K DURGA RAO Vs. N SIVA RAMA KRISHNA

JUDGEMENT

(1.) The defendants are the appellants. This appeal arises out of a suit filed for recovery of possession of a lorry APK 4695 or alternatively for recovery of the balance of the hire amount of Rs. 7,790/-. It is stated by the plaintiff that the defendants borrowed a sum of Rs 10,000/- and the lorry APK 4695 was transferred to him pursuant to the hire purchase agreement, that the first defendant is the hirer and the 2nd defendant is the guarentor, that the hire purchase agreement was executed and the payment was agreed to be made by instalments within 22 months from 1-4-1969 and the instalment payable for each month is Rs. 600/-; and that the 1st defendant committed default and after taking into account the amounts paid by him, the balance of Rs. 6790/- has still to be paid. The plaintiff determined the hiring and seized the lorry on 18-1-71, but however on 19-1-1971 the lorry was stolen and the police report was given on 23-1-1971 and it was seized by the police. The plaintiff filed a petition before the 2nd Additional Judicial First Class Magistrate, Eluru, for delivery of the vehicle and on the claim set up by the 2nd defendant, the Magistrate declined to order delivery of the vehicle to the plaintiff and therefore he is obliged to file the suit. The plea of the 1st defendant is that the 2nd defendant alone is the owner of the lorry and he has no concern and the plaintiff making false representations took his signatures on white papers and the suit document is void as the plaintiff made corrections and insertions. The plea of the 2nd defendant is that the plaintiff advanced a sum of Rs. 5.000/- on 25-3-1969 and. that he did not advance any other amount to the defendants that day or any other day on the security of the lorry. The plaintiff obtained signatures on some papers printed in English and also an certain other papers representing that, they were taken to creat a security of hypothecation of the lorry in favour ot the plaintiff. The defendants were not aware of the purport of the documents. The blanks in the printed form on which the signatures of the defendants were obtained were not originally filled up except the figure of Rs. 5,000/- The trial Court decreed he suit. The lower appellate Court confirmed the.judgment of the trial court and held that there is no material alteration in the hire purchase agreement dated 1-4-1969.

(2.) It is found that the execution of Ex. A-1 is admitted by both the defendants. Ex. A-l is the hire purchase agreement. The contention of the learned counsel for the appellants in this appeal and also before the app'ellate authority is that on the last page of Ex. A-l originally the figure of Rs. 5,000/- was only put at the time of signatures and the other columns were not filled up except in the first page and in the first page the figure 12 was put indicating the number of months, but it is found corrected into 22. The lower appellate Court on appreciation of the documentary evidence and circumstances held that the amount lent under Ex. A-l is Rs. 10,000/- but not Rs. 5,000/- and that the figure of Rs. 5,000/- was not erased and was not over-written as Rs. 10,000/- or the figure 12 indicating the number of instalments was not erased and was not over-written as 22 in Ex. A-l. In view of the assertion of the learned counsel for the appellants that there are alterations, erasions and over-writings, I have also examined Ex. A-l and on perusal of the same I do not find any support to the contention raised by the learned cousel for the appellants. I agree with the reasoning and conclusion arrived at by the lower appellate Court.

(3.) The learned counsel for the appellants contended that the plaintiff categorically admitted in his deposition that the accounts are maintained by him and all the transactions are reflected in the accounts and in the absence of production of accounts in support of the claim, adverse inference can be drawn and illustrations (g) of Section 114 of the EVIDENCE ACT, 1872 comes into play. Section 114 of fhe EVIDENCE ACT, 1872 is as follows :