Karnataka High Court
Suresh K M vs K V Krishna Murthy on 24 November, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A. NO.1619 OF 2022 (MON)
BETWEEN:
SRI. SURESH K M
S/O K. MUNIKRISHNAPPA
AGED ABOUT 47 YEARS
R/AT SOPPINA BEEDI
NANDI ROAD, 5TH DIVISION
20TH WARD, CHIKKABALLAPURA-562 101
...APPELLANT
(BY SRI.LOURDU MARIYAPPA A, ADVOCATE)
AND:
K V KRISHANA MURTHY
D/O K.KRISHNAREDDY
AGED ABOUT 29 YEARS
R/AT KANAJENAHALLI VILLAGE
KASABA HOBLI,
CHIKKABALLAPURA-562 101
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 08.08.2022 PASSED IN
RA.NO.143/2019 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY
COURT, CHIKKABALLAPURA. PARTLY ALLOWING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED 15.10.2019
2
PASSED IN O.S.NO.10/2016 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPURA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.11.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful
defendant who has questioned the concurrent judgments
rendered by the Courts below in decreeing the suit of the
plaintiff for a sum of Rs.6,40,000/- with 9% interest per
annum. These concurrent judgments are challenged by the
unsuccessful defendant.
2. For the sake of brevity, the parties are referred to
as per their rank before the trial Court.
3. The plaintiff has instituted a suit in O.S.No.10/2016
seeking recovery of sum of Rs.6,40,000/-. The plaintiff
alleged that defendant approached the plaintiff and requested
the plaintiff for hand loan of Rs.5,00,000/- for family and legal
necessity. The plaintiff claimed that he has paid a sum of
Rs.5,00,000/- to the defendant on 10.08.2014 and defendant
has executed demand promissory note and consideration
receipt in favour of the plaintiff on 10.08.2014 and has agreed
to repay the amount. The present suit is filed alleging that
inspite of repeated demand, the defendant has failed to repay
the amount. It is also alleged that plaintiff has issued a notice
on 24.11.2015 calling upon the defendant to repay the
amount and hence, the present suit by the plaintiff.
4. On receipt of summons, the defendant tendered
appearance, filed written statement and stoutly denied the
entire averments made in the plaint. The defendant has
denied the execution of promissory note and consideration
receipt. The defendant specifically pleaded that his signature
found on the alleged demand promissory note and
consideration receipt are forged and are not that of defendant.
5. The plaintiff to substantiate his claim examined
himself as PW.1 and examined two witnesses as PWs.2 and 3
and produced the promissory note which is marked as Ex.P-1
and consideration receipt is marked as Ex.P-2. The defendant
who has denied the transaction and has set up theory of
concoction has not chosen to lead rebuttal evidence.
6. The trial Court has examined the demand
promissory note which is marked at Ex.P-1 and consideration
receipt vide Ex.P-2. The trial Court has also taken cognizance
of two witnesses examined by the plaintiff. Both the
witnesses to the promissory note and the consideration receipt
have identified the signatures and have specifically deposed
that defendant has availed hand loan and has accordingly
executed promissory note and consideration receipt
acknowledging receipt of Rs.5,00,000/-. The trial Court has
also taken cognizance of the defence set up by the defendant
during trial. During trial, defendant has tried to make out a
case that this promissory note is executed on Sunday. The
trial Court has also taken cognizance of Ex.P-4 which is a reply
issued by the defendant disputing the hand loan. While
examining the recitals in Ex.P-4, trial Court held that Ex.P-4
which is a reply issued by the defendant at the earliest point
of time does not refer to theory of concoction which is set up
in the written statement. The trial Court having taken
cognizance of the promissory note and the consideration
receipt coupled with oral evidence of both witnesses held that
plaintiff has succeeded in substantiating that defendant
borrowed a sum of Rs.5,00,000/- by executing a demand
promissory note dated 10.08.2014 and said transaction is
acknowledged by issuing a consideration receipt which is
marked at Ex.P-2. Taking note of the presumption available
under Section 118 of the Negotiable Instruments Act, trial
Court held that there is a presumption under Negotiable
Instruments Act that consideration is paid for execution of
document and the entire burden is on the defendant to rebut
the presumption that no consideration was paid. The trial
Court referring to the evidence let in by the plaintiff in absence
of serious contest by the defendant, decreed the suit.
7. The defendant feeling aggrieved by the judgment
and decree of the trial Court preferred appeal before the
appellate Court. The defendant for the first time sought leave
of the Court to rely on additional evidence by filing I.A.No.2.
The additional documents were placed for the first time before
the appellate Court to contend that on the date of alleged loan
transaction, defendant was on duty in Railway department and
therefore, defendant made an attempt to demonstrate that
the alleged promissory note and consideration receipt are
concocted and the signatures found on these documents are
not that of defendant. The appellate Court being final fact
finding authority on re-appreciation of entire evidence on
record concurred with the findings recorded by the trial Court
on presumption available pertaining to negotiable instruments.
