Plaint is returned.-How the suit for the entire schedule of property Ac.5-30 guntas is maintainable, when the Agreement of Sale is for Ac.2-00 guntas and another receipt is for Ac.2-00 guntas. = the agreement of sale is executed to an extent of Ac.2.00 in Sy.No.6, and clause no.4 in the agreement of is pertaining to remaining portion of his land i.e. 3.30 gts in Sy.No.4 and the 1st party assures second party after completion of sale transaction under agreement of sale dt.17/2/2015 only the future transaction takes place. Therefore suit is not maintainable to the entire extent of Ac.5.20 gts and it is maintainable to extent of Ac.2.00 only in Sy.No.6 only. Hence counsel is directed to restricted his prayer to the extent of two acres only. Aggrieved by the direction to restrict his suit prayer as a condition precedent for entertainment of the suit, the petitioner-plaintiff is before this Court.= In the aforestated scheme, there is no power vesting in the trial Court at the time of registration of the suit to venture into the merits of the matter or possible disputed issues. In the present case, the objection raised by the office of the trial Court, which was thereafter sustained by the trial Court, is that the suit prayer relates to a larger extent than can be claimed by the petitioner-plaintiff as per the suit agreement. This is not an issue which could have been gone into by the trial Court at the time of registration of the plaint. It is for the petitioner-plaintiff to demonstrate before the trial Court during the suit proceedings as to how he is entitled to such relief. When he valued the property in question fully and properly and paid requisite Court fee thereon, the trial Court had no power to determine as to the extent of relief that could be claimed by him at the very threshold and require him to amend his suit prayer accordingly. It may be noticed that it is not the case of the trial Court that the plaint did not disclose any cause of action whereby it could have rejected the plaint under Order 7 Rule 11 CPC. In fact, it did not even do so. It merely returned the plaint requiring the petitioner-plaintiff to restrict his prayer to a lesser extent. The order dated 12.04.2018 passed by the trial Court to this effect is therefore unsustainable in law and is accordingly set aside. The trial Court is directed to examine the plaint presented by the plaintiff only in the context of the parameters prescribed in the Code of Civil Procedure, 1908, and the Civil Rules of Practice and if it is found to be in order, register the same as per Rule 23 of the Civil Rules of Practice.

THE HONBLE SRI JUSTICE SANJAY KUMAR       

CIVIL REVISION PETITION NO.2523 OF 2018   

25-04-2018

Mir Firasath Ali Khan .. Petitioner

Sayeeduddin Zafar.. Respondent


Counsel for petitioner:  Sri D. Vijaya Kumar

Counsel for respondent:  --

<Gist:

>Head Note:   


? CASES REFERRED:     

--

THE HONBLE SRI JUSTICE SANJAY KUMAR       
CIVIL REVISION PETITION NO.2523 OF 2018   

O R D E R

        The petitioner in this civil revision petition is the plaintiff in
OS SR No.887 of 2018 on the file of the learned XII Additional District and
Sessions Judge, Ranga Reddy at Vikarabad. The said suit was filed with
the following prayer:
i)     Directing the defendant to execute and register a sale deed
        in favour of the plaintiff in respect of the suit schedule
        property i.e., land admeasuring Ac.3-30 guntas in Sy.No.4
        and land admeasuring Ac.2-00 guntas in Sy.No.6 total
        admeasuring Ac.5-30 guntas situated at one Compact at 
        Shaipur Village under the Limits of Tandur Municipality,
        Tandur Mandal, R.R.District (presently Vikarabad District),
        which is more fully described in the plaint schedule.

ii)     And in the event the defendant failed to execute and register
the sale deed in favour of the plaintiff in respect of the suit
schedule property, this Honble Court may be pleased to
execute and register the sale deed in favour of the plaintiff
and put the plaintiff in possession of the suit schedule
property.

iii)    To award the costs of the suit, and
iv)     To any other relief or reliefs for which the plaintiffs entitled
to may also be awarded in the circumstances of the case
and interest of justice.


        The office of the trial Court raised an objection on 04.04.2018,
which reads as under:
C.F.R.No.        of 2018 dated 4-4-2018
      This is a suit file under section 26 order 7 rule 1 and 2 C.P.C,
suit for specific performance in respect of land bearing Sy.Nos.4,
extent Ac.3-30, in survey number 6 extent Ac.2-00 situated at
Saipur village of Tandur Mandal as per the agreement of sale dated
17-2-2015
      The agreement of sale dated 17-2-2015 is executed only for
an extent of Ac.2-00 in survey number 6 situated at Shaipur village,
but the plaintiff praying to this Court for directions to the
defendants to execute registered sale deed in favour of the plaintiff
to an extent of Ac.5-30 guntas in Sy.No.4 and 6.

      How the suit is maintainable for claiming Ac.5-30 guntas
against the agreement of sale dated 17-2-2015 filed in this suit.

      Hence the Plaint is returned.
      SFO
      Returned. Time (7) days.

        Thereupon, the petitioner-plaintiff re-submitted the suit stating as
follows:
Objections complied herewith. Hence resubmitted.
4-4-2018
      The suit is filed for specific performance as per the
agreement of sale dated 17-2-2015 and as per clause No.4 of
agreement of sale he agreed to sale his other property covered
with Memorandum of Conformation of Oral Hiba dated February 
2015 and executed on 18/04/2015 for remaining land of the
defendant.

      Hence the suit is maintainable as per the agreement and
receipt.

      Hence resubmitting.
      Sd/-
      04/04/2018

      The office however opined that the objections required to be heard
on two points:
(1) The point of limitation

(2) How the suit for the entire schedule of property Ac.5-30 guntas
is maintainable, when the Agreement of Sale is for Ac.2-00 guntas
and another receipt is for Ac.2-00 guntas.


      The matter was accordingly directed to be posted for hearing on
the Bench and, by order dated 12.04.2018, the trial Court returned the
suit stating as under:
Heard the counsel for plff, the agreement of sale is executed to an
extent of Ac.2.00 in Sy.No.6, and clause no.4 in the agreement of
is pertaining to remaining portion of his land i.e. 3.30 gts in
Sy.No.4 and the 1st party assures second party after completion of
sale transaction under agreement of sale dt.17/2/2015 only the
future transaction takes place. Therefore suit is not maintainable to
the entire extent of Ac.5.20 gts and it is maintainable to extent of
Ac.2.00 only in Sy.No.6 only. Hence counsel is directed to restricted
his prayer to the extent of two acres only.

