Allowed

Smt Usharani v. M Ramesh

Karnataka HC26 Sept 2024RSA/824/2014

Case brief

AI extract

What is this about?

Second appeal against decrees in a money recovery suit on a promissory note said to be executed by the appellants' deceased father. The High Court set aside the first appeal judgment because the first appellate court disposed of the appeal without deciding the defendants' application for additional evidence, and remanded the appeal for fresh disposal.

What did the court decide?

Impugned first appellate judgment set aside; appeal (R.A.No.174/2012) restored and remanded for decision of I.A.No.6 along with the appeal; all contentions kept open.

Smt Usharani Vs M Ramesh — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:40166 RSA No. 824 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 824 OF 2014 (MON)

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BETWEEN:

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SMT USHARANI

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W/O LATE D L SHIVALINGAMURTHY AGED ABOUT 48 YEARS,

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AJAYKUMAR

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S/O LATE D L SHIVALINGAMURTHY AGED ABOUT 29 YEARS,

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SMT PARIMALA

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D/O LATE D L SHIVALINGAMURTHY AGED ABOUT 27 YEARS,

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AJITHKUMAR

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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S/O LATE D L SHIVALINGAMURTHY AGED ABOUT 25 YEARS

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ALL ARE R/O PONNASAMUDRA Y N HOSAKOTE HOBLI, PAVAGADA TALUK, TUMKUR DISTRICT-572 141

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…APPELLANTS

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(BY SRI. GANGADHARAPPA A V., ADVOCATE)

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AND:

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M RAMESH S/O KURUBARA MUTHYALAPPA, AGED ABOUT 42 YEARS, R/O PONNASAMUDRA,

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Y N HOSAKOTE HOBLI, PAVAGADA TALUK

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TUMKUR DISTRICT-572 141

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…RESPONDENT

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(BY SRI. G S VENKATA SUBBA RAO, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.3.2014 PASSED IN R.A.NO.174/2012 ON THE FILE OF THE IV ADDL. DISTRICT & SESSIONS JUDGE, MDAHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.9.2012 PASSED IN O.S.NO.21/2001 ON THE FILE OF THE SENIOR CIVIL JUDGE, PAVAGADA.

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

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed by the appellants challenging the judgment and decree dated 13.03.2014 passed in R.A.No.174/12 by the IV Additional District and Sessions Judge, Madhugiri and judgment and decree passed in O.S.No.21/2001 dated 28.09.2012 passed by Senior Civil Judge, Pavagada.

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For convenience, the parties are referred according to their ranking before the trial Court. The

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NC: 2024:KHC:40166 RSA No. 824 of 2014

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appellants are the defendants; the respondent is the plaintiff.

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Brief facts leading rise to the filing of this

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appeal are as follows:

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The plaintiff filed a suit for recovery of money against the defendants. It is contended that the defendants borrowed a sum of Rs.60,000/- from the plaintiff on 12.01.1997 from D.L. Shivalingamurthy and agreed to repay the interest @ 1.5% p.m. and he had executed an on-demand promissory note and consideration receipt. It is contended that Shivalingamurthy died, leaving behind the defendants. It is contended that the plaintiff demanded the amount, but the defendants refused to repay the amount obtained by Shivalingamurthy. Hence, a cause of action arose for the plaintiff to file a suit for recovery of money.

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The defendants filed a written statement denying the averments made in the plaint, and it is

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contended that the plaintiff, in collusion with the attestors, created a demand promissory note, consideration receipt

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and acknowledgement. It is contended that Shivalingamurthy was a drunkard. He has mismanaged the funds of the family for his bad habits and sold most of the family properties to meet his illegal expenses. Hence, it is contended that defendants are not liable to pay the amount. Hence, prayed to dismiss the suit.

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The Trial Court, on the basis of the abovementioned pleadings, framed the following issues:

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1) Whether the plaintiff proves that on 12.01.1997 deceased D.L.Shivalingamurthy had borrowed a sum of Rs.60,000/- from the plaintiff to meet out his legal necessities and agreed to repay the said amount with interest thereon at the rate of Rs.1.50% per month and had executed an on Demand Promissory Note in favour of the plaintiff in the presence of the witnesses?

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2) Whether the plaintiff further proves that the said deceased Shivalingamurthy during his life time on 25.01.1998 has made repayment of Rs.10,800/- towards interest and principal and the same has been endorsed on the alleged pro-note acknowledging the balance of debt?

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3) Whether the plaintiff is entitled to recover the claim amount of Rs.92,900/- with interest thereon at the rate of 1.50% rupees per month from the defendants as sought for?

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4) Whether the defendants prove that they are not under the pious obligation to discharge his debt of their deceased father as contended in para No.4 of the written statement?

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5) Is the suit claim is barred by limitation?

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6) To what order or decree?

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Additional Issue:

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1) Whether defendants prove that the suit of plaintiff is not maintainable in view of the provisions of Karnataka Money Lenders Act?

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To substantiate his case, the plaintiff examined

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himself as PW.1 and examined two witnesses as PWs.2 and 3, and marked eight documents as Exs.P1 to 8. On the other hand, defendant No.3 was examined as DW.1 and got marked seven documents as Exs.D1 to 7. The trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, answered issues Nos.1,2 in the affirmative, issue No.3 partly in the affirmative, issues Nos.4, 5 and

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additional issues in the negative and issue No.6 as per the final order. The suit of the plaintiff was decreed in part with costs, and it is declared that the plaintiff is entitled to recovery of the amount of Rs.92,900/- from defendant Nos.1 to 5 with interest @ 6% p.a. from the date of suit till its realization. It is made clear that defendants being a

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legal representatives of the deceased D.L.Shivalingamurthy are liable to discharge the decreetal amount to the extent of properties inherited by them from the deceased D.L.Shivalingamurthy and it is also made clear that the defendants are not personally liable to discharge the decreetal amount.

