Telangana High Court

Shaik John Saheb vs G. Kishan Rao, on 16 November, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                 SECOND APPEAL No.112 of 2012

JUDGMENT :

This Second Appeal is arising out of the judgment and decree

dated 30.12.2010 in A.S.No.424 of 2007 on the file of IX Additional

Chief Judge (FTC), City Civil Court, Hyderabad, which is arising out

of the judgment and decree dated 13.06.2007, passed in O.S.No.2260

of 2003 on the file of II Senior Civil Judge, CCC, Hyderabad.

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

arrayed before the trial Court. The appellant is the plaintiff.

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

amount of an Rs.1,90,000/- with future interest @ 36% p.a. against

the defendants. The case of the plaintiff is that he is the owner of the

house bearing No.8-3-225/A/1, situated at Yousufguda check Post

consisting of ground and second floors with several rooms and open

place in the ground floor. The plaintiff is running a primary school

on the ground floor, consisting of 10 rooms with furniture and

necessary facilities in the name and style of "Shantiniketan School".

The defendants approached the plaintiff for taking the school on

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monthly lease and accordingly, the plaintiff accepted the proposal

and leased out the said school in favour of the defendants in August,

1998 for a monthly rent of Rs.5,000/-. Since then, the defendants run

the school till 2000-2001 and the 1st defendant acted as

Correspondent and the 2nd defendant acted as Principal of the said

school. It is the further case of the plaintiff that the defendants have

failed to pay monthly rent and apart from the said dues, the

defendants also borrowed money from the plaintiff as hand loan for

their personal and family necessities but they did not repay the same.

In the presence of elders, though the defendants agreed to pay

Rs.1,90,000/- to the plaintiff towards full and final settlement of the

dues, they did not repay the same. Further, the defendants also

issued two cheques bearing Nos.796855 and 796854 for Rs.90,000/-

and Rs.1,00,000/- on 28.05.2001 and 29.05.2001 respectively drawn

on Andhra Bank, Jubilee Hills Branch, Hyderabad towards the

discharge of outstanding amount. But, when the said cheques were

presented for realization on 28.07.2001, the same were unpaid with

an endorsement 'payment stopped by drawer'. Aggrieved by the

same, the plaintiff filed C.C.No.125 of 2001 on the file of V

Metropolitan Magistrate, Nampally, Hyderabad on 17.09.2001 under

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Section 138 of the Negotiable Instruments Act, against the

defendants and filed the present case for recovery of the amount.

4. A detailed written statement was filed by defendant Nos.1 and

2 denying the averments of the plaint, but admitted the fact that the

plaintiff was running the school in the name and style of

'Shantiniketan School' and that the said school was set out to

defendants in the month of September, 1998. Further, the plaintiff

demanded the defendants to pay Rs.1,00,000/- as deposit and to pay

rent of Rs.5,000/- per month including electricity and water charges

and as a security, the plaintiff has taken two blank cheques from

them. It is the further contention of the defendants that they have

developed the school by recruiting qualified teachers, providing

infrastructure and at that particular point of time, the plaintiff

demanded additional amount of Rs.3,000/- towards electricity

charges and highhandedly occupied three rooms in the same floor

and disconnected the electricity and demanded them to vacate and

handover vacant possession of the property. It is the further

contention in the written statement that the 1st defendant was working

as a School Assistant and was earning about 12,000/- per month and

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the 2nd defendant being the Principal of the school, was earning about

Rs.10,000/- per month. Thus, there is no necessity for them to

borrow any amount from the plaintiff. Further, in order to evict the

defendants from the premises and harass them, the plaintiff has made

false allegations and filed the suit and criminal case. With these

pleadings, the defendants have prayed to dismiss the suit.

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

following issues:-

"1. Whether the plaintiff is entitled for recovery of the suit amount from the defendants?

2. To what relief?"

An additional issue was also framed which reads as under:-

"Whether the suit cheques bearing Nos.796854 dt.29.05.2001 for Rs.1,00,000/- and 796855 dt.28.05.2001 for Rs.90,000/- came into existence in the circumstances pleaded by the defendant in his written statement?"

