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Judgment
A.N. Venugopala Gowda, J.—The appellant/plaintiff filed O.S. No. 157/2004 on the file of the learned Civil Judge (Sr. Dn.), Harihar,
against the respondent/defendant on 26.11.2004, to pass a decree for recovery of a sum of Rs. 97,525/- with interest and costs. It was stated that
the defendant borrowed Rs. 83,000/- for agricultural purposes as well as for his hospital expenses and agreed to repay the same with interest at
the rate of 2% p.m., and executed a promissory note and in spite of repeated requests and demands, the defendant did not repay the loan amount.
In response to the suit summons, the defendant has appeared and filed written statement inter alia contending that he never borrowed any amount
from the plaintiff nor executed any documents in favour of the plaintiff and that a stamp paper of Rs. 20/- in the name of the defendant has been
managed by the plaintiff which is alleged to have been bought from State Bank of Mysore, Davanagere on 23.01.2004 and has got cooked up a
document by making forged signature of him as well as his father H. Basappa. It was further contended that he has no acquaintance with the
plaintiff and there was no occasion for him to borrow loan from the plaintiff. He prayed for dismissal of the suit with costs.
The Trial Court raised four issues. During trial, the plaintiff got himself examined as PW-1 and marked Exs. P1 & P2. Defendant got himself
examined as DW-1. There was no cross-examination of DW-1. Learned Trial Judge considering the record of the suit, answered issue Nos. 1 &
3 in the negative and issue No. 2 in the affirmative and as a result, the suit was dismissed by directing the parties to bear their own costs. This
appeal is directed against the said Judgment and Decree.
Sri H.C. Shivaramu, learned advocate for the appellant, firstly submitted that from 28.11.2005 to 05.12.2005, the counsel for the plaintiff was
engaged in the marriage ceremony and was not able to attend the Court and the plaintiff was advised to contact the advocate on 06.12.2005, to
take steps to examine a witness and in the meantime, learned Trial Judge without giving reasonable opportunity to the plaintiff, passed an order
dated 29.11.2005 closing the evidence of plaintiff and on 02.12.2005 after receiving the affidavit evidence of the defendant, posted the matter for
hearing of arguments and that the suit has been decided on 05.12.2005, without providing reasonable opportunity to the plaintiff. He submitted that
learned Trial Judge has failed to grant reasonable opportunity to the plaintiff to cross-examine the defendant. Secondly, the finding that the plaintiff
has failed to prove execution of promissory note Ex. P1 and the signature of the defendant and his father has been managed by the plaintiff is
wholly erroneous and is nothing but a surmise and conjecture. He submitted that learned Trial Judge has failed to even compare the admitted
signatures of the defendant found on the written statement, the vakalath and deposition, with that of the signatures appearing on Ex. P1 which tally
with that of the signatures of the defendant found on Ex. P1 and hence, there is no lawful consideration and appreciation of the material evidence
available on record. Thirdly, in view of denial of reasonable opportunity, the plaintiff could not lead further evidence. Learned counsel referred to a
sale deed dated 05.03.2001, produced along with Misc. Cvl. No. 1563/2010, filed under Order 41 Rule 27 read with S. 151 CPC, to receive
further evidence. He submitted that the plaintiff executed a sale deed dated 05.03.2001, whereunder he sold 3 acres of land to one
Parameshwarappa for a sum of Rs. 1,35,000/- and out of the said amount, the plaintiff advanced the loan to the respondent by obtaining the
promissory note Ex. P1. Learned counsel submitted that in view of the denial of reasonable opportunity to adduce evidence as well denial of
opportunity to cross-examine DW-1, there is miscarriage of justice and the impugned Judgment being vitiated is unsustainable.
Sri Vishwajith Shetty, learned advocate appearing for the respondent, on the other hand contended that the plaintiff''s claim as put forth in the
plaint was contested by filing written statement and based on the pleadings, issues were raised and the plaintiff chose to close his case by examining
himself as PW-1 and producing a promissory note and an RTC extract. Learned counsel submitted that the defendant-DW-1, was not cross-
examined and his evidence having remained unchallenged, learned Trial Judge, upon appreciation of the material on record has rightly dismissed the
suit, since the plaintiff failed to prove the alleged loan transaction and sought dismissal of the suit.
Perused the record of the suit.
In view of the rival contentions, point for consideration is, whether there is denial of reasonable opportunity to the plaintiff by the learned Trial
Judge and whether the impugned Judgment and Decree are vitiated?
Suit was filed on 26.11.2004, to pass a decree for recovery of money. Written statement was filed on 04.02.2005. Issues were framed on
18.03.2005. Plaintiff filed affidavit in lieu of examination in chief and got himself examined as PW-1 on 09.08.2005. Exs. P1 & P2 were marked
on 19.08.2005. PW-1 was cross-examined on 18.11.2005 and the suit was adjourned for further evidence of the plaintiff to 29.11.2005. On the
adjourned date, the plaintiff and his advocate were absent and hence, his side of evidence was closed and the suit was adjourned for defendant''s
evidence to 01.12.2005. The defendant having prayed for time, suit was adjourned to 02.12.2005, on which date, affidavit in lieu of examination in
chief of defendant was filed and he got himself examined as DW-1. His evidence was closed and the suit was adjourned for hearing of arguments
to 03.12.2005. The plaintiff and his advocate have remained absent which is clear from the entry in the Order Sheet dated 03.12.2005. Written
arguments of defendant having been filed, the suit was adjourned for pronouncement of Judgment to 05.12.2005. The Judgment was pronounced
and the suit was dismissed on 05.12.2005.
From the sequence of events noticed supra, it is clear that the Trial Court has not granted reasonable opportunity to the plaintiff to lead further
evidence nor cross-examine the defendant-DW-1. The observation in para 6 of the impugned Judgments that arguments of both counsel was
heard is contrary to the entry in the Order Sheet dated 03.12.2005 which is reproduced below:
In this appeal, the appellant has filed Misc. Cvl. No. 1563/2010, seeking permission to produce as additional evidence, a sale deed dated
05.03.2001. Since there is denial of reasonable opportunity to the plaintiff by the learned Trial Judge, the said document is required to be
considered in the suit. On account of the denial of reasonable opportunity to the appellant-plaintiff, the impugned Judgment and Decree are vitiated
and hence, unsustainable.
In the result, appeal is allowed and the impugned Judgment and Decree is set aside. The suit is remanded to the Trial Court to proceed further
from the stage at which it was pending as on 29.11.2005. Both the parties are directed to appear before the Trial Court on 08.07.2013 and
receive further orders without waiting for a Court notice.
The Trial Court shall decide the suit expeditiously and before 30.11.2013. Contentions of both parties are kept open for consideration by the
learned Trial Judge.
Refund to the appellant, half the court fee paid on the appeal memorandum.
Parties are directed to bear their respective costs.