      Aggrieved by the direction to restrict his suit prayer as a condition
precedent for entertainment of the suit, the petitioner-plaintiff is before
this Court.
      Section 26 CPC deals with institution of suits and states that every
suit shall be instituted by the presentation of a plaint and that, in every
plaint, facts shall be proved by affidavit. Order 7 CPC deals with the plaint.
Order 7 Rule 1 details the particulars to be contained in the plaint. Order 7
Rule 7 requires the relief sought to be specifically stated in the plaint.
Order 7 Rule 10 CPC deals with the return of the plaint at any stage if it
has been presented before the wrong Court. Order 7 Rule 11 details the
situations where the plaint can be rejected by the trial Court. This Court,
in exercise of its power under Article 227 of the Constitution and Section
126 CPC, framed the Andhra Pradesh Civil Rules of Practice and Circular
Orders 1980 (hereinafter, The Civil Rules of Practice). Chapter II of the
Civil Rules of Practice deals with the Form of Proceedings. Rule 8 therein
deals with the form of the plaint etc. Rule 9 speaks of the cause title of
the plaint etc. Rule 10 deals with the names etc. of the parties. Rule 11
deals with address for service. Rule 12 deals with suits by or against
numerous parties. Rule 14 deals with proceedings in respect of immovable
property and reads as under:
Proceedings in respect of immovable property:-

      Every plaint, original petition and memorandum of appeal, in
which relief is sought with respect to immovable property, shall
state, as part of the description thereof the registration district,
sub-district, the name of the village, Municipality or Corporation in
which the property is situate, the survey number of the house
number, if any, the market value of the property and the value for
purpose of court-fee and jurisdiction as computed according to the
provisions of the Andhra Court Fees and Suits Valuation Act, 1956
and in cases where the court-fee payable on the rental value, the
annual rental value of the property for which it is let, and there
shall be annexed thereto a statement duly filled in and signed by
the party of the particulars mentioned in Form No.8. In the
absence of the said particulars, the proceedings may be received
but shall not be admitted or filed until the provisions of this rule
have been complied with.


      Rule 16 deals with the list of documents to be filed along with the
plaint. Rule 20 deals with the presentation of proceedings and reads as
under:
        20. Presentation of Proceedings:-

        (1) All plaints, written statements, applications, and other
proceedings and documents may be presented to or filed in court
by delivering the same by the party in person or by his recognised
agent or by his Advocate or by a duly registered clerk of the
Advocate to the Chief Ministerial Officer of the Court or such other
officers as may be designated for the purpose by the Judge before
4.00 p.m. on any working day. Provided that in case where the
limitation expires on the same day they may be received by a
Judge even after 4.00 P.M.

        (2) The Officer to whom such documents were presented 
shall at once endorse on the documents the date of presentation,
the value of the stamp fixed, and if the proceedings, are thereby
instituted, shall insert the serial number.

        (3) In case of paper bearing court fee stamps, he shall, if
required issue a receipt in form No.17 in Appendix III-L to these
rules.

        (4) Every plaint or proceeding presented to or filed in court
shall be accompanied by as many copies on plain paper of the
plaint or proceeding and the document referred to in Rule 16, as
there are defendants or respondents unless the court otherwise
dispenses with such copies of the documents by reason of their
length or for any other sufficient reason.

      Rule 23 states that where, upon examination, the plaint is found to
be in order, it shall be entered in the register of suits, and the Judge shall
pass orders as to the issue of summons or otherwise.
      In the aforestated scheme, there is no power vesting in the trial
Court at the time of registration of the suit to venture into the merits of
the matter or possible disputed issues. In the present case, the objection
raised by the office of the trial Court, which was thereafter sustained by
the trial Court, is that the suit prayer relates to a larger extent than can be
claimed by the petitioner-plaintiff as per the suit agreement. This is not an
issue which could have been gone into by the trial Court at the time of
registration of the plaint. It is for the petitioner-plaintiff to demonstrate
before the trial Court during the suit proceedings as to how he is entitled
to such relief. When he valued the property in question fully and properly
and paid requisite Court fee thereon, the trial Court had no power to
determine as to the extent of relief that could be claimed by him at the
very threshold and require him to amend his suit prayer accordingly.
      It may be noticed that it is not the case of the trial Court that the
plaint did not disclose any cause of action whereby it could have rejected
the plaint under Order 7 Rule 11 CPC. In fact, it did not even do so. It
merely returned the plaint requiring the petitioner-plaintiff to restrict his
prayer to a lesser extent.
      The order dated 12.04.2018 passed by the trial Court to this effect
is therefore unsustainable in law and is accordingly set aside. The trial
Court is directed to examine the plaint presented by the plaintiff only in
the context of the parameters prescribed in the Code of Civil Procedure,
1908, and the Civil Rules of Practice and if it is found to be in order,
register the same as per Rule 23 of the Civil Rules of Practice.
      The civil revision petition is accordingly allowed. Pending
miscellaneous petitions, if any, shall also stand closed.  No costs.
________________ 
SANJAY KUMAR, J   
25th APRIL, 2018

In the instant case, admittedly the Written Statement was filed by the respondent/plaintiff in answer to the counter claim of the petitioners on 18-11-2016, nine years after such counter claim had been filed by the petitioners on 05-07-2018.=The Supreme Court had permitted extension of time beyond 90 days only in exceptionally hard cases. In the present case, the negligence of the respondent or his counsel in reading the Written Statement-cum- counter claim of petitioners and consequently failing to file his response cannot bring the case of the respondent in the category of an exceptionally hard case. By such erroneous exercise of jurisdiction, the Court below had practically nullified the period fixed by Order VIII Rule 1 CPC. Therefore, the Civil Revision Petition is allowed; order dt.12-10-2017 in I.A.No.101 of 2017 in O.S.No.290 of 2017 of the Principal Junior Civil Judge, Punganur, is set aside; and the said I.A. is allowed and the Written Statement filed by the respondent/plaintiff in answer to the counter claim of the petitioners is struck off the record and shall not be considered for any purpose.

THE HONBLE SRI JUSTICE M.S. RAMACHANDRA RAO           

C.R.P.No.6712 of 2017

23-04-2018

Y.Venkata Ramana and two others....Petitioners

Yellaboyani Venkatamma @ Y.Munivenkatamma..Respondents.       

