Perikala Peturu vs Nelapati Rebbamma and Others

E. Dharma Rao, J.—This civil revision petition is directed against the order dated 19-7-1995 in Small Cause Suit No. 126 of 1991 passed by the learned Additional Subordinate Judge, Tenali, whereby the learned Subordinate Judge has dismissed the suit which was filed on promissory note Ex.A1 and Transfer Endorsement in favour of the plaintiff therein, dated 10-9-1981 on another pronote dated 16-10-1989 i.e., A2. While dismissing the suit the learned Subordinate Judge has observed that the plaintiff did not prove that the consideration was paid by him to late Prakasm under Exs.A1 and A6 i.e., promissory note dated 16-10-1989 (on which endorsement Ex.A2 was made). It is also held that though Expert Opinion is available on record, no reliance can be placed on it on the ground that the said opinion dated 12-4-1994 is not exhibited and the Expert who gave opinion is also not examined.

This order is attacked by the learned Counsel for the petitioner contending that the learned Judge ought to have seen that the promissory notes were executed by the deceased and the suit deserves to be allowed; that the signatures on Exs.A1 and A6 pronotes and the admitted signatures of late Nelapati Prakasam were sent to the Expert and the Expert has opined that they are one and the same and once the opinion of the Expert is available on record, it has to be considered as relevant piece of evidence and, therefore, the learned Subordinate Judge should have allowed the suit.

On the other hand the learned Counsel for the respondents contended that against dismissal of small cause suit, revision is not maintainable and right to appeal lies to the petitioner. It is also contended that in the absence of evidence of the Expert, any opinion given by him is of no evidentiary value and is inadmissible in evidence and, therefore, the revision is liable to be dismissed.

To appreciate these contentions of the parties, I have gone though the entire material placed on record. As stated earlier the small cause suit was filed based on two pronotes. Nelapati Prakasam, husband of the first defendant and father of defendants 2 to 5, borrowed an amount of Rs. 2000/- on 7-8-1989 from the plaintiff for meeting family expenses and executed a promissory note, Ex.A-1, agreeing to repay the sum with 24% interest per annum, he again borrowed another sum of Rs. 1500/- from one Yesubu, father of the plaintiff on 16-10-1989 for agricultural expenses and executed Ex.A2 pronote agreeing to repay the same with 24% interest per annum. The said Prakasm died on 19-7-1991 intestate without discharging pronotes debt. All the assets of the deceased devolved upon the defendants and they are in possession of the same. Hence, all the defendants are liable to discharge the amounts under the suit pronotes from the assets of the deceased. Later Ex.A6 is transferred on 10-9-1991 in favour of the plaintiff by his father, under Ex.A2 endorsement. When the suit amount was not paid by the legal heirs of the late Prakasam, notice was issued on 18-9-1991 and even after receipt of the notice, the respondents-defendants failed to pay the amount, petitioner filed the suit.

The second defendant filed written statement, which was adopted by the defendants 1, 3, 4 and 5th defendant remained exp parte. The defendants denied the various allegations made in the suit plaint and contended that during the lifetime of late Prakasam, there was no necessity for him to borrow the amounts under the alleged two pronotes and they must have been forged and brought into existence after the demise of Prakasam. It is further contended that the deceased never informed the same to the defendants during his lifetime. It is further denied that they have not inherited any property of late Prakasam. There is no cause of action for the suit and the suit is liable to be dismissed.

On the above pleadings, the Court below framed the following three issues for its consideration:

Whether late Nalapati Prakasam has obtained loan of Rs. 2000/- and Rs. 1500/- on 7-8-1989 and 16-10-1989 from the plaintiff and his father respectively for his family necessities and whether the defendants are liable to pay the same to the plaintiff?

Whether the plaintiff is entitled to recover the suit amount as prayed for? and

To what relief?

In support of the plaintiffs case, PWs.1 to 5 were examined and Exs.A1 to A6 were marked. On behalf of the defendants - respondents, DWs.1 to 5 were examined and no documents were marked.

According to the plaintiff, A1 pronote dated 7-8-1989 was executed by the deceased at the house of one Gayam Kotireddy of Valiveru village and at that time the deceased was also present; that Gayam Kotireddy read over the contents to the deceased and the deceased signed on the pronote and then the plaintiff PW1 paid the amount to Kotireddy who passed on the same to the deceased. The scribe Kotireddy signed on the pronote and handed it over to WP1 asking him to get some witnesses, then the deceased went out and found DWs.3 and 5 near rice mill and requested them to attest the pronote. When they questioned, he informed that he borrowed a sum of Rs. 2000/- and has received the amount. Then DWs.3 and 5 have attested the pronote, Ex.A1. It is further stated that in the year, 1989, the deceased borrowed Rs. 1500/- from father of PW1 and executed pronote Ex.A6 in his favour and the same was transferred in favour of PW1 on 10-9-1991. The peculiar feature of his case is that the attestors of Ex.A1 have not come to give evidence in his favour. One Merugamaia Abraham attested Ex.A6 and he also did not give evidence, because he was also afraid of the defendants. As stated earlier, the attestors of Ex.A1 were examined as DWs 3 and 5.

