Dismissed

P.R.Nirmal v. T.G.Gopalakrishna Pai

Kerala HC17 Oct 2018CRP/94/2015

Case brief

AI extract

What is this about?

In a civil revision, the High Court of Kerala dismissed the petition challenging the dismissal of an appeal against a decree for recovery of money on a promissory note. The court held that Section 115 of the CPC does not permit interference with concurrent factual findings absent jurisdictional illegality.

What did the court decide?

No order other than dismissal of the revision petition. No costs.

P.R.Nirmal Vs T.G.Gopalakrishna Pai — Property and Title | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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WEDNESDAY,THE 17TH DAY OF OCTOBER 2018 / 25TH ASWINA, 1940

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CRP.No. 94 of 2015

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AGAINST THE ORDER/JUDGMENT IN AS 79/2011 of III ADDL. DISTRICT COURT, THRISSUR DATED 29-11-2014

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AGAINST THE ORDER/JUDGMENT IN OS 2760/2009 of II ADDL.M.C.,THRISSUR DATED 18-10-2010

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REVISION PETITIONER/S:

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P.R.NIRMAL S/O. RAJAN PUTHENPURAKKAL, AYYANTHOLE VILLAGE, ELTHURUTH DESOM, THRISSUR TALUK, THRISSUR DISTRICT.

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BY ADV. SRI.K.A.SATHEESA BABU

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RESPONDENT/S:

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T.G.GOPALAKRISHNA PAI S/O. T.N.GOPALA PAI, THOTTUMADATHIL, PERINGAVU VILLAE AND DESOM, THRISSUR TALUK AND DISTRICT.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30.07.2018, THE COURT ON 17.10.2018 PASSED THE FOLLOWING:

CRP 94/2015

O R D E R

The petitioner is the appellant in A.S.No.79/2011 on the file of the III Additional District Court, Thrissur. The respondent herein is the respondent in the appeal as

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well.

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The respondent herein is the plaintiff in O.S.No.2760/2009 before the II Additional Munsiff's

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Court, Thrissur filed against the petitioner as defendant

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for realisation of a sum of Rs.30,000/- allegedly borrowed by the petitioner on 10.05.2008 on the strength of a promissory note. The plaint averment was that the defendant had repaid only Rs.10,000/- towards the debt

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and the remaining amount of Rs.20,000/- together with interest remains unpaid. The defendant denied the transactions as well as the execution of the promissory

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note. The defendant's case is that he had some transactions with Crown Kuries, of which the plaintiff

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was the Director. However, the entire transaction

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pertaining to that chitty has been settled by the defendant. The plaintiff concocted a promissory note and

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CRP 94/2015

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raised a fictitious claim. The allegation that

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Rs.10,000/- was repaid towards the transaction is also

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denied by the defendant. The petitioner had, in the

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suit, filed I.A.No.9402/2010 to sent the disputed promissory note for examination by a hand writing expert

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to establish that it was not executed by him. That

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application was, however, dismissed by the trial Court. After examination of the plaintiff and his witnesses as

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also the defendant, and relying on Exts.A1 to A4, the trial court vide judgment dated 18.10.2010 decreed the suit with cost for Rs.23,800/- with interest at the rate

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of 12% per annum from the date of the suit till the date

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of the decree and future interest at the rate of 6% from

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the date of decree till realisation.

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Challenging the said decree, the petitioner filed A.S.No.79/2011 before the District Court. Vide

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judgment dated 29.11.2014 the District Court dismissed the appeal. The petitioner is aggrieved by the dismissal

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of the appeal and has therefore come up on revision for setting aside the impugned judgments and the concurrent finding of the Courts below.

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CRP 94/2015

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The respondent was served, but none appears.

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Learned Counsel for the petitioner was heard.

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The main grounds taken up for revision are that there are contradictory versions of PW1 and PW2, witnesses examined by the plaintiff, regarding the nature of the transaction. It is pointed out that there is contraction regarding where the transaction took place. PW1 says that it was in his office. While in the proof affidavit filed by the PW2, it is stated that the promissory note in the possession of the defendant was signed by him and he has also admitted in the crossexamination that it was written by the defendant himself. The trial Court as well as the Appellate Court ignored

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these contradictory testimonies given by the two witnesses. That apart, I.A.No.9402/2010 filed by the petitioner ought to have been allowed by the trial Court, and not allowing that application has caused grave prejudice to the petitioner. The reasoning given by the Courts below are not acceptable and hence the learned Counsel for the petitioner submits that the Petition be allowed and the suit be dismissed.

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CRP 94/2015

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6. Ambadas Khanduji Shinde and Others v. Ashok

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Sadashiv Mamurkar and Others : 2017 KHC 6399 : 2017 (2) KHC SN 31 : 2017 (5) SCALE 271 : AIR 2017 SC 2527 : 2017

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(2) KLT SN 105 : 2017 (14) SCC 132, the Honourable Supreme Court has held thus:

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“The High Court cannot interfere with the concurrent factual findings while exercising jurisdiction under S.115 of the Civil Procedure Code. It is settled law that revisional jurisdiction of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate Courts. Under S.115 of the Civil Procedure Code, it is not open for the High Court to correct errors of facts or law unless they go to root of the issue of jurisdiction. In the facts on hand, the Courts below have passed reasoned orders well within the jurisdiction conferred upon them. We arrive at the conclusion that the High Court committed error in interfering with the judgment and decree of the Trial Court.”

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The judgments of both the trial Court as well as

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the Appellate Court in the instant case, are produced along with this Petition. The scope of a Revision

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Petition before this Court is very limited. No appeal is preferred, and therefore, the defendant in that suit has come up in Revision. But for entertaining a revision

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under Rule 115 of the C.P.C., it has to be established

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CRP 94/2015

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that the Subordinate Court has exercised the jurisdiction

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not vested in it by law or failed to exercise the jurisdiction so vested and acted in excess of the

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jurisdiction illegally or with material irregularity.

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There is absolutely no case made out by the

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petitioner to establish the aforesaid irregularities and hence, I find no reason, whatsoever, to interfere with the impugned judgment of the Additional District Court,

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Thrissur. Hence, the C.R.P. is dismissed. No costs.

Sd/-

ASHOK MENON

JUDGE

dkr

P.R.Nirmal v. T.G.Gopalakrishna Pai

Case brief

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P.R.Nirmal v. T.G.Gopalakrishna Pai

Case brief

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