Counsel for the petitioners: Sri V.Nitesh

Counsel for the respondent :Sri Gade Venkateswara Rao 


<GIST:

>HEAD NOTE:   


? Cases referred

(2005) 6 S.C.C. 344

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO           
C.R.P.No.6712 of 2017
ORDER: 
       
        This Revision Petition is filed by the petitioners under Article
227 of the Constitution of India challenging the order dt.12-10-2017
in I.A.No.101 of 2017 in O.S.No.290 of 2007 of the Principal Junior
Civil Judge, Punganur, Chittoor District.
    2.  The petitioners are defendants in the suit.
    3.  The said suit was filed by the respondent declaring that a
decree in respect of item-8 of O.S.No.178 of 1997 passed by the said
Court in I.ANo.1094 of 2003 on 12-02-2007 is not binding on the
respondent and for injunction restraining the petitioners from
interfering in any way with the peaceful possession and enjoyment of
the plaint schedule properties.
    4.  The said suit was filed on 05-11-2007.  The petitioners
herein filed a Written Statement raising counter claim on 05-07-2008.
    5.    The respondent/plaintiff did not immediately file any
Written Statement to the said counter claim made by the petitioners.
    6.  After lapse of nine years, on 18-11-2016, without
permission of the Court, the respondent/plaintiff filed Written
Statement to the petitioners counter claim.
    7.    After the trial commenced in 2017, when the matter was
coming up for marking of documents and cross examination of P.W.1,
the petitioners/defendants filed I.A.No.101 of 2017 invoking Order
VIII Rules 6-A (3) and  6-G and Section 151 CPC praying the Court
to reject the Written Statement of the respondent/plaintiff filed in
answer to the counter claim of the petitioners/defendants without
leave of the Court.
    8.  In the affidavit filed in support of the said application,
they contended that the respondent having remained silent after the
filing of the counter claim by the petitioners, filed his answer to the
counter claim by way of Written Statement on 18-11-2016 along with
her chief examination affidavit without the leave of the Court and the
same is liable to be rejected since the rules relating to Written
Statement filed by a defendant shall apply to a Written Statement filed
by a plaintiff in answer to a counter claim made by the defendant.
    9.  Counter was filed by the respondent opposing this
application stating that copy of the Written Statement had not been
supplied to her; contents of the Written Statement filed by the
petitioners were not gone through by her counsel; and when the
respondent was preparing chief examination affidavit, she came to
know that the petitioners had filed counter claim; thereafter at the
request and also with the permission of the Court, she had filed
Written Statement answering counter claim filed by the petitioners
along with chief examination affidavit and document.  She contended
that even during the marking of the documents, neither the petitioners
nor their counsel raised any objection in respect of filing of the
Written Statement by the respondent to the counter claim raised by the
petitioners and that the said application I.A.No.101 of 2017 was filed
only to protract the proceedings.
    10. By order dt.12-10-2017, the Court below dismissed the
said application.  It observed that counter claim had been filed on
05-07-2008 by the petitioners and the respondent had stated in his
affidavit in the I.A. that copy of the Written Statement filed by the
petitioners had not been supplied to her; and though the respondent
did not take any permission of the Court, as per Order VIII Rule 6-A
(3) of the CPC, the respondent was at liberty to file Written Statement
in answer to the counter claim of the petitioners within such period as
may be fixed by the Court.  It held that the petitioners did not take any
objection at the time of filing of the Written Statement by the
respondent to the counter claim which was filed on 18-11-2016, that
later, the matter was posted for trial from time to time, and once the
Written Statement and counter claim filed by the petitioners are on
record, it is the duty of the respondent to file Written Statement in
answer to the counter claim.  It observed that if at all there is any
grievance with regard to the title between the respondent and
petitioners, they can contest the suit by examining the witnesses and
by placing necessary documents. 
    11. Assailing the same, petitioners have filed this Revision
Petition.
    12. Heard Sri V.Nitesh, learned counsel for the petitioners
and Sri Gade Venkateswara Rao, learned counsel for the respondent.
    13. Learned counsel for the petitioners contended that the
provisions relating to filing of a Written Statement are made
applicable by order VII Rule 6-G to the filing of the Written
Statement in answer to a counter claim by a plaintiff also; that as per
proviso to Order VIII Rule 1, Written Statement had to be filed within
30 days unless the defendant is allowed to file the same on such other
day as may be specified by the Court for reasons to be recorded in
writing, but even such period shall not be later than 90 days from the
date of service of summons; and merely because at the time when the
respondent/plaintiff filed his Written Statement in answer to the
counter claim of the petitioners, no objection had been raised
specifically by the petitioners, the duty of the Court to record reasons
while receiving it when it is filed with a delay of nine years cannot be
abdicated by it; and the Court cannot absolve itself of such
responsibility particularly when such inordinate delay is there on the
part of respondent/plaintiff to file the Written Statement in answer to
the counter claim of the petitioners.  He pointed out that even the
Court below had recorded a finding that the respondent/plaintiffs
counsel had received copies of the Written Statement and the plea of
the respondent/plaintiff that she was not supplied with copy of the
Written Statement-cum-counter claim is incorrect; and in such
circumstances, the exercise of jurisdiction by the Court below in
refusing to entertain the objection raised by the petitioners is
unsustainable. He contended that the Court below had failed to
exercise jurisdiction vested in it by law by refusing to reject the
Written Statement filed by respondent in answer to the counter claim
made by the petitioners.
    14. Learned counsel for the respondent however refuted the
said contentions.  He stated that since no objection had been raised at
the time of filing of the Written Statement by the respondent on
18-11-2016 to the counter claim made by the petitioners, the
