Telangana High Court
Sri Thumma Sleeva Reddy Alias T. Chalma ... vs Sri Dugginipudi Sudhakar Reddy on 28 January, 2025
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
SECOND APPEAL No.344 of 2024
JUDGMENT:
This Second Appeal is filed challenging the judgment and
decree dated 26.04.2024 passed in A.S.No.26 of 2023 on the file of the
Judge, Family Court-cum-III Additional District and Judge, Nalgonda,
confirming the judgment and decree dated 17.08.2022 passed in
O.S.No.557 of 2015 on the file of the Senior Civil Judge at Nalgonda.
2. For convenience, the parties are referred to as they are arrayed
before the trial Court.
3. Brief facts leading to filing of the present second appeal is that
on 15.06.2015 the defendant borrowed an amount of Rs.13,00,000/-
from the plaintiff/respondent to meet his family necessities and the
defendant executed promissory note in favour of plaintiff agreeing to
repay the borrowed amount with interest @24 % P.A. However,
inspite of several demands the defendant failed to repay the loan
amount with interest, therefore, the plaintiff has filed O.S.No.557 of
2015 before the Senior Civil Judge at Nalgonda, for recovery of
amount of Rs.14,56,000/- with interest basing on promissory note.
LNA, J
4. The defendant has filed the written statement denying the
averments made in the plaint, inter alia, contending that he never
borrowed any amount from the plaintiff and never executed alleged
demand promissory note and that the alleged promissory note is
forged, fabricated, concocted and invented for the purpose of this suit.
It was further contended that plaintiff has been doing money lending
business without any valid license and therefore, the plaintiff is not
entitled to recover the said amount, as such the defendant is not liable
to pay the loan amount. Hence, he prayed to dismiss the suit.
5. Before the trial Court, the plaintiff himself was examined as
PW1 and got marked Ex.A1 and the defendant himself was examined
as D.W.1 and no document was marked on his behalf.
6. The trial Court, after considering the entire material available on
record, on 17.08.2022, decreed the suit with costs, directing the
defendant to pay Rs.14,56,000/- (Rupees Fourteen Lakhs Fifty Six
Thousand Only) to the plaintiff with interest @12% per annum from
the date of the suit till the date of decree and future interest @6% per
annum from the date of decree till the date of realization on adjudged
sum i.e., on Rs.14,56,000/-.
LNA, J
7. Aggrieved by the said judgment and decree dated 17.08.2022,
the plaintiffs filed A.S.No26 of 2023 on the file of the Judge, Family
Court-cum-III Additional District Judge, Nalgonda. The first
appellate Court on re-appreciation of the evidence and the material
available on record, vide judgment and decree dated 26.04.2023
dismissed the appeal confirming the judgment and decree passed by
the trial Court. Hence, the present second appeal, contrary order of 41
Rule 31 of C.P.C.
8. Heard Sri E.Venugopal, learned Senior Counsel representing
Sri N.Mukanda Reddy, learned counsel for the appellant and
Sri E.Sreenivas Rao, learned counsel for the respondent. Perused the
record.
9. The learned counsel for the appellant vehemently argued that
the trial Court decreed the suit without proper appreciation of the
evidence and the first Appellate Court also committed an error in
confirming the judgment and decree passed by the trial Court.
Further, he contended that the first Appellate Court erred in not
framing the issues for consideration while adjudicating the first
appeal.
LNA, J
10. In support of his contention, learned counsel for appellant relied
on the following decisions of the Hon'ble Supreme Court:
i) G.Vasu vs. Syed Yaseen sifuddin Quadri 1; and
ii) Leela Krishnarao Pansare and others vs.
Babasaheb Bhanudas Ithape and othersShasidhar 2.
11. In G.Vasu (supra), the Hon'ble Apex Court held as
under:
"24. ... the defendant shows either by direct
evidence or circumstantial evidence or by use
of other presumptions of law of fact that the
promissory note is not supported by
consideration in the manner stated in the
promissory note or in the manner stated in
the suit notice in the pleading the evidential
burden shifts to the plaintiff..."
