NALAMOTHU SAIBABU NAIDU Vs. CHIDIPOTHU KRISHNAIAH

JUDGEMENT

(1.) The unsuccessful plaintiff is the appellant herein, who seeks to assail the judgment and decree in A.S. No. 38 of 1987 dated 20-12-1990 passed by the Additional District Judge, Ongole, reversing the judgment and decree in O.S. No. 54 of 1983 dated 24-1-1987 passed by the Subordinate Judge, Kandukur dismissing the suit filed by the plaintiff for recovery of certain sums.

(2.) Briefly narrated the averments in the plaint are that the appellant herein had filed a suit for recovery of a sum of Rs. 17.380/- being the principal on the foot of a promissory note dated 30-11-1982 executed by the respondent-defendant in favour of the appellant/plaintiff for a sum of Rs. 15,383/- repayable with interest at 12% per annum. The appellant filed the said suit on 1-10-1983 after issuing notice dated 1-6-1983 by the plaintiff and followed by a reply by the defendant on 24-6-1983. The defendant filed the written statement initially on 27-7-1984. Subsequently after taking permission by filing I.A. No. 701 of 1984 to inspect the suit document, the defendant filed additional written statement, with leave, on 15-11-1985. In the original written statement, the defendant raised a plea of total denial of the suit claim and also pleaded specifically as to the forging of his signature on the pronote. However, in the additional written statement the said plea was changed to that of a renewal of an earlier debt. In fact the trial was proceeded with even before filing of the additional written statement, and subsequently after filing of the additional written statement, witnesses were recalled and again they were participated in the trial. The trial Court disbelieving the theory of renewal of earlier debt, decreed the suit, whereas the appellate Court accepted the plea of renewal of earlier debt, dismissed the suit.

(3.) Mr. G. Pedda Babu, learned counsel appearing for the appellant submits that the defendant having raised a specific plea in his original written statement that his signature in the suit promissory note was forged, he cannot be permitted to raise a totally varying plea of renewal of earlier debt in the additional written statement and therefore the lower appellate Court was not right in accepting the said plea, which is clearly barred by Order VI, Rule 7 of the Code of Civil Procedure. He also sought to place reliance on the decision of a Division Bench of this Court in Hatim Attari v. Mrs. Sylvie Goudchau, (1969) 1 APLJ 484. On the other hand Mr. Ramaiah, learned counsel appearing for the respondent submits that having regard to the acceptance of the plea of the defendant by the lower appellate Court, this Court would not interfere with the same in this appeal.