Smt Vijayalakshmi Vs Smt Gayathriamma

SMT VIJAYALAKSHMI W/O LAKSHMIPATHI AGED ABOUT 41 YEARS R/AT SAPTHAGIRI LAYOUT BEHIND JANATHA COLONY SHETTAHALLI MAIN ROAD, TUMKUR-572 101. ALSO AT DORR NO. 51, SRI LAKSHMINARASIMHA NILAYA BEHIND JANATA COLONY, SHETTI HALLI MAIN ROAD, TUMKUR TOWN, TUMKUR - 572 101. …APPELLANT (BY SRI. DEEPAK J., ADVOCATE) AND:

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SMT. GAYATHRIAMMA W/O LATE BASAMANGAPPA AGED ABOUT 40 YEARS R/AT SINGAVARATHANAHALLI VILLAGE DODDERI HBLI,

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NC: 2025:KHC:36452 RSA No. 680 of 2023 C/W RSA No. 683 of 2023 RSA No. 686 of 2023

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HC-KAR

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MADHUGIRI TALUK - 572 112

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…RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.01.2023 PASSED IN RA.No.41/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.04.2015 PASSED IN OS No.250/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MADHUGIRI.

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IN RSA NO. 683/2023

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BETWEEN:

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SMT. VIJAYALAKSHMI W/O LAKSHMIPATHI AGED ABOUT 42 YEARS R/AT SAPTHAGIR LAYOUT BEHIND JANATHA COLONY SHETTIHALLI MAIN ROAD TUMKUR

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...APPELLANT

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(BY SRI. DEEPAK J., ADVOCATE)

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AND:

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SMT. GAYATHRIAMMA W/O ALTE BASAMANGAPPA AGED ABOUT 40 YEARS, R/AT SINGAVARATHANAHALLI VILLAGE, DODDERI TALUK MADHUGIRI TALUK

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...RESPONDENT

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THIS RSA IS FILED UNDER SEC. 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.01.2023 PASSED IN RA NO. 43/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC MADHUGIRI DISMISSING AND CONFIRMING THE APPEAL AND FILED

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HC-KAR

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AGAINST THE JUDGMENT AND DECREE DATED 18.04.2015 PASSED IN OS NO. 251/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC MADHUGIRI.

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IN RSA NO. 686/2023

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BETWEEN:

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SMT. VIJAYALAKSHMI W/O LAKSHMIPATHI AGED ABOUT 42 YEARS R/AT SAPTHAGIRI LAYOUT BEHIND JANATHA COLONY SHETTAHALLI MAIN ROAD TUMKUR - 57221

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...APPELLANT

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(BY SRI. DEEPAK J.,ADVOCATE)

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AND:

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SMT. GAYATHRIAMMA W/O LATE BASAMANGAPPA AGED ABOUT 40 YEARS, R/AT SINGAVARATHANAHALLI VILALGE, DODDERI HOBLI-572112 MADHUGIRI TALUK

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...RESPONDENT

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREED DATED 12.01.2023 PASSED IN RA NO.42/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.04.2015 PASSED IN OS NO. 249/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MADHUGIRI,

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HC-KAR

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard learned counsel for the appellant in all these three matters.

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Present appeal is filed by the defendant

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challenging the validity of the judgment passed in O.S.Nos.250/2013, 251/2013 and 249/2013.

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For the sake of convenience, respective suit numbers, regular appeals and decreetal amount in all these matters are tabulated hereunder:

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Original Suit Number	Regular Appeal Number	Decreetal Amount
O.S.No.251/2013	RA No.43/2018	Rs.1,00,000/-
O.S.No.250/2013	RA No.41/2018	Rs.1,00,000/-
O.S.No.249/2013	RA No.42/2018	Rs.1,00,000/-

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HC-KAR

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Appellant is challenging the money decree

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passed in the aforesaid suits which was confirmed in the First Appellate Court.

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Facts in brief which are utmost necessary for disposal of the appeal are as under:

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5.1. A suit came to be filed by the respective

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plaintiffs in all these three matters against the appellant who was the common defendant before the Trial Court. Suit was based on a dishonored cheque issued by the defendant. There is no dispute that the cheque belongs to the defendant nor the signature found therein. The defence that was urged in the form of reply notice before the Trial Court is that the defendant has kept the signed cheques which has been misused by a person by name Devaraju of Agali village, Anantapura District, Andhra Pradesh state. As such, there was no liability of defendant to honour the cheques.

