advanced by the learned counsel appearing for both the

parties, trial Court answered Issue Nos.1 and 2 in the

affirmative and Issue No.3 in the negative and decreed the

suit, by its judgment dated 30.10.2009 with costs and held

that the plaintiff is entitle to recover a sum of Rs.1,00,000/-

from the defendant along with future interest at the rate of

6% per annum from the date of suit till realization of entire

amount.

8. Being aggrieved by the judgment and decree

passed by the trial Court, defendant has preferred an appeal

before the I Additional and Sessions Judge, Davanagere, in

RA.No.232/2009. After hearing the parties and re-

appreciating the material available on record, the First

Appellate Court dismissed the appeal by confirming the

judgment and decree of the trial Court. Being aggrieved by

the dismissal of R.A.No.232/2009, the defendant has

preferred this second appeal.

9. Heard the learned counsel appearing for both the

parties and perused the material on records.

10. Sri.Vinay Kumar Bhat.A., learned counsel for the

appellant/defendant submits that both the Courts below have

not appreciated Ex.P1-Pro-note properly. Though the

defendant has denied the execution of Ex.P1-pro-note,

however, the Courts below without considering the evidence

of DW2-Scribe and DW3-Prakash who is said to be another

witness to the said Pro-note DW3, has decreed the suit in

favour of plaintiff. The order of the trial Court requires to be

set aside. He further contended that evidence of DW2-Scribe

and DW3-Prakash shows that the alleged pro-note appears to

be executed on 07.08.2006. However, both the Courts below

have manifestly considered the execution of the Ex.P1-pro-

note on 10.10.2003, which requires to be set aside in this

appeal. He further contended that plaintiff was working as

Principal of college during the year 2003 and on 10.10.2003

plaintiff was on duty. Therefore, perusal of Ex.D1- the

attendance registry of College would clearly indicate that the

presence of the plaintiff at the time of execution of pro-note

itself was doubtful at Uchhangidurga Village. The said aspect

of the matter has not been considered by the trial Court at

the time of decreeing the suit and the same was not re-

appreciated properly by the First Appellate Court. Hence,

learned counsel for the appellant/defendant submits that

viewed from any angle, the impugned judgment and decreed

passed by the First Appellate Court is unsustainable in law

and same requires to be set aside.

11. Per contra, Sri.J.M.Anil Kumar, learned counsel

for the respondent/plaintiff justifies the judgment and decree

passed by the Courts below.

12. Having heard the learned counsel for the parties

and on perusal of impugned judgment and decree passed by

the Court below, the factual matrix of the case are that

defendant has executed the pro-note-Ex.P1 in favour of the

plaintiff on 10.10.2003 and borrowed a sum of Rs.60,000/-

with interest at the rate of 2% per month. In this regard, the

plaintiff has produced a copy of the promissory note as

EX.P1. In order to prove the execution of Ex.P1, the plaintiff

has examined PW2- Gouli Nagaraja, S/o. Nanjappa, who is

one of the attesting witness to Ex.P1-Pro-note.

13. It is also forthcoming from the finding recorded

by the trial Court that though the plaintiff has issued legal

notice, calling upon the defendant to repay the loan amount

received by him as per Ex.P1-Pro-note, the defendant has

failed to reply to the same, which amounts to admitting the

execution of Ex.P1-Pro-note.

14. I have carefully examined the finding recorded by

the trial Court at Paragraphs 12 and 18 of its judgment,

wherein trial Court has made an observation that DW2-

M.Shivamurthy is alleged Scribe of Ex.P1-Pro-note and DW.3-

Prakash, the attesting witness to Ex.P1-pro-note, who turned

as witnesses of defendant and have intentionally deposed

evidence against the plaintiff with regard to execution of

Ex.P1.

15. Perusal of finding recorded by the trial Court with

regard to evidence of DW.2 with that of DW.3, who is one of

the attestor to the Ex.P1, would clearly indicate that the

defendant has executed the promissory note on 10.10.2003

as per Ex.P1. In that view of the matter, the trial Court has

properly appreciated the evidence of the parties and has

rightly come to the conclusion that defendant has executed

the Ex.P1-pro note and conjointly, decreed the suit in favour

of the plaintiff which is just and proper.

16. I have also considered the finding recorded by the

First Appellate Court wherein the First Appellate Court has

re-appreciated the entire evidence on record and having

considered the same at pagaraph-16 of its judgment and

decree and rightly come to the conclusion that it is difficult to

believe the evidence of DW.2 and DW.3 with regard to

execution of Pro-note-Ex.P1 as there were discrepancy in the

evidence and accordingly, arrived at a conclusion that trial

Court has properly appreciated the evidence of both the

parties and has dismissed the appeal in RA.No.232/2009.

17. The Hon'ble Supreme Court in the case of

KARNATAKA BOARD OF WAKF v. ANJUMAN-E- ISMAIL

MADRIS-UN-NISWAN while observing that the findings of the

fact could not be interfered with in the second appeal, has

held thus:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally

misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re- place the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

15. And again in, Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC

484), this Court held:

"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors, this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High

Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal.

Adopting any other approach is not permissible. 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 tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in

inadmissible evidence or arrived at without evidence."

27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and

impelling necessity of avoiding prolongation in the life of any lis."

28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

18. This position of law was reiterated by the Hon'ble

Supreme Court in the case of C. DODDANARAYANA REDDY

v. C. JAYARAMA REDDY reported in (2020)4 SCC 659.

19. In that view of the matter, since both the Courts

below have concurred with the finding with regard to

execution of Ex.P1-Pro-note and have properly appreciated

the material on record, I do not find any material irregularity

in the impugned judgment and decree passed by the both the

Courts below. The appeal is dismissed at the stage of

admission itself as the appellant/defendant has not made out

a case to frame the substantial question of law as required

under Section 100 of CPC.