IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA R.S.A.NO.2573/2010(MON) BETWEEN 1. SRI HARIJANA BHAKSHI SUDUGADEPPA, S/O LATE MAREPPA, AGED ABOUT 66 YEARS, OCC: AGRICULTURE R/O KONGANAHOSUR VILLAGE, POST : NANDIBEVOOR, TALUK : HARAPANAHALLI – 583 131 DIST : DAVANAGERE.
2. SRI HARIJANA BHAKSHI HANUMANTHAPPA, S/O LATE MAREPPA, AGED ABOUT 57 YEARS, OCC : AGRICULTURE R/O KONGANAHOSUR VILLAGE, POST :NANDIBEVOOR, TALUK : HARAPANAHALLI -583 131 DIST : DAVANAGERE.
3. SRI HARIJANA BHAKSHI MARIYAPPA, S/O LATE MAREPPA, AGED ABOUT 53 YEARS, OCC : AGRICULTURE R/O KONGANAHOSUR VILLAGE, POST : NANDIBEVOOR, TALUK : HARAPANAHALLI – 583 131 DIST : DAVANAGERE. …APPELLANTS (BY SRI K.G.SHANTHAPPA, ADVOCATE) AND :
SRI SULADARAHALLI KOTRAPPA, S/O LATE HIRIYAPPA, AGED ABOUT 61 YEARS, OCC : AGRICULTURE, R/O KONGANAHOSUR VILLAGE, POST : NANDIBEVOOR, TALUK : HARAPANAHALLI – 583 131 DIST : DAVANAGERE. …RESPONDENT (BY SRI RUDRAPPA.P, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 30.06.2010 PASSED IN R.A.NO.85/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, HARAPANAHALLI, ALLOWING APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 01.04.2009 PASSED IN O.S.NO.45/2004 ON THE FILE OF THE CIVIL JUDGE (JR.DN), HARAPPANAHALLI.
THIS RSA COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Defendants in OS.No.45/2004 on the file of Civil Judge (Jr.Dn), Harapanahalli, have come up in this second appeal impugning the divergent finding rendered in RA.No.85/2009 on the file of Civil Judge (Sr.Dn), Harapanahalli.
2. Brief facts leading to this second appeal are as under:
Suit in O.S.No.45/2004 is filed by the sole respondent herein seeking recovery of a sum of Rs.48,412/- along with interest at 24% p.a., from the date of suit till date of recovery of said amount. According to him, defendants in the suit, who are appellants herein are brothers; that they were in need of funds for construction of house and also for purchase of bullocks to help in their agricultural activity, hence, they approached the plaintiff and secured loan of Rs.23,000/- by executing a promissory note which is produced and marked as Ex.P1 in the trial court. In the said suit, it is also contended that the defendants after securing loan on 1.4.1999 made part payments of the loan amount on 2 occasions i.e., Rs.1000/- was returned on 26.3.2000 and Rs.1,500/- on 16.4.2001, which is towards principal amount and interest accrued till then. Barring these two payments, no other payments are said to have been made. It is in this background that the suit was filed.
3. In the said suit after service of summons to the defendants, they entered appearance and filed written statement. Their written statement is nothing but one of denial, wherein besides denying execution of promissory note in favour of plaintiff on 1.4.1999 and borrowing of loan as stated in the promissory note, nothing else was mentioned with reference to loan transaction and no specific defence was also taken in the written statement which was filed by all the three defendants.
4. Based on the pleadings, the trial court proceeded to frame in all 4 issues. Out of that, the first one is with reference to whether plaintiff would establish execution of promissory note by defendants; second one is, whether the suit is well within the period of limitation; third one is whether the plaintiff is entitled to the relief which he has sought in the suit and fourth one is, what is the order or decree the plaintiff is entitled to.
5. In the said suit, evidence was recorded on behalf of the plaintiff, who had examined himself as PW.1 and he had also examined two other witnesses who were present at the time of execution of promissory note at Ex.P1 as PWs.2 and 3. The said witnesses were not cross- examined and no evidence was led on behalf of the defendants resulting in the suit of the plaintiff being decreed by judgment and decree dated 13.1.2005. Against which the defendants had preferred an appeal in RA.No.9/2005 on the file of Civil Judge (Sr.Dn), Harihar, wherein it was contended that sufficient opportunity was not given to them to adduce evidence in support of their defence and also to oppose the claim of the plaintiff in proper manner by relying upon the evidence available with them. It is in this background that the appeal in RA.No.9/2005 came to be allowed by judgment and decree dated 31.8.2006 in setting the judgment and decree passed in OS.No.45/2004 and remanding the matter back to the trial court for re-consideration.