6. During the course of the trial, on behalf of the plaintiff, P.Ws.1

and 2 were examined and Exs.A-1 to A-7 were marked and on behalf

of the defendants D.Ws.1 and 2 were examined and Exs.B1 to B-3

were marked.

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7. On considering the oral and documentary evidence, the trial

Court has dismissed the suit with a finding that the plaintiff has failed

to establish that the defendants are liable to pay the suit amount.

Further, the trial Court gave liberty to the plaintiff to prosecute the

criminal case filed by him before the V Metropolitan Magistrate,

Nampally for dishonoring of the cheques.

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

Court, the plaintiff has preferred an appeal vide A.S.No.424 of 2007

on the file of IX Additional Chief Judge (FTC), City Civil Court,

Hyderabad.

9. The 1st appellate Court, after hearing the appellant, framed the

following point for consideration:-

"Whether the trial Court committed any irregularity or illegality in dismissing the suit?"

10. Considering the rival contentions of the parties, the 1st

appellate Court has dismissed the appeal confirming the judgment

and decree of the trial court. It is the specific finding of the trial

Court that the plaintiff has failed to prove that the 2nd defendant has

executed Ex.A-7/undertaking, dated 19.06.2001 voluntarily in

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pursuance of the alleged settlement which took place in the month of

January, 2001 and that the defendant No.1 has voluntarily issued

Exs.A-1 and A-2 cheques on 29.05.2001 and 28.05.2001. The 1st

appellate Court has also given finding that with regard to arrears of

rent and alleged hand loan said to have been taken by the defendants

from the plaintiff, there is no reliable evidence on the part of the

plaintiff to prove that the defendants were really in due of any such

amounts to him. Accordingly, the 1st appellate Court has come to a

conclusion that the trial Court has come to a right conclusion on

proper appreciation of evidence available on record and confirmed

the judgment and decree of the trial Court.

11. Being aggrieved by the same, the present Second Appeal is

preferred by the appellant raising the following substantial questions

of law:-

"a. Whether the Appellate Court is erred in dismissing the Appeal filed by the Appellant against the judgment and decree passed by the trial court though the Respondents/Defendants have taken inconsistent pleas in their initial written statement and subsequent amendments to the written statement about issuing the Ex.A-1 and A-2 the suit cheques and the undertaking Ex.A-7 dt.19.6.2001

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issued by the Respondent No.1 and Respondent No.2 respectively in favour of the Appellant at one stage by contending that the said cheques were issued by the Defendant No.1 as surety at the time of taking lease of the School belongs to the Appellant and at another stage in the amendment it has been contended those cheques were obtained by force from them by the Appellant with the help of Police?

b. Whether the lower Appellate Court is erred in dismissing the Appeal and confirming the decree and judgment passed by the trial court, merely disbelieving the oral testimony of P.W.1 and his presence at the time of execution of Ex.A-7 when it

that Exs.A1, A2 and A7 were issued by them towards discharging the dues, who are none other than wife and husband?

c. Whether the lower Appellate Court can dismiss the Appeal by giving the finding that the Appellant/Plaintiff failed to prove that the Respondent/Defendant No.2 has executed Ex.A7 undertaking on 19.06.2001 voluntarily in pursuance of the settlement which took place in January, 2001, Defendant No.1 has voluntarily issued Ex.A.1 and A.2 cheques on 29.05.2001 and 28.05.2009 with regard to arrears of rent and alleged hand loans

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taken by the Defendant from the Plaintiff, while similarly disbelieving the allegations and version of the Respondent/Defendant that the Plaintiff has obtained the same in the presence of Police at the office of Task Force, Begumpet?

d. Whether the Lower Appellate court is erred in dismissing the Appeal having confirming the findings of the trial court with regard to deciding the additional issues in favour of the plaintiff?

e. Whether the Lower Appellate Court is erred in giving specific finding while dismissing the Appeal on the legal question that as per Sec.139 of Negotiable Instrument Act presumption must be drawn in favour the Appellant/Plaintiff when it has been admitted that Ex.A1 and E.A.2 cheques were issues duly affixing the signatures by the 1st defendant and without examining him as one of the witnesses to speak about the manner in which they were obtained from him?

f. Whether the lower Appellate Court has exercised the jurisdiction of facing court of acts and cursory manner in which the Appeal was decided by the Lower Appellate Court would not constitute serious violation of order 41 Rule 31 of CPC and the law laid down by the Supreme Court in 2002 (7) SCC 441?