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HC-KAR

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5.2. It is also contended that said Devaraju in turn

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handed over the cheques to the respective plaintiffs and the cheques were presented to the bank and got dishonored.

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5.3. It is also contended by the defendant that bank account of the defendant was closed in the year 2008 itself. But with a malafide intention, Devaraju and plaintiff have colluded together and got dishonored the cheques in the year 2013 and filed the false suit against the defendant resulting in miscarriage of justice and thus, sought for admitting the appeals for further consideration.

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Suit on contest, came to be decreed noting that

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there is a presumption under Section 118 of the Negotiable Instruments Act in respect of the dishonored cheques and there was no rebuttal evidence placed on record by the defendant.

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HC-KAR

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Being aggrieved by the judgments passed by

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the Trial Court, defendant filed respective first appeals as referred to supra.

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Learned Judge in the First Appellate Court on reappreciation of the material evidence placed on record, dismissed the appeal on merits.

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Before this Court, common grounds in all these appeals have been raised and following common substantial questions of law are raised in the respective appeals:

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The 1st Appellate Court while considering the said Appeal failed to see the medical records produced by the Appallent proving the failure to appear before the Court and the said document was blindly rejected. Then has come to the conclusion that no relevant documents are produced to prove there case.

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Admittedly if an Ex-parte order has been passed the same can be set aside by the Appellate Court if sufficient causes are shown by the Appellant. Admittedly the Appallent has produced the Death Certificate of the Advocate on record and also the

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HC-KAR

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medical certificates wherein the daughter of the Appellant had undergone surgery in NIMHANS before the Appallete Court. The Court without looking into the said aspect has passed an order against the Appellant.

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The Trial Court failed to see the conduct of the Party wherein she has not disclosed the source of income, her earning capacity and also how the transaction were made whether the amount was paid in cash or cheque.

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The Respondent has admitted that the amount was given in the presence of 3 Witness and the same Witness were present when 2 different transactions were done in similar 2 cases filed against the Appellant by the Respondent, they do not whisper regarding any of the prevsion Transaction. This Strengthens the case of the Appellant that the Cheque was misused, further doubt arises regarding why she has not filed the suit for recovery jointly as the said amount would be upto Rs 3,00,000/-.

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The Evidences of 3 Witnesses of the Respondent creates a doubt as they are the only witness present in her house when the transaction were taken place between the Appallent and the Respondent on different dates.

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HC-KAR

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The Respondent has taken a contention that they are family friends but except a vague statement nothing is fruitfying her version. It is pertinent to note that the Appallent is a resident of Tumkur City wheeas the Respondent is staying in a remote region of Tumkur i.e Madhugiri. The Appallent has even stated in her Reply Notice and also in her Written Statement

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The Court below failed to see the handwriting over the cheque it is the contention that the cheque was duly filled by the Appellant, But as could be seen from the cheque it is filled in 2 languages the name of the Respondent is in kannada and the signature and the entire cheque is filled in English. This Clearly shows that the cheque has been misused.

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The Court failed to see that fraud has been played before the Court and hence the said Case has to be remitted back to the Trial Court for Fresh Consideration.

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SUBSTANTIAL QUESTIONS OF LAW

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1. Whether the First Appellate Court is justified in dismissing the said appeal without considering the factual situation of the said case?

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HC-KAR

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2. Whether the court below was justified in passing an order without the respondent proving his financial Capacity?

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3. Whether the court was justified in believing the version of the two witnesses of the respondent in the Trial Court?

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4. Whether the appellant has shown sufficient Cause to remit the matter to the Trial Court for fresh consideration?

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Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that the lawyer who had been engaged by the defendant subsequently passed away. Therefore, there was no intimation to the defendant about the result of the suit and there was no proper contest of the suit resulting in miscarriage of justice and sought for admitting the appeals.

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Admittedly, before the First Appellate Court, defendant argued these aspects of the matter and on the

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HC-KAR

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factual aspects, the First Appellate Court as well as the Trial Court has disbelieved the case of the defendant.

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Further, in the written statement, except the denial, there is no other material evidence placed on record to show that the presumption available to the plaintiff under Section 118 of the Negotiable Instruments Act could have been rebutted.

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Therefore, the substantial questions of law raised in these appeals would not merit for further consideration.

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Lastly, learned counsel for the appellant has sought for some concession. Since the execution petitions are pending, if the defendant makes a request before Executing Court for concession, Executing Court may consider the same in accordance with law and pass appropriate orders.

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