12. In Leela Krishnarao Pansare (supra), the Hon'ble Apex
Court held as under:
"6. ... In our opinion, the High Court should have
discussed the evidence in detail, but somehow the
evidence has not been properly discussed or
reappreciated by the High Court while dismissing
the appeal.
(2001) 3 SCC 179
(2015) 11 SCC 269 [2015 (2) ALD 182 (SC]
LNA, J
7. Upon perusal of the impugned judgment
delivered by the High Court, it is clear thet the entire
sale consideration had not been paid but at the same
time it is also an admitted fact that the appellants
did not get the entry with regard to the "Deosthan
Inam" deleted..."
13. On the other hand, the learned counsel for the respondent/
plaintiff vehemently contended that the trial Court, after considering
the oral and documentary evidence, has rightly decreed the suit and
the same was confirmed by the first Appellate Court by giving cogent
reasons. He further contended that except, self serving statement of
D.W.1, no other material is placed to show that Ex.A1 is manipulated
and invented document. He further contended that mere omission to
frame point/points for determination does not vitiate the judgment of
the first appellate Court. However, when it was pointed out that
issue, framed by the First Appellant Court are same that of the trial
Court and that there is no re-appreciation and independent analysis of
evidence and also grounds urged by the appellant were not even
referred by the First Appellant Court, he fairly conceded that matter
can be remanded to the First Appellant Court for fresh adjudication.
LNA, J
Consideration:
14. The principal contention raised by the appellant herein is
that the First Appellate Court did not consider the material
available on record in proper perspective and had not framed
points for determination and further, the grounds raised and
submissions made on behalf of the appellant have not been
referred to in the judgment. The judgments referred to by the
appellant emphasizes the duty cast upon the first Appellate
Court to formulate the points for determination and to
undertake full, fair and independent consideration of evidence
and record reasons for its decision. The first Appellate Court
being final Court on facts, shall undertake independent
analysis of evidence, pleadings and record reasons for its
conclusion.
15. Perusal of the judgment and decree dated 26.04.2024
passed by the first Appellate Court would show that the First
Appellant Court has framed the same issues which were framed
by trial Court and the First Appellate Court did not frame any
new issue/point for consideration while adjudicating the first
appeal. Further, the First Appellate Court did not even refer to
LNA, J
the grounds raised by the appellant in the appeal and record its
findings and further, there is no whisper with regard to the
submissions made on behalf of the appellant.
16. In the present case, the First Appellate Court did not
frame/state points for determination, which is mandatory
under Order XLI Rule 31 of CPC. Further, the first Appellate
Court being the final Court fact finding, did not undertake the
exercise of detailed analysis of the evidence as well as findings
of the trial Court and same is contrary to Order XLI Rule 31 of
CPC.
17. In the light of the law laid down by the Hon'ble Apex
Court, referred to above, in considered opinion of this Court the
first Appellate Court failed to exercise its power under Order XLI
Rule 31 of CPC in proper perspective and had failed to formulate
points for consideration and to undertake full, fair and
independent analysis of evidence. Therefore, the impugned
judgment and decree dated 26.04.2024 passed by the first
Appellate Court is liable to be set aside and accordingly, set
aside.
LNA, J
18. In the result, the Second Appeal is disposed of and the
matter is remanded back to the first Appellate Court for fresh
adjudication with a direction to frame points for consideration,
and pass a reasoned order in accordance with law, by duly
taking into consideration the evidence and material placed on
record. Observations made by this Court are only for the
purpose of disposal of present appeal and the first appellate
Court shall not be influenced by the observations if any, made
by this Court, while adjudicating the appeal. There shall be no
order as to costs.
Pending miscellaneous applications, if any, shall stand
closed.
_________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 28.01.2025
gv