6. In the remanded matter, it is seen that the defendants have filed an application seeking to refer the document at Ex.P1-promissory note to handwriting expert to establish whether the signature found on the document is comparable to the admitted signatures of the defendants. It is seen that in the remanded proceedings the report of the handwriting expert and the evidence adduced by him as CW.1 was relied upon by the defendants to establish that there is difference in the signature and thumb impression of the defendants as seen in the vakalath and other admitted signatures to that of the signature in Ex.P1. It is seen that the trial court accepting the same has dismissed the suit of the plaintiff by judgment and decree dated 1.4.2009.
7. The dismissal of suit was subject matter of an appeal in RA.No.85/2009 on the file of Senior Civil Judge, Harapanahalli, where the lower appellate court after going through the judgment and decree impugned therein and also on the basis of the grounds urged in the regular appeal proceeded to frame two points for consideration. Out of that, the first point is whether the plaintiff establishes that the finding of the trial court to the effect that he has failed to prove due execution of the on demand promissory note dated 1.4.1999, is erroneous and the second one is, what order or decree that he is entitled to.
8. The lower appellate court on re-appreciation of the pleadings, oral and documentary evidence available on record proceeded to answer the 1st point for consideration in the affirmative in holding that the plaintiff was able to establish that the trail court in the remanded original suit has miserably failed to appreciate the evidence available on record and wrongly held that the plaintiff has failed to prove execution of on demand promissory note dated 1.4.1999. The said finding is based on re-appreciation of the evidence available on record i.e., the evidence of PWs.1 to 3 as against that of the evidence of the 1st appellant herein, 1st defendant in the original suit.
9. It is seen that in the remanded proceedings before trial court, it is only the 1st defendant who has stepped into the witness box, who denied all the averments made in the plaint and also made several allegations in his evidence which was not even the basis of his defence in the original suit. As stated earlier, while filing written statement the defence is nothing but one of denial without raising any specific defence. However, there is an attempt on the part of defendants to develop the denial which was made in the written statement by stating that there was a loan transaction earlier between the plaintiff and defendants and the documents which were executed at that time are utilized for the suit transaction, which according to them has not taken place. Though such a defence was tried to be established in the cross-examination of DW.1, no independent evidence is led on behalf of the defendants to establish the said aspect. Therefore, the lower appellate court by looking into the conduct of the parties, the manner in which defence is raised and the manner in which evidence is led on their behalf, is convinced beyond reasonable doubt that there is an attempt on the part of defendants in making a bald denial without furnishing any particulars regarding the so-called alleged earlier loan transaction and also to establish that there was no loan transaction between the parties.
10. In fact, when the evidence of CW.1 - the Court Commissioner is looked into, it is clearly seen by the lower appellate court that he has not withstood the cross- examination of the plaintiff while he is supporting the defence of defendants regarding the signature of defendants in the vakalath and written statement not being tallying with Ex.P1, the document on which the suit is based. Hence, the lower appellate court on proper appreciation of all this has rightly come to the conclusion to answer the 1st point for consideration in holding that there is serious lapse on the part of trial court in appreciation of pleadings and evidence while coming to a conclusion that the plaintiff has not established and proved the loan transaction with defendants, which appears to be just and proper in the facts and circumstances of the case. In that view of the matter, this Court is of the considered opinion that no grounds are made out in this second appeal to interfere with the well reasoned divergent judgment rendered by the lower appellate court in RA.No.85/2009 in accepting the loan transaction between the plaintiff and defendants which also includes part payments which are made by them on two earlier occasions prior to filing of the suit, which are reflected at the back side of Ex.P1.
In that view of the matter, this second appeal does not merit consideration inasmuch as no substantial question of law arises for consideration in this appeal. Accordingly, this appeal is dismissed.
Sd/- JUDGE nd/-