petitioners are deemed to have waived any such objection and the
order passed by the Court below is correct.
    15. I have noted the contentions of the parties.
    16. From the facts narrated above, it is clear that the
petitioners, who are defendants in the suit, had filed Written
Statement-cum-counter claim on 05-07-2008. Nine years later, on
18-11-2016, without seeking permission of the Court, the
respondent/plaintiff filed his Written Statement in answer to the said
counter claim.
    17. The question is whether the court below had rightly
exercised its discretion in dismissing petitioners application to reject
the said Written Statement filed by the respondent to the counter claim
by the petitioners or not?
    18. Order VIII Rule 6 (A) permits a defendant, in addition to
his right of pleading a set-off under Rule 6, to raise by way of counter
claim against the claim of the plaintiff, any right or claim in respect of
cause of action accruing to the him against the plaintiff either or after
the filing of the suit.  However, he is required to file the counter claim
before he delivered his defence or before the time limited for
delivering his defence has expired.
    19.  Order VIII Rule 6-G makes applicable the rules relating
to a Written Statement by a defendant to apply to a Written Statement
filed by the plaintiff in answer to a counter claim.
    20. Therefore Order VIII Rule 1 CPC is applicable to the
respondent/plaintiff.  It states:
      R.1. Written Statement:- The defendant shall, within
thirty days from the date of service of summons onlhim, present
a Written Statement of his defence:
      Provided that where the defendant fails to file the
written statement within the said period of thirty days, he shall
be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing,
but which shall not be later than ninety days from the date of
service of summons.
    21. This provision has been interrupted by the Supreme
Court in Salem Advocate Bar Association, T.N. Vs. Union of
India .  The Supreme Court held that though a Written Statement had
to be filed within 30 days as per Act 46 of 1999, the rigour of this
provision was reduced by Amendment Act 22 of 2002 which enabled 
the Court to extend the time for filing Written Statement on recording
sufficient reasons therefor, but the extension can be maximum of 90
days.  It also considered the question whether the Court has any power
or jurisdiction to extend the period beyond 90 days.  It held that
though maximum period of 90 days to file the Written Statement had
been provided, consequences on failure to file Written Statement
within the said period had not been provided for in Order VII Rule 1
CPC; that the provision in Order VIII Rule 1 providing that the higher
limit of 90 days to file Written Statement is directory, but however
added that the order extending time to file Written Statement cannot
be made in a routine manner, and time can be extended only in
exceptionally hard cases.  It held that while extending time, it has to
be borne in mind that the Legislature has fixed the time limit of 90
days and the discretion of the Court to extend the time shall not be
frequently and routinely exercised so as to nullify the time fixed under
Order VIII Rule 1 CPC.
    22. In the instant case, admittedly the Written Statement was
filed by the respondent/plaintiff in answer to the counter claim of the
petitioners on 18-11-2016, nine years after such counter claim had
been filed by the petitioners on 05-07-2018.
    23. As per Order VIII Rule 1 CPC, such Written Statement
ought to have been filed by the respondent within 30 days from the
date of receipt of the Written Statement-cum- counter claim of the
petitioners.
    24.  As per the proviso to Rule 1 of Order VIII, the Court
normally had power to extend the time for filing such Written
Statement by the respondent to the counter claim made by the
petitioners only for a period not later than 90 days, that too for reasons
to be recorded in writing.
    25.  For such reasons to be recorded in writing, the
respondent/plaintiff should have filed an application seeking
permission of the Court to file such Written Statement in answer to
the counter claim of the petitioners beyond the period of 30 days.
    26. Admittedly he did not do so.  The fact that the respondent
did not do so and the petitioners did not object at the time of filing
such Written Statement in answer to the counter claim, in my
considered opinion, cannot absolve the Court below of its duty to
record reasons in writing why it received the Written Statement filed
by the respondent in answer to the counter claim of the petitioners
beyond the period of 30 days.  Admittedly no such reasons have been
recorded by the Court below.
    27. Also the only reason assigned by the respondent is that
he could not file the Written Statement in answer to the counter claim
of the petitioners within time was that copy of the Written Statement-
cum- counter claim had not been supplied to his counsel. Even the
Court below found this excuse to be incorrect on verifying the record.
    28. Once this is so, no indulgence could have been shown by
the Court below to allow respondents Written Statement in answer to
the counter claim made by the petitioners and it ought to have rejected
the same by allowing the application filed by the petitioners. But it
had allowed the Written Statement filed by the respondent in answer
to the counter claim to remain on record, as a matter of routine, which
the Supreme Court in the above case said  cannot be done.
    29. The Supreme Court had permitted extension of time
beyond 90 days only in exceptionally hard cases. In the present case,
the negligence of the respondent or his counsel in reading the Written
Statement-cum- counter claim of petitioners and consequently failing
to file his response cannot bring the case of the respondent in the
category of an exceptionally hard case.  By such erroneous exercise of
jurisdiction, the Court below had practically nullified the period fixed
by Order VIII Rule 1 CPC.
    30. Therefore, the Civil Revision Petition is allowed; order
dt.12-10-2017 in I.A.No.101 of 2017 in O.S.No.290 of 2017 of the
Principal Junior Civil Judge, Punganur, is set aside; and the said I.A.
is allowed and the Written Statement filed by the respondent/plaintiff
in answer to the counter claim of the petitioners is struck off the
record and shall not be considered for any purpose.  No costs.
    31. As a sequel, the miscellaneous petitions, if any pending,
shall stand closed.
_________________________________     
JUSTICE M.S.RAMACHANDRA RAO       
Date: 23-04-2018