The appellate Court was also of the view that the promissory
note vide Ex.P-1 coupled with consideration receipt vide
Ex.P-2 and the evidence of both the witnesses who have
supported the plaintiff's case would give rise to presumption
and it is for the defendant to refute the said presumption by
leading rebuttal evidence. On these set of grounds, appellate
Court has concurred and confirmed with the reasons recorded
by the trial Court. Consequently, appeal is dismissed.
8. Learned counsel appearing for the defendant would
vehemently argue and contend that the judgment and decree
rendered by the appellate Court suffers form serious
infirmities. To buttress his arguments, he has placed reliance
on the judgment rendered by the coordinate Bench of this
Court in the case of Sri Prakash vs. Poojya Dr.
Sharanabasasppa Appa1. Referring to the principles laid
down by the coordinate Bench, he would point out that the
appellate Court has not decided on the application filed under
Order 41 Rule 27 and therefore, he would persuade this Court
to remand the matter to the appellate Court to rehear the
matter afresh.
2023 (1) KCCR 470
9. Heard learned counsel appearing for the defendant.
Perused the concurrent findings rendered by the Courts below.
10. The first contention canvassed by the learned
counsel for the defendant that application filed in I.A.No.2 is
not dealt with by the appellate Court cannot be acceded to.
Though in the operative portion, there is no reference to the
application filed in I.A.No.2 seeking production of additional
evidence, but on reading the judgment, it is clearly
forthcoming from para 21 that appellate Court has dealt with
additional evidence. At para 22, reasons are assigned by the
appellate Court that additional evidence cannot be looked into
as the allegations are not supported by pleadings in the
written statement. The defendant's feeble attempt before the
appellate Court that he was on duty on the day this alleged
promissory note was prepared is not indicated in the written
statement and the said aspect is dealt with by the appellate
Court at para 22 of the judgment. At para 23, appellate Court
has further dealt with Exs.P-1 and P-2 and has held that no
specific defence is raised by the defendant while the entire
averments made in the plaint are denied in toto. Therefore,
the contention of learned counsel for the defendant that
application is not dealt with by the appellate Court is
misconceived and cannot be entertained.
11. Be that as it may, the question that needs
consideration at the hands of this Court is, as to whether the
defendant could have maintained the application under Order
41 Rule 27 bearing in mind the fact that defendant has not
chosen to lead any rebuttal evidence before the trial Court.
Strangely, if defendant has not stepped into the witness box
and has not let in any rebuttal evidence, this Court is of the
view that the application for additional evidence placed on
record which is intended to set up a new case, cannot be
looked into. A party can lead additional evidence provided
there is some evidence. It is equally a trite law that test for a
appellate Court to receive additional evidence depends upon
various factors. The question is, whether appellate Court can
render judgment on the materials before it without considering
the additional evidence sought to be adduced. Such a
situation would only occur if the Court determines that there
was an inherent lacuna in the evidence or some other flaw
after reviewing it in its present state. The appellate Court is
also required to examine as to whether additional evidence
has a direct and significant bearing on the central contention
of the suit and whether such additional evidence is required to
be taken on record to do substantial justice.
12. The appellate Court may decline to admit new
evidence at the appellate stage, if defendant intends to set up
a totally new case. The parties cannot be allowed to fill
lacunae at the appellate stage. The additional evidence which
was sought to be produced at the appellate stage was
intended to demonstrate that defendant was not in station on
the day when promissory note vide Ex.P-1 was executed and
consideration receipt vide Ex.P-2 was signed by the defendant.
These relevant pleadings that he was not in station as he was
on duty is not indicated in the written statement. Therefore,
in absence of pleadings in the written statement, any amount
of evidence either before the trial Court or at appellate stage
cannot be entertained.
13. By producing additional evidence, defendant is not
intending to supplement the evidence already on record. In
the present case on hand, there is no evidence let in by the
defendant and therefore, question of considering additional
evidence would not arise. It is equally trite law that appellate
Court's discretion to receive and admit additional evidence is
judicially limited by limitations specified under Order 41 Rule
27. Therefore, this Court is of the view that appellate Court
has exercised discretion judiciously and was justified in
discarding the additional evidence produced by defendant for
the first time before the appellate Court. Both the Courts
have concurrently held that plaintiff has successfully
discharged his initial burden. Both the Courts have
concurrently held that promissory note executed by defendant
which is produced at Ex.P-1 is corroborated by oral evidence
of two witnesses who are examined as PWs.2 and 3.
Therefore, the entire onus would shift on the defendant to lead
rebuttal evidence and prove the contrary. The defendant
admittedly has not mounted the witness box. In absence of
contest, both the Courts were justified in decreeing the suit
filed by the plaintiff. It is in this background, I do not find any
serious infirmities or perversity in the concurrent findings
recorded by both the Courts.
14. No substantial question of law arises for
consideration. The appeal is devoid of merits and accordingly,
stands dismissed.
I.A.No.1/2022 filed for production of additional
documents stands rejected. I.A.No.2/2022 does not survive
for consideration and stands disposed of accordingly.
Sd/-
JUDGE
CA
