JAYAMANGALA VENKATESWARA RAO Vs. KALLA APPA RAO

JUDGEMENT

(1.) One Kalla Appa Rao, husband of Kalla Rangamma, the plaintiff in O.S.No.215/90 on the file of I Additional District Munsif, Eluru had moved this Court in C.M.P.No.16116/2003 praying for vacation of interim stay granted in C.M.P.No.10500/2003 dated 2-5-2003. Sri T.N.M.Ranga Rao, the learned Counsel representing the vacate stay petitioner/respondent in the Second Appeal raised a preliminary objection relating to the maintainability of the Second Appeal. In view of the same, with the consent of both the Counsel, the main Second Appeal itself was heard. Sri Srinivas, the learned Counsel representing Jayamangala Venkateswara Rao, the appellant in the Second Appeal - defendant in the suit, had drawn my attention to the substantial questions of law raised in the Grounds of Second Appeal and had maintained that both the Courts had totally erred in decreeing the suit though Ex.A-1, the promissory note dated 7-8-1988 was not proved in accordance with law. The learned Counsel also had contended that there are no attestors in Ex.A-1 and the scribe was not examined and hence in view of the specific denial of the execution of the promissory note itself, the defence taken by the appellant/defendant the relief should have been negatived to the deceased plaintiff Kalla Rangamma since the burden was not discharged. The learned Counsel also had maintained that in the facts and circumstances of the case, the presumption available under Section 118 of the Negotiable Instruments Act 1882, definitely cannot be drawn in favour of the deceased plaintiff. Reliance was placed on G.VASU Vs. SYED YASEEN SIFUDDIN QUADRI. The learned Counsel also had contended that in the absence of any other evidence except that of PW-1 Kalla Rangamma, just on the strength of the expert evidence, who was not even examined, the suit cannot be decreed. The learned Counsel had taken me through the findings recorded by both the Courts below and had made submissions touching the merits and demerits of the Second Appeal. However, the learned Counsel in all fairness had submitted that the suit filed by the plaintiff was for the recovery of Rs.21,130/-, but however the learned Counsel would maintain that the objection of the other side that the Second Appeal cannot be maintained in view of Section 102 CPC, hereinafter referred to as "Code" in short, cannot be made applicable to the present facts of the case since the same cannot have the retrospective operation and at any rate the date of institution of the suit may have to be considered for the purpose of deciding the applicability or otherwise of Section 102 of the Code.

(2.) Per contra, Sri T.N.M.Ranga Rao, the learned Counsel representing the respondent in the Second Appeal had raised a preliminary objection relating to the maintainability of the Second Appeal on the ground that the subject matter of the Original Suit is for recovery of money not exceeding Rs.25,000/- and hence no Second Appeal lies in view of the bar imposed by Section 102 of the code. The learned Counsel further elaborating his submissions had taken me through Section 102 of the Code as substituted by Act 46/99 and Act 22/2002 dated 1-7-2002 and had contended that inasmuch as the Second Appeal was presented on 7-4-2003, the amended provision is clearly applicable and hence the present Second Appeal is not maintainable. The learned Counsel further had taken me through the findings recorded by both the Courts below and had maintained that in Ex.A-1 there are no attestors and the appellant/defendant had taken the document to an expert for comparison of signatures and on the strength of the expert opinion, coupled with the clear evidence of PW-1 and Ex.A-1 to A-3, the Courts below had recorded concurrent findings relating to the execution and validity of Ex.A-1, the suit promissory note dated 7-8-1988 and such concurrent findings even otherwise need not be disturbed in the present Second Appeal. Heard both the Counsel and perused the oral and documentary evidence available on record and also the findings recorded by both the Courts below. The respective pleadings of the parties are as hereunder: The deceased Kalla Rangamma, plaintiff in O.S.No.215/90 had pleaded as hereunder: The defendant borrowed a sum of Rs.15,000/- from plaintiff for his necessities on 7-8-1988 agreeing to repay the same with interest at the rate of 2% per mensum and executed pronote in favour of plaintiff on 7-8-1988. But though demanded, the defendant did not repay the pronote amount and had been postponing the payment and he had not made any part payment and he was evading payment. The plaintiff issued notice on 3-4-1990 through Advocate. The defendant is not entitled for the benefits of Act 7 of 1977.

(3.) The respondent/defendant filed a written statement with the following allegations : The suit is not maintainable in law. It is stated that the defendant never borrowed any amount from plaintiff or anybody else, much less the suit amount from the plaintiff and the suit pronote is a rank forgery and was brought into existence with a view to harass the defendant due to political factions in the village. It is stated that the plaintiff had no capacity to pay such amount to the defendant and there are no attestors to the alleged pronote and signature of the defendant on the suit pronote is a rank forgery. It was also pleaded that no consideration was paid by the plaintiff and there was no cause of action to file the suit and the defendant is entitled to the benefits of Act 4/38 and Act 7/77 as amended by Act 45/87 and by applying the above provisions, the alleged debt is deemed to have been discharged by the defendant. The defendant had not signed in the alleged suit pronote and the signature does not belong to him. On the strength of the respective pleadings of the parties, the following Issues were settled: 1. Whether the suit pronote dt.7-8-1988 is true, correct, valid and binding on the defendant ? 2. Whether the plaintiff has no cause of action to file the suit as contended by defendant ? 3. Whether the defendant is entitled to the provisions of Act 4/38 and Act 7/77 ? 4. To what relief ?