The plaintiff though stated his readiness and willingness to perform the essential terms of the contract did not produce any proof to show his readiness. ? = In the present case, the plaintiff contributed his share of the advance sale consideration at the time of Ex.A.1, agreement of sale, followed by payment of Rs.50,000/- on 12.08.1985, which was accepted by the first defendant. In the evidence of D.W.1, a suggestion was made stating that the plaintiff had Acs.20.00 of dry land and Acs.4.00 of wet land and was getting the yield of 200 bags of paddy and 200 bags of groundnut and earning Rs.1,00,000/- to Rs.1,50,000/- at the time of Ex.A.1. Another suggestion was also put to him stating that right from the beginning, the plaintiff was ready and willing to perform his part and get a valid sale deed executed, but the first defendant was evading the same. The refusal of the notice issued by the plaintiff on 24.09.1987 asking the defendants to receive the balance sale consideration and execute a registered sale deed clearly indicates the readiness and willingness of the plaintiff. This was further supported by deposit of balance sale consideration in the Court at the time of filing the suit. Hence, the decisions relied on by the learned counsel for the appellants are not applicable to the facts of the present case though there cannot be any dispute on the point of law.

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO           

APPEAL SUIT No.1224 OF 1999   

20.04.2018

P.V.Chowdary (died), And others..Appellants

Lingala Narasanna (died), And others..Respondents 


Counsel for the appellants          :  Sri O.Manohar Reddy

Counsel for the Respondents    :  Sri D.Jagan Mohan Reddy


<Gist :
       
>Head Note :

? Cases referred

1.      (2002) 9 SCC 582
2.      (2003) 10 SCC 390
3.      (2013) 15 SCC 27
4.      (2015) 8 SCC 695
5.      2017 (3) ALD 573 (DB)
6.      (2000) 6 SCC 420
7.      (2006) 5 SCC 340
8.      (2009) 5 SCC 182



THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO           
APPEAL SUIT No.1224 OF 1999   

JUDGMENT:     
      The unsuccessful defendants in O.S.No.72 of 1997 on the file of the
Court of the Senior Civil Judge, Penukonda preferred the present Appeal. The
respondent herein, who is the plaintiff in the said suit, filed the suit for specific
performance of agreement of sale dated 16.03.1985 executed by the first
defendant in favour of the plaintiff and two others to the extent of share of the
plaintiff and for delivery of possession or in the alternative for recovery of
Rs.1,07,811/- with future interest @ 12% per annum and for costs of the suit.
      The plaintiffs case is that the first defendant was the absolute owner of
the property mentioned in the schedule to the plaint. He agreed to sell the
property mentioned in A schedule to the plaintiff on 16.03.1985 in favour of
the plaintiff, Dasari Anjaneyulu and Chinna Nagaraju @ Rs.19,000/- per cent.
The total extent of A schedule property is Acs.0.25 cents situated in Survey
No.524-1B of Dharmavaram Town, Ananthapur District. The purchasers 
agreed to purchase 1/3rd share of the said property and the first defendant
agreed to sell the same. On the date of agreement of sale, the first defendant
received a sum of Rs.1,00,000/- out of which, an amount of Rs.33,334/- was
paid by the plaintiff towards advance money and for execution of agreement of
sale in favour of the plaintiff and two others. The plaintiff paid a further amount
of Rs.50,000/- on 12.08.1985 to the first defendant for his share of balance
consideration. The same was endorsed on the photostat copy of the
agreement of sale given to the plaintiff. The plaintiff further stated that he was
always ready and willing to perform his part of the contract but the first
defendant was evading to perform his part of the contract on some or other
ground stating that there were some family disputes. The plaintiff also learnt
that one Govinda Chowdary filed a suit alleging that he was having share in
the family properties of the defendants and the said suit was pending on the
file of the Subordinate Judge, Ananthapur, wherein he obtained a temporary
injunction in respect of the plaint schedule property. Though, in the agreement,
it was stated that the balance consideration had to be paid on or before
30.06.1985, it was agreed that time was not the essence of the contract. The
first defendant already executed a regular sale deed in respect of 2/3rd  share
of the plaint 'A' schedule property but the possession of the same was not
delivered to the purchasers, in whose favour the agreement was executed
along with the plaintiff. Though the plaintiff made a number of demands to
accept the balance sale consideration and execute a regular sale deed,
followed by a registered notice, the sale deed was not executed and the
notices were also not received by the first defendant. The plaintiff sought for
repayment of the amount of Rs.88,334/- received by the first defendant in case
the Court was not inclined to order specific performance, by calculating interest
@ 12% per annum from 16.03.1985 to 12.08.1985 on Rs.33,334/- and from 
12.08.1985 to 14.03.1988 and arriving at an amount of Rs.1,07,811.
Accordingly, he sought for specific performance of agreement of sale dated
16.03.1985 and for consequential delivery of possession or in the alternative,
to pass a decree for a sum of Rs.1,07,811/- with future interest
@ 12% per annum. 
      The first defendant filed a written statement admitting the execution of
agreement of sale dated 16.03.1985, in favour of the plaintiff and two others
@ Rs.19,000/- per cent. It was also admitted that an amount of Rs.1,00,000/-
was received as advance amount, but it was stated that the said amount was
paid only by Dasari Anjaneyulu and Chinna Nagaraju and the plaintiff never
contributed any amount towards advance amount paid. After execution of the
agreement, the other two vendees paid a sum of Rs.50,000/- each and the
plaintiff also paid a sum of Rs.50,000/- and got an endorsement made on
photostat copy of the agreement. Subsequently, the two other vendees got
executed a registered sale deed in respect of their 2/3rd  share of the property,
but the plaintiff came and represented that he was not in a position to take the
registered sale deed and he returned the original agreement stating that he
would receive the amount of Rs.50,000/- a little later. The plaintiff was never
ready and willing to perform his part of the contract and time was already
treated as essence of the contract. The plaintiff did not pay the amount within
the stipulated time on 30.06.1985 and he was given an opportunity of two
more months and accordingly, he paid an amount of Rs.50,000/- on
12.08.1985, but he could not get the balance sale consideration and the
agreement was returned. In view of the breaches committed by the plaintiff, he
was not entitled for the discretionary relief of specific performance. The
allegation that the possession was not delivered to other two vendees after
execution of the registered sale deed was not correct. The first defendant has
not returned the original agreement and kept the same with him was denied.
The defendant was always ready and willing to return the sum of Rs.50,000/
and he was not aware of sending any notice by the plaintiff and hence, the
refusal does not arise.
      The plaintiff filed rejoinder denying the allegation that since the plaintiff
did not pay the amount, he was given an opportunity of two more months time
and accordingly, he paid a sum of Rs.50,000/- before 30.08.1985.
        On the above pleadings, the following issues were framed for
consideration by the trial Court:
        1. Whether the plaintiff is entitled for the relief of specific
        performance?
2. Whether the plaintiff is entitled to recover Rs.1,7811/- (sic.
Rs.1,07,811/-)  and not only Rs.50,000/- with future interest at
12%? 
        3. To what relief?

        The trial Court split the first issue into five points and they are as
follows:-
1. Whether the plaintiff paid his part of advance consideration
on the date of Ex.A.1, agreement?
        2. Whether the time was the essence of the contract?
3. Whether the plaintiff was always ready and willing to perform
his part of the contract?
        4. Whether the suit by the sole plaintiff is maintainable?
        5. Whether the Govinda Chowdary is a necessary party to the
        suit? What is the effect of his non-impleaded?

