Allowed

Smt. Rajamma v. Sri. v Krishnamurthy

Karnataka HC13 Sept 2024RSA/482/2016

Case brief

AI extract

What is this about?

Defendants' heirs appealed a decreed money-lending claim on a demand pronote executed by the deceased debtor. Order-sheet review showed cross-examination and defence evidence were taken as 'nil' during their absence, amounting to an ex-parte decree. The Court set aside both decrees and remanded for fresh consideration with opportunity to cross-examine and adduce evidence.

What did the court decide?

Appeal allowed; judgments and decrees of both courts below set aside; matter remitted to Trial Court for fresh consideration with liberty to both parties to cross-examine and adduce evidence; record t

Smt. Rajamma Vs Sri. v. Krishnamurthy — Civil Procedure and Limitation | Karnataka HC (2024)

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1 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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REGULAR SECOND APPEAL NO.482 OF 2016 (MON)

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BETWEEN:

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SMT. RAJAMMA W/O. LATE DUNDAIAH, AGED ABOUT 53 YEARS,

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SMT. SUCHITRA D/O. LATE DUNDAIAH, AGED ABOUT 34 YEARS,

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SWETHA D/O. LATE DUNDAIAH, AGED ABOUT 29 YEARS,

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SAPNA D/O. LATE DUNDAIAH, AGED ABOUT 27 YEARS,

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SUBHASH D/O. LATE DUNDAIAH, AGED ABOUT 23 YEARS,

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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ALL ARE RESIDING AT: #20, I STAGE, KUVEMPUNAGAR, MYSORE. PIN NO.570 023. ... APPELLANTS

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(BY SRI G.B. MANJUNATHA, ADVOCATE)

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AND:

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SRI V. KRISHNAMURTHY S/O. LATE V. VEERANNA, AGED ABOUT 60 YEARS, R/AT #49, 9^TH CROSS, MODEL HOUSE, ASHOKAPURAM, MYSORE. PIN NO.570 008. ... RESPONDENT (RESPONDENT SERVED & UNREPRESENTED)

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NC: 2024:KHC:37827 RSA No. 482 of 2016

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 09.12.2015 PASSED IN R.A.NO.167/2012 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE & CJM., MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.04.2012 PASSED IN O.S.NO.1530/2009 ON THE FILE OF THE III ADDL. I CIVIL JUDGE & JMFC., MYSURU.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Defendants are before this Court in the regular second appeal assailing the legality and correctness of the judgment and decree dated 09.12.2015 in R.A.No.167/2012 on the file of the I Additional Senior Civil Judge and CJM., Mysuru (hereinafter referred to as ‘the First Appellate Court’ for short), confirming the judgment and decree dated 13.04.2012 in O.S.No.1530/2009 on the file of the III Additional I Civil Judge and JMFC, Mysuru (hereinafter referred to as ‘the Trial Court’ for short).

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Parties herein are referred to as per their rank before the Trial Court for the sake of convenience.

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3 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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Brief facts:

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Suit for recovery of Rs.1,13,520/- with interest @ 18% p.a., the plaintiff states that the husband of defendant No.1 one Dundaiah was known to the friend of plaintiff one Manchaiah and on recommendation and on influenced by him, the plaintiff advanced a loan of Rs.80,000/- to Dundaiah for his legal necessity on 10.06.2007 and Dundaiah executed a demand pronote and the consideration receipt agreeing to repay the loan amount and interest thereon whenever it is demanded by the plaintiff. That the defendant expired on 02.09.2007, leaving behind the defendants as his legal heirs, when the plaintiff approached the legal representatives of Dundaiah and informed them about the execution of the demand pronote on 10.06.2007, the defendants agreed to return the loan amount along with interest, however, in spite of repeated demands and requests made by the plaintiff, the defendants did not pay the loan amount, a legal notice

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was issued calling upon to repay the amount of Rs.80,000/- along with interest @ 18% p.a. The

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NC: 2024:KHC:37827 RSA No. 482 of 2016

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defendants replied to the said notice denying the claim made by the plaintiff and the plaintiff instituted the present suit for recovery of said claim with future interest.

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On notice, defendants appeared and filed their written statement, inter alia, denying the plaint averments and contending that Dundaiah had never executed the demand pronote or the consideration receipt either by receiving the loan amount nor made any demand to the plaintiff in light of any financial difficulties.

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Before the Trial Court, the Special Power of Attorney Holder of the plaintiff, by name, Manchaiah was examined as P.W.1. On the other hand, the defendants did not cross-examine P.W.1 nor let in any evidence. The Trial Court by the judgment and decree, decreed the suit of the plaintiff for recovery of money and held that the defendants are jointly and severally liable to pay the amount of Rs.1,13,520/- with interest @ 6% p.a.

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5 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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Aggrieved, the defendants preferred the appeal

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before the First Appellate Court, specifically taking a ground that the Trial Court had not given sufficient opportunity to the appellants-defendants to cross-examine P.W.1 and to lead the evidence on their behalf and the judgment passed by the Trial Court has resulted in miscarriage of justice to the appellants-defendants. The First Appellate Court observed that the order sheet of the Trial Court speaks the truth in voluminous and the contention of the defendants that they were not given sufficient and proper opportunity was not accepted by the First Appellate Court and by judgment and decree, confirmed the order of the Trial Court.

