Palliveta Ranjith John vs Jatoth Dande
2022 Latest Caselaw 6599 Tel

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.424 of 2014

JUDGMENT :

This Second Appeal is arising out of the judgment and decree

dated 03.03.2011 in A.S.No.86 of 2009 on the file of VI Additional

District Judge, Warangal at Mahbubabad, which is arising out of the

judgment and decree dated 29.04.2009, passed in O.S.No.254 of

2005, on the file of Principal Junior Civil Judge, Mahbubabad.

2. For the sake of convenience, the parties are referred to as

arrayed before the trial Court. The defendant is the appellant herein.

3. Initially, the suit is filed by the plaintiff for recovery of amount

due under the suit pronote of the defendant. The brief facts of the

plaint are that the defendant borrowed a sum of Rs.25,000/- from the

plaintiff, on 29.11.2002 and executed suit pronote, agreeing to

discharge the debt with interest at 24% per annum. As the defendant

failed to discharge the said debt, inspite of repeated oral demands of

the plaintiff, a legal notice was issued to the defendant. Inspite of

issuing legal notice to the defendant, there was no reply from the

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defendant, therefore, the plaintiff was constrained to file a suit for

recovery of amount.

4. On the other hand, the defendant filed a written statement

denying all the material allegations of the plaintiff. It is the case of

the defendant that he never borrowed any amount from the plaintiff

and did not execute a pronote for Rs.25,000/-. It is further stated in

the written statement that the plaintiff approached him and requested

him to arrange loan, as he was in urgent need of money for

construction of a house, for which the defendant got arranged an

amount of Rs.15,000/- from one Appi Reddy. The plaintiff promised

him that he will repay the said amount within one month, but did not

pay the said amount, for which the defendant went to the plaintiff's

house and asked him to return Rs.25,000/- which was taken from one

Appi Reddy. But the plaintiff bluntly refused to pay the same along

with interest. It is the further case of the defendant that as Appi

Reddy demanded him for repayment of the amount with interest, the

defendant paid the same from his own pocket. But to the surprise of

the defendant, he received a legal notice from the plaintiff on

25.05.2005 with false allegations. After receipt of the said notice,

defendant went to the house of the plaintiff and confronted him about

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the false allegations in legal notice. On that the plaintiff promised

the defendant that he will not file any suit and that no promissory

note was in possession of plaintiff. It is the further contention of the

defendant that the plaintiff bore grudge against him, forged his

signature on the pronote and got filed the suit. Therefore, he prayed

to dismiss the suit, as it is devoid of merits.

5. Basing on the pleadings, the trial Court has framed the

following issues:-

"1. Whether the plaintiff is entitled for the suit claim as prayed for?

2. Whether the suit is barred and created?

3. To what relief?"

6. On behalf of the plaintiff, P.Ws.1 and 2 were examined and

got Exs.A-1 to A-4 marked and on behalf of the defendants, D.W1

was examined and no document was marked.

7. The trial Court after considering the entire oral and

documentary evidence on record, decreed the suit in favour of the

plaintiff with costs to a sum of Rs.40,500/- with subsequent simple

interest at 6% per annum, on the principal amount of Rs.25,000/-

from the date of the suit till the date of realization.

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8. Being aggrieved by the said judgment and decree of the trial

Court in O.S.No.254 of 2005, dated 29.04.2009, the defendant has

preferred an appeal vide A.S.No.86 of 2009 before the VI Additional

District Judge, Warangal at Mahbubabad.

9. On hearing the appellant, the appellate Court framed the

following point for determination:-

"Whether the decree and judgment passed by the trial Court is unsustainable under law and is liable to be set aside?"

10. Considering the grounds, arguments and also the material on

record, the appellate Court dismissed the appeal confirming the

judgment and decree passed by the trial Court in O.S.No.254 of 2005

dated 29.11.2002.

11. Being aggrieved by the judgment and decree of the appellate

Court, the present Second Appeal is filed by the defendant raising the

following substantial questions of law:-

"1. Whether the courts below are correct in entertaining the suit when Section 3 of Limitation Act debars the Courts to entertain the suit filed after limitation?

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2. Whether the courts below erred in giving finding that the appellant has not pleaded with regard to material alterations in spite of the specific plea in the written statement?

3. Whether the courts below are correct in giving a finding that the suit is within the limitation when the suit document clearly establishes that amount was borrowed on 29.01.2002 and not on 29.11.2002?

4. Whether the courts below are correct in rejecting the plea of the appellant with regard to interpolation of suit document without there being any finding U/Sec 73 of the Indian Evidence Act?"

12. The Second Appeal is of the year, 2011 and it underwent

numerous adjournments and is still coming up for admission.

13. Heard the learned counsel for the appellant. Perused the entire

record.

14. It is evident that both the Courts below have given concurrent

findings as to the facts of the case and on perusal of the substantial

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questions of law, it is evident that they are on fact findings but not on

law.

15. It is pertinent to mention that no specific plea was being taken

in the written statement as to the dates of documents such as

"29.01.2002 to 29.11.2002" which are alleged at point No.3 of the

substantial question of law and also about the limitation. It is

relevant to mention that the trial Court has framed an issue as to

whether the suit is barred and created and has given a finding that the

suit was not barred by limitation. Except self testimony of D.W1,

there is no corroborating evidence on record, to prove that the suit

pronote is a forged one and that the defendant did not receive

Rs.25,000/- on 29.11.2002. There is no specific denial or plea as to

the date of the pronote is concerned. It is important to note that the

written statement is the entire denial of the averments of the plaint.

16. As per Section 101 and 103 of the Indian Evidence Act,

whoever ascertains a particular fact, it is for them to prove. In the

present case, the defendant has taken a plea of forgery and it is for

him to prove that the suit pronote was forged. But no efforts were

made by the defendant either to send the pronote to the expert to

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compare the signatures of the defendant with admitted signatures

which are available on the court record or did not make any

application as per Section 73 of Indian Evidence Act, asking the

Court to compare his signature on the pronote with that of admitted

signatures on the vakalath and depositions. In the absence of

pleadings and contentions of the defendant, the trial Court cannot

suo-moto compare the signatures of the defendant, with that of the

documents.

17. P.W-2 who is the one of the attestor to the suit pronote/Ex.A-1.

In his chief affidavit it is stated by him that on 29.11.2002, the

defendant borrowed a sum of Rs.25,000/- from the plaintiff and the

defendant himself has scribed the suit promissory note which

corroborates the evidence of P.W1. Moreover, the wife of the

defendant had also attested suit promissory note as first attestor.

Therefore, this Court do not find any error or irregularity in the

orders passed by the Courts below and there is no substantial

question of law involved in this case.

18. It is pertinent to mention that there is limited scope under

Section 100 of CPC while dealing with the appeals by the High

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Courts. In a Second Appeal, if the High Court is satisfied that the

case involves a substantial question of law, only then, this Court can

interfere with the orders of the Courts below. On perusal of the

entire material on record, this Court is of the considered view that the

orders of the Courts below are not perverse and there is no

misreading of evidence, and therefore in the absence of substantial

question of law, it is not proper to interfere with the concurrent fact

findings of the Courts below. Therefore, the Second Appeal deserves

to be dismissed.

19. In the result, the Second Appeal is dismissed at the stage of

admission confirming the judgment and decree dated 03.03.2011 in

A.S.No.86 of 2009 on the file of VI Additional District Judge,

Warangal at Mahbubabad. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed.

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 08.12.2022 dv