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g. Whether the trial Court as well as the lower Appellate court after coming to the conclusion that the Respondent/Defendants failed to produce any reliable and cognizable evidence to prove that the Exs,A.1 and A.2 were obtained from the Respondent/Defendant No.1 in the circumstances pleaded in the original written statement as well as in the amendment written statement may be right in dismissing the suit by disbelieving the oral and documentary evidence produced by the Appellant?

h. Whether the lower Appellate Court erroneously held that the trial court has rightly held that if really the alleged settlement took place in January 2001 in the presence of P.W.2 that there was no reason for execution of alleged undertaking as per Ex.A7 on 16.09.2006 on the basis of the alleged statement which took place in January, 2001?

i. Whether the lower appellate court has erroneously dismissed the appeal filed by te Appellant/Plaintiff by holding that the trial court has given the right conclusion on proper appreciation of evidence available on record?"

12. Heard learned counsel for the appellant. Perused the record.

13. Admittedly, the plaintiff relied on the cheques alleged to have

been issued by the defendants for recovery of amount. The case of

the plaintiff is that he has already initiated criminal proceedings

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against the defendants before the V Metropolitan Magistrate,

Nampally for the alleged dishonor of cheques, under Section 138 of

the Negotiable Instruments Act. Therefore, it is for the Criminal

Court to draw presumption under Section 138 of the N.I.Act in

favour of the plaintiff, if the plaintiff establishes that the cheques

issued by the defendants in favour of the plaintiff are with regard to

legally enforceable debt. The present suit was filed by the plaintiff

for recovery of amount. Both the Courts have given concurrent

findings that the plaintiff has failed to establish that the defendants

have failed to pay the amounts due to him.

14. A perusal of the substantial questions of law as raised by the

counsel show that they all relate to findings of fact by the Courts

below but not on law.

15. With regard to the substantial question of law as to whether the

lower Appellate Court has exercised the jurisdiction of facing court

of acts and cursory manner in which the Appeal was decided would

not constitute serious violation of order 41 Rule 31 of CPC and the

law laid down by the Supreme Court in 2002 (7) SCC 441, it is

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relevant to note that the Apex Court in Rattan Dev versus. Pasam

Devi,1, held as follows:

"In our opinion, the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court. While doing so, the First Appellate Court could have taken the factum of the non-examination of the plaintiff also into consideration. The manner in which the appeal has been disposed of by the First Appellate Court cannot be said to be satisfactory. Non- application of mind by the Appellate Court to other material, though available, and consequent failure of the Appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits."

The above said proposition laid down by the Apex Court

squarely applies to the present case.

16. Further, Order 41 Rule 31 reads as follows:-

"Contents, date and signature of judgment:-The judgment of the Appellate Court shall be in writing and shall state:-

       (a)     the points for determination;
       (b)     the decision thereon;
       (c)     the reasons for the decision; and
       (d)     where the decree appealed from is reversed or varied,

the relief to which the appellant is entitled,

(2002) 7 SCC 441

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and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

17. On perusal of the judgment of the 1st appellate Court, it is

evident that it is in writing, contained points for determination, the

decision thereon, the reasons for the decision and also about the

concurrent findings of the trial Court and it is also signed and sealed

by the Judge. Admittedly, the 1st appellate Court has strictly

followed the ingredients under Order 41 Rule 31 of CPC. Therefore,

there is no error or irregularity in the judgment passed by the 1st

appellate Court.

18. The Second Appeal is of the year, 2012 and it underwent

numerous adjournments and is still coming up for admission.

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

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