        In support of the case of the plaintiff, he was examined as P.W.1 and
Exs.A.1 to A.13 were marked. The first defendant's son was examined as
D.W.1 and two other vendees under the agreement were examined as D.Ws.2   
and 3. Exs.B.1, dated 18.08.1989, certified copy of the decree in O.S.No.123
of 1986 on the file of the Subordinate Judge, Anantapur, was marked on behalf
of the defendants.
        On the basis of oral and documentary evidence, the lower Court came
to the conclusion that D.Ws.2 and 3 are blindly supporting the first defendant
for reasons known to them and their evidence cannot be made the basis to
hold that the plaintiff has not paid his part of consideration amount at the time
of Ex.A.1, agreement of sale, particularly when Ex.A.1, agreement of sale and
subsequent conduct of the first defendant in Ex.A.4, endorsement, would
clearly bring out that the plaintiff along with D.Ws.2 and 3 paid Rs.1,00,000/-
on the date of Ex.A.1, agreement of sale, as advance sale consideration and
subsequently paid Rs.50,000/- on 12.08.1985 towards balance sale
consideration. Accordingly, the trial Court held that the plaintiff, D.Ws.2 and 3
altogether paid a sum of Rs.1,00,000/- as advance consideration and the
plaintiff paid his 1/3rd   share of Rs.33,334/- to the first defendant. The trial
Court held that though time was made the essence of contract in Ex.A.1,
agreement of sale, the first defendant, by his subsequent conduct has waived
the said terms and hence the first defendant cannot rely on the said
circumstance to non-suit the plaintiff. With regard to the readiness and
willingness of the plaintiff, the trial Court noticed that the first defendant
executed sale deeds in favour of D.Ws.2 and 3 under Exs.A.5 and A.6 on
10.12.1985 and they, in turn, sold the said extent of land in favour of the wife
of Govinda Chowdary, by name Lakshmi Chowdary, by executing registered 
sale deed, dated 02.08.1993. The suit for partition was filed by Govinda
Chowdary in O.S.No.123 of 1986 on 01.10.1986. The trial Court also observed
that the notice sent to Noohtimadugu address under Ex.A.12 to the first
defendant was returned with an endorsement that he was absent during
delivery times on 14th, 15th and 16th October and he refused to receive the
same on 19.10.1985.  In view of the same, the trial Court observed that the
first defendant refused to receive the notice issued by the plaintiff and the
subsequent conduct of the first defendant was not proper. The lower Court
brushed aside the argument that the delay in filing the suit, though within the
time of limitation, should disentitle the plaintiff for the relief for specific
performance of the agreement of sale. The lower Court gave a finding that the
plaintiff was always ready and willing to perform his part of contract. The trial
Court also held that though there was a compromise decree in O.S.No.123 of
1986, the share of the plaintiff was kept intact and hence, the suit in the
present form by the plaintiff is maintainable for the land of an extent of Acs.8 1/3
cents of the property. With regard to maintainability of the suit without
impleading Govind Chowdary, the trial Court observed that the plaintiff filed
I.A.No.426 of 1993 seeking to add Govinda Chowdary as defendant No.12 in
the suit, but the said application was dismissed on 31.12.1996. In those
circumstances, the plaintiff cannot be found fault for not impleading Govinda
Chowdary as defendant in the suit. Though Govinda Chowdary can be said to
be a proper party, the effect of non-impleadment of him in the suit, is not due
to any fault of the plaintiff and it could not affect the relief of specific
performance of the agreement of sale. On the second issue of the entitlement
of the plaintiff for refund of the amount, the plaintiff was held to be entitled for
refund of the amount and accordingly the suit was decreed with costs directing
the defendants 2 to 11 to execute a registered sale deed conveying title in
respect of the plaint schedule property in favour of the plaintiff within a period
of three months from the date of the decree by accepting the balance sale
consideration by its judgment and decree, dated 18.01.1999. Challenging the
said judgment and decree, the present Appeal is filed.

