M. BASAVARAJAPPA Vs. H.B. KURUVATTEPPA

JUDGEMENT

(1.) THE appellant/plaintiff filed O.S. No. 157/2004 on the file of the learned Civil Judge (Sr. Dn.), Harihar, against the respondent/defendant on 26.11.2004, to pass a decree for recovery of a sum of Rs. 97,525/ - with interest and costs. It was stated that the defendant borrowed Rs. 83,000/ - for agricultural purposes as well as for his hospital expenses and agreed to repay the same with interest at the rate of 2% p.m., and executed a promissory note and in spite of repeated requests and demands, the defendant did not repay the loan amount. In response to the suit summons, the defendant has appeared and filed written statement inter alia contending that he never borrowed any amount from the plaintiff nor executed any documents in favour of the plaintiff and that a stamp paper of Rs. 20/ - in the name of the defendant has been managed by the plaintiff which is alleged to have been bought from State Bank of Mysore, Davanagere on 23.01.2004 and has got cooked up a document by making forged signature of him as well as his father H. Basappa. It was further contended that he has no acquaintance with the plaintiff and there was no occasion for him to borrow loan from the plaintiff. He prayed for dismissal of the suit with costs.

(2.) THE Trial Court raised four issues. During trial, the plaintiff got himself examined as PW -1 and marked Exs. P1 and P2. Defendant got himself examined as DW -1. There was no cross -examination of DW -1. Learned Trial Judge considering the record of the suit, answered issue Nos. 1 and 3 in the negative and issue No. 2 in the affirmative and as a result, the suit was dismissed by directing the parties to bear their own costs. This appeal is directed against the said Judgment and Decree.

(3.) SRI Vishwajith Shetty, learned advocate appearing for the respondent, on the other hand contended that the plaintiff's claim as put forth in the plaint was contested by filing written statement and based on the pleadings, issues were raised and the plaintiff chose to close his case by examining himself as PW -1 and producing a promissory note and an RTC extract. Learned counsel submitted that the defendant -DW -1, was not cross -examined and his evidence having remained unchallenged, learned Trial Judge, upon appreciation of the material on record has rightly dismissed the suit, since the plaintiff failed to prove the alleged loan transaction and sought dismissal of the suit.