On the basis of evidence of PW1 to 5 and DWs.3 to 5, the Court held that admittedly in both the cases, the signatures of the attestors were obtained subsequently and DW5 stated that he signed two months after the death of the deceased on Ex.A1. There are contradictions in the evidence of PWs.1 and 2. DW3 deposed that he knows late Prakasam who died in 1991. He stated that they never approached him at any time in connection with obtaining loan of Rs. 2000/- and fie never signed on the pro- note and the defendants never threatened him not to support the claim of the petitioner. DW4 another attestor of Ex.A6 deposed that he did not sign on the pronote Ex.A6 and after seeing P,x.A6 this witness denied his signature. DW5 deposed that he did not attest Ex.A1 with DW3 and further stated that two months after the death of Prakasam, he signed on the pronote at the instance of PW1 at the house of PW1 himself and he never enquired about the debt. Therefore, on the basis of the evidence of DWs,3, 4 and 5, who are attestors of Exs.A 1 and A6 have not supported the case of the plaintiff and in the absence of any cogent evidence let in on behalf of the plaintiff, the Court below held that the plaintiff has failed to prove that consideration was passed on to late Prakasam under Exs.A1 and A6.

On the second issue, with regard to the transfer of Ex.A6 under Ex.A2 in favour of PW1 by his father, the reasoning given by the plaintiff that due to old age he is unable to attend the Court, the pro-note was transferred, was not believed by the Court below on the ground that PW2 entered into the witness box and gave evidence. Therefore, disbelieved the said plea.

On requisition from the plaintiff, the signatures on pronotes. Exs.A1 and A6 and the admitted signatures of the late Nelapati Prakasam were sent to Handwriting Expert, who opined that the signatures appearing on Exs.A1 and A6 and the admitted signatures of late Prakasam are one and the same. The report, dated 12-4-1994 is neither marked nor the Expert was examined. In those circumstances, having regard to the decision of Allahabad High Court in Balkrishna Das Agarwal Vs. Smt. Radha Devi and Others, , wherein it was held that

"....the Expert has to be examined and his competency as Expert must be established and he should be subjected to cross- examination and the Expert''s report is not straightaway admissible without examining him. Of all kinds of evidence which are admissible, the opinion is of the weakest kind."

the Court below did not consider the opinion of the Expert and dismissed the suit.

Dealing with analogous question, a learned single Judge of this Court in Sher Mohammad v. Ali Khan 1991 (2) APLJ 335 (HC), on a dismissal of the suit based on promissory note below Rs. 3000/- and which is of a small cause nature, Now it is Rs. 10,000/- as per amendment Act of 1999, held revision to High Court is not maintainable and appeal lies u/s 96(4) of the Code as appeal involves question of law.

In that case, the suit based on promissory note which was said to have been executed by the defendant for Rs. 2,628/- was dismissed by the learned II Additional District Munsif, Vijayawada. The suit was of a small cause nature and the value of the suit, as stated earlier, was below Rs. 3000/-. Having regard to the said fact, the learned single Judge held that the plaintiff had right to appeal u/s 96(4) to the appellate Court provided the appeal involves question of law.

As seen from the facts and circumstances of this case, no question of law is involved. The petitioner also failed to raise any substantial question of law. Therefore, applying the principle laid down in Sher Mohammad''s case, I am of the considered view that only appeal lies u/s 96(4) of the Code and revision is not maintainable.

That apart, the Supreme Court in a decision Murarilal v. State of Madhya Pradesh AIR 1980 SC 531, dealing with Expert''s opinion, under Sections 45, 46, 73 and Section 114 of the Evidence Act has held as under:

"......We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of handwriting Expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases, where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting Expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with the Subordinate Courts and sentences torn out of context from the judgments of this Court are often flaunted....."

Applying the ratio laid down by the Apex Court in the above decision to the facts and circumstances of the case, on hand, in this case except the self serving testimony of the plaintiff himself, no witness, even his own witnesses did not support his case and they denied their signatures and they also denied with regard to the payment of consideration to late Nalapati Prakasam. Having regard to these circumstances, the Court below was satisfied on consideration of Expert opinion along with all other relevant evidence of DWs.3, 4 and 5 that the plaintiff has failed to prove that late Prakasam has received the consideration on execution of the pronotes and was also not satisfied with the reasons of transfer of Ex.A6 under Ex.A2 in favour of the plaintiff by his father. Therefore, the Court below was right in rejecting the suit of the plaintiff in the absence of the evidence of the Expert and even the opinion evidence of the Expert was also not exhibited.

As seen above, on both the grounds, the civil revision petition is devoid of merits and is liable to be dismissed and is accordingly dismissed. No order as to costs