        The point for consideration in the present appeal is whether the plaintiff
was ready and willing to perform his part of the contract and whether decree
passed by the trial court is proper or not?
        The learned counsel for the appellants raised the following contentions:-
.       The plaintiff failed to aver in the plaint with regard to his readiness and
willingness to perform his part of contract and prove the same and hence, he is
not entitled for the discretionary relief of specific performance. Learned
counsel further submitted that the suit is bad for non-joinder of other two
purchasers, who are parties to the agreement along with the plaintiff. He lastly
submitted that in view of the facts and circumstances of the case, the trial
Court has not properly exercised its direction. He relied on Pushparani S.
Sundaram vs. Pauline Manomani James , Manjunath Anandappa vs.   
Tammanasa , I.S.Sikandar vs. K.Subramani , Padmakumari vs. 
Dasayyan  and Killamsetty Eswari vs. Pedada Tulasi Rao (died) per LRs .
        Learned counsel for the respondent submitted that since the plaintiff
deposited the balance sale consideration before the trial Court, it is sufficient
compliance for his readiness and willingness and no further proof is required.
He relied on Motilal Jain vs. Ramdasi Devi , Panchanan Dhara vs.
Monmatha Nath Maity  and N.Srinivasa vs. Kuttukaran Machine Tools 
Limited .     
        The undisputed facts in the instant case are that the first defendant was
absolute owner of the agricultural land of an extent of Acs.7.47 cents situated
in Survey No.524-1B of Dharmavaram Town and Municipality and out of the
same, he wanted to sell Acs.0.25 cents of land to the plaintiff and two others
under an agreement of sale dated 16.03.1985, which is marked as Ex.A.1. He
received an amount of Rs.1,00,000/- towards advance sale consideration
stipulating in the agreement that the balance sale consideration was to be paid
on or before 30.06.1985. Thereafter, the two other vendees under Ex.A.1,
agreement, got registered sale deeds executed in their favour in respect of
2/3rd share of the property on 06.12.1985 and 09.12.1985 respectively under
Exs.A.5 and A.6. The plaintiff paid an amount of Rs.50,000/- on 12.08.1985 to
the first defendant beyond the period of two months period of the date
specified in the agreement and the first defendant has accepted the same by
making an endorsement on the copy of the agreement of sale. In the
meanwhile, it appears that one Govinda Chowdary, who is the son of the sister
of the first defendant, filed O.S.No.123 of 1986 on the file of the Subordinate
Judge, Ananthapur, seeking partition of the properties held by the joint family
claiming 3/8th share therein. The property covered by Ex.A.1, agreement of
sale, is also part of the said property. In the said suit, the two other vendees
under Ex.A.1, agreement of sale, were arrayed as defendants 14 and 16. The
matter was compromised ultimately on 18.06.1989 and 'B' schedule in the
compromise decree states that an extent of 162/3 cents on the western side of
Survey No.524-1B belongs to defendants 14 to 17, according to the sale deed
executed by the first defendant. It is also agreed that the plaintiff and
defendant No.7 should have the right in the balance 1/3rd on the Eastern side,
which is the subject matter of the present suit and it was held that the first
defendant had to take responsibility to settle the said dispute and give the said
portion to the plaintiff and defendant No.7. The plaintiff issued a notice under
Ex.A.7 on 14.09.1987 and the notices were refused and they were marked as
Exs.A.10, 12 and 13. Insofar as the property purchased by the two other
vendees under Ex.A.1, agreement of sale is concerned, they executed a
registered sale deed in favour of the plaintiff in O.S.No.123 of 1986, Govinda
Chowdary on 02.08.1993 and 28.12.1994 respectively under Exs.A.8 and A.9. 
The plaintiff filed the suit originally before the learned Subordinate Judge,
Ananthapur in O.S.No.39 of 1988 and it was transferred to the Court of the
Senior Civil Judge, Penukonda, by the orders of the District Judge,
Ananthapur, on 01.08.1997 and the same was re-numbered as O.S.No.72 of 
1997 consequent to transfer. The first defendant expired pendentelite and his
legal representatives were brought on record as defendants 2 to 11. The son
of the first defendant was examined as D.W.1 and the two other vendees
under Ex.A.1, agreement of sale, were examined as D.Ws.2 and 3. 
        A perusal of E.A.1, agreement of sale, dated 16.03.1985, shows that
the land of an extent of Acs.0.25 cents in Survey No.524-1B was agreed to be
sold by the first defendant at the rate of Rs.19,000/- per cent and he received
the advance amount of Rs.1,00,000/- on the date of the agreement. The
balance sale consideration was agreed to be paid on or before 30.06.1985. It
was also stated that the advance amount would be forfeited in case of non-
payment of balance consideration within the date and in case of failure of the
first defendant to execute the sale deed in spite of paying the balance sale
consideration, the parties were given liberty to deposit the balance sale
consideration and get the document registered.
        In view of the submission made by the learned counsel for the
appellants that the plaintiff failed to aver his readiness and willingness and the
pleadings of the plaintiff were not in conformity with Order VI Rule 3 CPC and
clause 3 of Form 47 in appendix A, it has to be seen whether such a pleading
was there by the plaintiff and what is the effect of absence of such pleading as
per the provisions of CPC. To examine this point, it is relevant to extract Order
VI Rule 3 CPC and clause 3 of Form 47 in appendix A in this order and the
same reads as under.
       Order VI Rule 3 of CPC reads as under:
       3. Forms of pleading.- The forms in Appendix A when applicable, and
where they are not applicable forms of the like character, as nearly as may be,
shall be used for all pleadings.

      Form 47 in Appendix A of CPC reads as under:
       No.47
       (Specific Performance (No.1)
       (Title)
       A.B., the above named plaintiff, states as follows:-
1.      By an agreement dated the ______ day of _____ and signed by the 
defendant, he contracted to buy of [or sell to] the plaintiff certain
immovable property therein described and referred to, for the sum of
____ rupees
2.      The plaintiff has applied to the defendant specifically to perform the
agreement on his part, but the defendant has not done so.
3.      The plaintiff has been and still is ready and willing specifically to perform
the agreement on his part of which the defendant has had notice.
4.      [facts showing when the cause of action arose and that the Court has
jurisdiction]
5.      The value of the subject matter of the suit for the purpose of jurisdiction
is ____ rupees and for the purpose of court fees is ____ rupees.
6.      The plaintiff claims that the Court will order the defendant specifically to
perform the agreement and to do all acts necessary to put the plaintiff in
full possession of the said property [or to accept a transfer and
possession of the said property] and to pay the costs of the suit.

        It is also relevant to refer to 16(c) of the Specific Relief Act, which is as
follows:-
16. Personal bars to relief.- Specific performance of a contract cannot be
enforced in favour of a person-
(a)
(b)
(c) who fails to aver and prove that he has performed or has always been ready
and willing to perform the essential terms of the contract which are to be
performed by him, other than terms the performance of which has been
prevented or waived by the defendant.
Explanation.- For the purpose of clause (c),-
        (i) where a contract involves the payment of money, it is not essential for
the plaintiff to actually tender to the defendant or to deposit in Court any money
except when so directed by the Court;
        (ii) the plaintiff must aver performance of, or readiness and willingness to
perform, the contract according to its true construction.

        In the light of the above provisions of CPC, it is relevant to refer to the
paragraphs 4, 5 and 6 of the plaint and the same reads as under.
                (4) On 16-3-1985, the defendant agreed to sell the property
mentioned in the A schedule in favour plaintiff, Dasari Anjaneyulu and Chinna
Nagaraju at the rate of Rs.19,000.00 (Nineteen thousand only) per cent. Each of
the above said persons agreed to purchase 1/3 share and the property
mentioned in the B schedule allotted to the share of plaintiff, and the defendant
agreed to sell the same to the plaintiff. On the even date, the defendant
received a sum of Rs.1,00,000.00 (one lakh), out of which a sum of
Rs.33,334.00 is paid by the plaintiff towards advance money and excuted an
agreement of sale in favour of the plaintiff, Anjaneyuulu and Chinna Nagaraju.
The photostat copy of the agreement eecuted by the defendant is herewith filed
and the plaintiff crave leave of this Honourable Court to read the same as part
and parcel of this plaint.
                (5) On 12-8-85, the plaintiff paid Rs.50,000.00 to the defendant
towards his share of balance consideration. The defendant endorsed the same
on the photostat copy of the agreement given to the plaintiff.
                (6) The plaintiff is always ready and willing to perform his part of the
contract. The defendant is always evading to perform his part of the contract on
some or other ground stating that there are some family disputes.