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This Court while admitting the appeal on 04.04.2022 has framed the following substantial questions of law:

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“Whether the trial Court and First Appellate Court fail to consider that PW-1 was not competent witness to speak about the transaction between the plaintiff and

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6 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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deceased Gundaiah, who is the husband of the appellant No.1 and father of appellant Nos.2 to 5.?”

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At the time of arguments, additional substantial

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question of law is framed as under:

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“Whether the appellants-defendants were offered sufficient and reasonable opportunity to cross-examine P.W.1 and lead evidence on their behalf and whether the denial of opportunity has led to miscarriage of justice warranting any interference by this Court?”

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Heard the learned counsel for the appellant.

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Though the notice is duly served on the respondent, he has chosen to remain absent.

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Reiterating the various contentions and grounds

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made out in the appeal memo, learned counsel for the appellants mainly contends that the judgment and decree of the Courts below is erroneous and opposed to the principles of natural justice and would submit that the appellants had filed written statement, however, the appellants-defendants were not afforded sufficient

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7 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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opportunity to put forth their contention by crossexamining P.W.1 and leading evidence of the defendants and for the said reason, the judgment and decree of the Trial Court and the First Appellate Court need to be set aside and an opportunity needs to be accorded to the appellants-defendants to prove their case.

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On perusal of the order sheet of the Trial Court, it indicates that on 07.03.2012, P.W.1 was absent and the matter stood adjourned, on 14.03.2012, P.W.1 was present, the defendants and their counsel were absent and the cross-examination of P.W.1 was taken as ‘nil’ and posted for defendants evidence. On 22.03.2012, as the defendants and their counsel were absent, the defendants evidence was taken as ‘nil’ and posted for arguments. On 03.04.2012, the plaintiff’s counsel was heard, the defendants’ counsel was absent, his arguments were taken as not adduced and the matter was posted for judgment. The perusal of the order sheet would indicate that the entire proceedings of leading evidence and arguments

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8 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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took place within a period of one month and the defendants were denied the opportunity to cross-examine P.W.1 and to lead their evidence. The order sheet reveals that an ex-parte judgment and decree is passed by the Trial Court.

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Learned counsel for the appellant submits that the demand pronote alleged to be executed by deceased Dundaiah was on 10.06.2007 and the said Dundaiah died within two months from the date of execution of the alleged demand pronote, which has been specifically pleaded by the defendants in their written statement and in order to prove that there was no execution of the alleged pronote, an opportunity needs to be accorded to the defendants to prove their contentions / averments made in the written statement. Further, it is submitted that P.W.1 is the power of attorney holder of the plaintiff and is in no way connected to the alleged transaction, neither he well versed about the transaction alleged to have taken place between the plaintiff and late Dundaiah

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9 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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and to prove that P.W.1 was not competent to adduce the evidence on behalf of the plaintiff, an opportunity needs to be accorded. In support of his contention, learned counsel has placed the following decisions:

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i. Janki Vashdeo Bhojwani and another Vs.

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Indusind Bank Ltd. and others¹

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ii. S. Kesari Hanuman Goud Vs. Anjum Jehan and Ors²

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There is sufficient force in the submission made

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by the learned counsel for the appellants and for the foregoing reasons, the additional issue framed by this Court is answered in favour of the appellants and the substantial question of law framed on 04.04.2022 is not answered by this Court, keeping it open to be considered by the Trial Court and the matter requires to be remitted back to the Trial Court for fresh consideration after affording sufficient opportunity to the appellants and this Court pass the following:

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1 AIR 2005 SC 439

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2 2013 AIR SCW 3561

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10 -

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NC: 2024:KHC:37827 RSA No. 482 of 2016

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ORDER

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i. Regular second appeal is allowed.

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ii. Judgment and decree of the Courts below are hereby set-aside, the matter is remitted back to the Trial Court for fresh consideration in

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accordance with law.

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iii. The Trial Court to afford an opportunity to the appellants-defendants to cross-examine the plaintiff and adduce their evidence.

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iv. The appellants to appear before the Trial Court on 15.10.2024. Since the respondent has not appeared before this Court, the Trial Court to issue notice to the respondent-plaintiff.

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v. Appellants-defendants to cross-examine PW.1 and other witnesses examined on behalf of the plaintiff, if any. Appellants/defendants to adduce oral and documentary evidence.

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vi. Liberty is reserved to both the parties to adduce both oral and documentary evidence in support of

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11 - NC: 2024:KHC:37827 RSA No. 482 of 2016

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their respective contentions and cross-examine

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the witnesses examined by the either side.

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vii. Registry is directed to transmit the trial Court record forthwith.

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viii. All contention of the parties are kept open to be urged before the Trial Court.

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ix. This Court has not expressed any merits or demerits of the case and any observation made is only to the limited purpose of consideration of this appeal.

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Sd/(K.S. HEMALEKHA) JUDGE

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MBM

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List No.: 2 Sl No.: 1

Smt. Rajamma v. Sri. v Krishnamurthy

Case brief

What is this about?

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Smt. Rajamma v. Sri. v Krishnamurthy

Case brief

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