Karnataka High Court
Ishwar Chanabasappa Navalagi vs Shivangouda Kallappa Patil on 10 January, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5334/2013
BETWEEN
SHRI ISHWAR CHANABASAPPA NAVALAGI,
AGE : 42 YEARS,
OCCU: PEON IN KSRTC,
R/O C/O DEPOT MANAGER,
III RD DEPOT, BELGAUM-590001.
... APPELLANT
(BY SRI LAXMAN K.GURAV, ADV.)
AND
SHIVANAGOUDA KALLAPPA PATIL,
AGE : 48 YEARS,
OCC: EX-SERVICEMAN,
ADVOCATE R/O PLOT NO.427,
AUTO NAGAR, BELGAUM-590 001.
... RESPONDENT
(BY SRI SANGRAM S.KULKARNI, ADV.)
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 15.01.2013
PASSED IN R.A.NO.51/2011 ON THE FILE OF II ADDITIONAL
SENIOR CIVIL JUDGE, BELAGAVI AND JUDGMENT AND DECREE
DATED 15.02.2011 PASSED IN O.S.NO.892/2008 ON THE FILE
OF II ADDITIONAL CIVIL JUDGE AND JMFC, COURT, BELAGAVI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
2
: JUDGMENT :
The captioned second appeal is filed by the
defendant, being aggrieved by the judgments and
decrees of the Courts below.
2. Facts leading to the above said case are as
Follows.
The respondent/plaintiff filed a suit for recovery
of sum of Rs.3,12,250/-. The present appellant
contested the proceedings and filed written statement.
At paragraph Nos.8, the present appellant admitted in
unequivocal terms that he was liable to pay a sum of
Rs.2,62,000/- as on 30.10.2005. In view of the
admission made by appellant/defendant at paragraph
No.8 of his written statement, the respondent/plaintiff
filed an application under Order XII Rule 6 of the Code
of Civil Procedure to pass a partial decree in view of
the contentions averred in the written statement. The
defence set up by appellant/defendant that he has
already paid a sum of Rs.2,35,500/-. In view of the
said defence the Court passed a partial decree
directing the appellant/defendant to pay sum of
Rs.26,500/- with interest at the rate of 18% per
annum.
3. However, the parties were relegated to a
full-fledged Trial in respect of remaining disputed
amount. The respondent/plaintiff to substantiate his
claim let in ocular evidence by examining himself as
PW.1 and produced documentary evidence vide
Exs.P.1 to 10. The appellant/defendant has led in
ocular evidence by examining himself as DW.1 and
examined two independent witnesses and relied on
documentary evidence vide Exs.D.1 to D.13.
4. The Trial Court having assessed the oral
and documentary evidence on record, decreed the suit
in part by directing the present appellant/defendant to
pay sum of Rs.1,30,700/- with interest at the rate of
3%. The Trial Court was of the view that plaintiff has
failed to prove the documents vide Exs.P.1 and P.5.
5. The appellant/defendant preferred an
appeal questioning the judgment and decree passed
by the Trial Court in R.A.No.51/2011 before the II
Additional Senior Civil Judge, Belagavi. The
respondent/plaintiff filed a cross-appeal feeling
aggrieved by partial dismissal, since the entire claim
of the respondent/plaintiff was not allowed by the Trial
Court.
6. The First Appellate Court on re-appreciation
of oral and documentary evidence, was of the view
that respondent/plaintiff has proved due execution of
Ex.P.2 and if the recitals in Ex.P.2 coupled with
categorical admissions made by the
appellant/defendant at paragraph No.8 of the written
statement are taken into consideration, the First
Appellate Court was of the view that the
respondent/plaintiff was established that he is entitled
for claim of Rs.2,62,000/- as per Ex.P.2. The First
Appellate Court was also of the view that, though the
appellant/defendant has taken a contention that he
has paid Rs.2,35,500/-, however, the Appellate Court
was of the view that, to substantiate the said claim
there is absolutely no rebuttal evidence and the said
fact is not proved by the appellant/defendant. In
absence of rebuttal evidence, by placing reliance on
Ex.P.2, the Appellate Court held that the defendant
has not made any payment to the plaintiff, after the
admitted claim of Rs.2,62,000/- vide Ex.P.2. The First
Appellate Court also found that the
appellant/defendant has made a payment of
Rs.50,000/- on 22.08.2007.
7. Having appreciated the oral and
documentary evidence, the Appellate Court dismissed
the appeal filed by appellant/defendant and allowed
the cross appeal thereby decreeing the suit of
respondent/plaintiff holding defendant liable to pay
sum of Rs.2,12,000/- with interest at the rate of 9%
per annum after deducting admitted payment made
by appellant/defendant to the tune of Rs.50,000/-.
8. This Court would find that though the First
Appellate Court has dismissed the appeal filed by the
appellant/defendant and has allowed the cross-appeal.
However, the present appeal is filed only questioning
the judgment and decree passed in R.A.No.51/2011.
The decree passed by the Appellate Court on cross-
appeal allowing the claim of respondent/plaintiff
thereby directing the appellant/defendant to pay a
sum of Rs.2,12,000/- with interest at the rate of 9% is
not questioned and the same has attained finality.
9. Heard learned counsel for the appellant/
defendant and learned counsel for the respondent/
plaintiff. Perused materials on record.
10. The First Appellate Court on re-appreciation
of oral and documentary evidence, has rightly come to
the conclusion that the appellant/defendant is bound
to pay the admitted claim of Rs.2,62,000/- as per
Ex.P.2. On perusal of the judgment and decree passed
by the First Appellate Court, this Court would find that
the respondent/plaintiff has established due execution
of Ex.P.2. Even if Exs.P.1 and 5 are discarded, this
Court would find that appellant has admitted in
unequivocal terms at paragraph 8 of written
statement that he was liable to pay a sum of
Rs.2,60,000/- as on 30.10.2005.
11. This admission in para 8 of written
statement is conclusive and goes to the root of the
case. Therefore nothing remained for respondent/
herein to lead further evidence. However, to
corroborate the averments made in para 8,
respondent/plaintiff has placed on record Ex.P.2,
which is a receipt written by the appellant/defendant
in his own handwriting. This document is not under
dispute.
12. Having perused Ex.P.2, the First Appellate
Court has rightly allowed the cross-appeal and
directed the appellant/defendant to pay the balance of
Rs.2,12,000/- with interest at the rate of 9% per
annum. Since there is no challenge the judgment and
decree passed in cross-appeal, the present second
appeal questioning the judgment and decree passed in
R.A.No.51/2011 is of no consequence. Accordingly, no
substantial question of law arises for consideration.
Hence, the appeal stands dismissed.
Sd/-
JUDGE
EM