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The defendants, aggrieved by the judgment and

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decree in O.S.No.21/2001, preferred an appeal in R.A.No.174/2012. The First Appellate Court has framed the following points for consideration:

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1) Whether the trial Court judgment committed an error in decreeing the suit?

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2) Whether the judgment and decree of the trial Court is perverse, illegal and contrary to the law and calls for interference?

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3) What order?

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The first Appellate Court, on the reassessment of oral and documentary evidence, answered points Nos.1 and 2 in the negative and point No.3 as per the final order. The first Appellate Court dismissed the appeal vide judgment dated 13.03.2014 and confirmed the judgment and decree passed by the trial Court. The defendants, aggrieved by the impugned judgments, have filed this regular second appeal.

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Heard the learned counsel for the defendants

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and also learned counsel for the plaintiff.

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Learned counsel for the defendants submits that the defendants have filed the application in I.A.No.6 for the production of additional evidence under Order 41 Rule 27 of CPC. The first Appellate Court, without passing any order on the said application, has proceeded to dismiss the appeal. Hence, to buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of JATINDER SINGH AND ANOTHER VS.

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MEHER SINGH AND OTHERS REPORTED IN 2008 AIR SCW

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7392 IN CIVIL APPEAL NO.5781/2008 .

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Per contra, learned counsel for the plaintiff submits that the judgment and decree passed by the first Appellate Court is just and proper and supports the impugned judgment. He submits that the first Appellate Court on reassessment of oral and documentary evidence has rightly passed the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal.

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This court admitted the appeal on the following substantial questions of law :

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1) Whether the trial Court and Appellate Court are justified in holding that respondent is not a money lender ignoring Exs.D4 and D6 and not dismissing the suit of the plaintiffs under Section 11 of the Karnataka Money Lenders Act, 1961?

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2) Whether the Appellate Court has erred in not passing any order on I.A.No.VI filed by the appellants under Order XLI Rule 27 of CPC seeking production of certified copy of judgment and decree passed in R.A.No.91/2009.

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13. SUBSTANTIAL QUESTIONS OF LAW: This

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Court has first taken up the substantial question of law No.2 for discussion. If substantial question of law No.2 is answered in affirmative, hence, question of considering substantial question of law No.1 does not arise for consideration by this Court. It is not in dispute that the plaintiff filed a suit for recovery of money alleging that D.L.Shivalingamurthy obtained the loan from the plaintiff for Rs.60,000/- and did not repay the said amount. He died, leaving behind the defendants. The plaintiff requested the defendant to repay the loan amount obtained by D.L.Shivalingamurthy. The defendant did not repay the said amount. The plaintiff filed a suit for recovery of money. The plaintiff examined himself as PW.1 and produced three documents as Exs.P1 to 3. In rebuttal, defendant No.3 was examined as DW.1 and denied the loan obtained by D.L.Shivalingamurthy. Though the trial Court, on the assessment of oral and documentary evidence, decreed the suit, the defendants,

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aggrieved by the judgment and decree passed by the trial Court, filed the appeal in R.A.No.174/2012.

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The defendants filed the application for the production of additional evidence on 15.02.2014. The plaintiff filed an objection to the said application. The first Appellate Court, without passing any order on I.A.No.6 has dismissed the appeal. The procedure adopted by the first Appellate Court is contrary to the law laid down by the Hon'ble Apex Court in the case of JATINDER SINGH AND ANOTHER (referred supra) and also, the judgment of the co-ordinate bench of this Court in the case of the DEPUTY

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COMMISSIONER, TALUKA SOCIAL WELFARE OFFICE, RAICHUR AND ANOTHER VS. CHANNAVEERYYA AND ANOTHER REPORTED ILR 2012 KAR 3594 AND IN W.P.NO.5234/2005 REPORTED IN 2006 (2) KCCR 814. The first Appellate Court committed an error in not passing the order on I.A.No.6. Hence, on this ground alone, the impugned judgment passed by the first Appellate Court is liable to be

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set aside. Accordingly, I answer the substantial question

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of law No.2 in the affirmative.

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As this Court has already observed, judgment and decree passed by the first Appellate Court without passing the order on I.A.No.6 is liable to be set aside. Given the above discussion, substantial question of law No.1 does not arise for consideration.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed.

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Impugned judgment passed by the first

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Appellate Court dated 13.03.2014 passed in R.A.No.174/2012 by the IV Additional District

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and Sessions Judge, Madhugiri, is set aside.

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The appeal is restored.

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The first Appellate Court is directed to

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consider the application I.A.No.4 along with the

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main appeal and pass appropriate order and judgment in accordance with law.

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Parties are directed to appear before the first Appellate Court on 02.12.2024 without awaiting any further notice from the first Appellate Court.

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Office is directed to dispatch the records to

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the first Appellate Court.

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All the contentions of the parties are kept open.

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Office is directed to refund the Court fee as

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per Section 65 of the Karnataka Court fees and suit Valuation Act.

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Learned counsel for the appellant submits

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that by virtue of interim order, the appellant has deposited 50% of the decreetal amount.

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Office is directed to transmit the said

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amount to the first Appellate Court. As the appeal is of the year 2012, the first Appellate Court is directed to dispose of the appeal as expeditiously as possible. The first Appellate Court is directed to keep the said amount in Fixed Deposit, till the disposal of appeal.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS

Smt Usharani v. M Ramesh

Case brief

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Smt Usharani v. M Ramesh

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