B LINKAMANAIDU Vs. B LINKAMANAIDU

JUDGEMENT

(1.) THE unsuccessful defendant in the two courts below is the appellant. THE suit was laid by the respondent-plaintiff, a minor represented by his mother, to recovera sum of Rs. 1,291-50 on the strength of a promissory note executed by the defendant in favour of his father for Rs. 1,100/- on 17-2-1972. After the death of his father, the suit was filed by toe minor plaintiff represented by his mother. THE defendant in his written statement admitted execution of the promissory note, but pleaded partial failure of consideration to the extent cf Rs. 250/- ; he also pleaded partial discharge of the debt to the extent of Rs. 365/-. THE trial court held that a sum of Rs. 250;- was not paid under the suit promissory note, and, therefore, to that extent there was no consideration. In the result the suit was decreed for Rs. 850/-with interest at the rate of 5 per cent per annum from the date of promissory note till the date of realisation with proportionate costs. THE appeal preferred by the unsuccessful defendant was dismissed by the learned Principal Subordinate Judge by a well-considered judgment.

(2.) THE only question raised in the second appeal by Sri P.S. Narayana,learned counsel for the defendant-appellant, is that the plaintiff had not produced the succession certificate which alone entitled him to file the suit. In the absence of such succession certificate, the suit was not maintainable. I am unable to accept this contention. For the first time, towards the close of the arguments before the lower appellate court, this contention was raised and the learned Judge negatived the contention observing : "THE defendant had not pleaded the maintainability of the suit on 'he ground of non-production of succession certificate. THE entitlement of the plaintiff to file the suit or to recover the suit amount was not questioned by the defendant in the least in his pleading or in the evidence. It was not raised before the trial court even in .the course of the arguments and no issue was settled on that aspect. Even in the grounds of Appeal the maintainability of the suit was not taken as a ground and it is for the first time in this Court when the appeal suit is heard, the learned counsel pointed out the absence of the succession certificate. I am of the view that right from the year 1975 till now in 1987 at no stage as it was raised, I am not inclined to hold that the suit is not maintainable. A verbal or oral plea of maintainability at most belated stage cannot be made a reason to non-suit the plaintiff". THE learned appellate Judge, in my view, very rightly negatived the plea cf the defendant-appellant. THE second appeal, therefore, fails and is accordingly dismissed at the admission stage.