        In Pushparani S. Sundaram's case, the Supreme Court held that mere
averment is not sufficient but there should be proof of the same. In the said
case, the plaintiff has not come to the witness box and also did not even send
any communication or notice to the defendant therein about his willingness to
perform his part of the contract. No evidence was let in in support of his plea
and hence, it is distinguishable on facts.
        In Manjunath Anandappa's case, the plaintiff served a notice upon the
second defendant only after expiry of the period of three years. He filed the
suit after coming to know of the fact that the first defendant transferred the
property in favour of third party and the first defendant did not receive any
notice. In fact, the plaintiff filed the suit after six years from the date of entering
into the agreement of sale. The Supreme Court observed as follows:-
        The decisions of this Court, therefore, leave no manner of doubt that a
plaintiff in a suit for specific performance of contract not only must raise a plea
that he had all along been and even on the date of filing of suit was ready and
willing to perform his part of contract, but also prove the same. Only in certain
exceptional situation where although in letter and spirit, the exact words had not
been used but readiness and willingness can be culled out from reading all the
averments made by the plaintiff as a whole coupled with the materials brought
on record at the trial of the suit, to the said effect, the statutory requirement of
Section 16(c) of the Specific Relief Act may be held to have been complied
with.
       
      Thus, the above decision is also distinguishable on facts.
        In I.S.Sikandar's case, the suit was filed eleven months after expiry of
the limitation period stipulated in the agreement, to get the sale deed executed
in favour of the plaintiff. The sale consideration of Rs.48,000/- was paid to
defendants 1 to 4 after the termination of the earlier agreement on 10.04.1985
by notice dated 28.03.1985. The plaintiff did not get the agreement of sale
executed by paying the remaining consideration to defendants 1 to 4. The
plaintiff has not asked the defendants 1 to 4 to get the necessary permission
from the Urban Land Ceiling and Income Tax Department after paying the
Layout charges to the authorities concerned for getting the sale deed executed
in his favour. Thus, the facts in the said case are also different.
        In Padmakumari's case, the plaintiff agreed for payment of balance
sale consideration more than nine months from the date of execution of the
agreement to sell, but the plaintiff argued that the payment of balance
consideration would arise as per the terms and conditions of the contract
agreed upon by the defendants 1 to 11, if they had measured the suit schedule
property and since they failed to discharge their part, time was not the essence
of the contract. The Supreme Court held that the said contention raised by the
plaintiff is unaccpetable as the question of taking measurement could not arise
before the plaintiff performs his part of the contract for payment of balance sale
consideration within the period stipulated in the agreement. Further, after
committing default by the plaintiff, the defendants 1 to 11 entered into another
agreement with defendants 12 to 15 as the sale deed was registered in their
favour by taking the consideration. Hence, the facts of the case are also
different from the facts in the present case.
        The last decision relied upon by the learned counsel for the appellants
is that of Killamsetty Eswari decided by the Division Bench of this Court. The
plaintiff though stated his readiness and willingness to perform the essential
terms of the contract did not produce any proof to show his readiness.
        In the present case, the plaintiff contributed his share of the advance
sale consideration at the time of Ex.A.1, agreement of sale, followed by
payment of Rs.50,000/- on 12.08.1985, which was accepted by the first
defendant. In the evidence of D.W.1, a suggestion was made stating that the
plaintiff had Acs.20.00 of dry land and Acs.4.00 of wet land and was getting
the yield of 200 bags of paddy and 200 bags of groundnut and earning
Rs.1,00,000/- to Rs.1,50,000/- at the time of Ex.A.1. Another suggestion was
also put to him stating that right from the beginning, the plaintiff was ready and
willing to perform his part and get a valid sale deed executed, but the first
defendant was evading the same. The refusal of the notice issued by the
plaintiff on 24.09.1987 asking the defendants to receive the balance sale
consideration and execute a registered sale deed clearly indicates the
readiness and willingness of the plaintiff. This was further supported by deposit
of balance sale consideration in the Court at the time of filing the suit. Hence,
the decisions relied on by the learned counsel for the appellants are not
applicable to the facts of the present case though there cannot be any dispute
on the point of law.
        Learned counsel for the respondents by relying on the decision in
Manjunath Anandappa's case, drew the attention of this Court to paragraph
24 of the said decision and submitted that in view of the deposit of the amount
in the Court, it is sufficient compliance under Section 16(c) of the Specific
Relief Act. He also relied on paragraph 9 of the decision in Motilal Jain's case,
which are as follows:-
        9. That decision was relied upon by a three-Judge Bench of this Court in
Syed Dastagir vs. T.R.Gopalakrishna Setty ((1999) 6 SCC 337), wherein it
was held that in construing a plea in any pleading, courts must keep in mind that
a plea is not an expression of art and science but an expression through words
to place fact and law of one's case for a relief. It is pointed out that in India most
of the pleas are drafted by counsel and hence they inevitably differ from one to
the other; thus, to gather the true spirit behind a plea it should be read as a
whole and to test whether the plaintiff has performed his obligations, one has to
see the pith and substance of the plea. It was observed: (SCC Headnote)
        "Unless a statute specifically requires a plea to be in any particular form,
it can be in any form. No specific phraseology or language is required to
take such a plea. The language in Section 16(c) of the Specific Relief Act,
1963 does not require any specific phraseology but only that the plaintiff
must aver that he has performed or has always been and is willing to
perform his part of the contract. So the compliance of 'readiness and
willingness' has to be in spirit and substance and not in letter and form."

        It is thus clear that an averment of readiness and willingness in the plaint is
not a mathematical formula which should only be in specific words. If the
averments in the plaint as a whole do clearly indicate the readiness and
willingness of the plaintiff to fulfill his part of the obligations under the contract
which is the subject matter of the suit, the fact that they are differently worded
will not militate against the readiness and willingness of the plaintiff in a suit for
specific performance of contract for sale.
       
      In Panchanan Dhara's case, the point of limitation for filing suit for
specific performance was considered and held that the suit filed within the
period of three years from the date of agreement of sale would be in order.
        Lastly, he submitted that in a contract for sale of immovable property,
the time is not the essence of the contract. Even if there is an express
stipulation to that effect, the said presumption can be rebutted. He placed
reliance on N.Srinivasa's case in this regard.
        In the instant case, the first defendant accepted the payment beyond
the period stipulated in the contract and he did not issue any notice terminating
the contract by stipulating the period thereafter. Further, when a notice was
issued by the plaintiff, he refused to receive the same. The suit cannot be held
bad for non-joinder of other two purchasers along with the plaintiff since
Anjaneyulu and Chinna Nagaraju already got sale deeds executed and in turn,
they executed sale deed in favour of in favour of the plaintiff in O.S.No.123 of
1986.
        The last submission made by the learned counsel for the appellants
that the trial Court has not exercised its discretion properly while decreeing the
suit for specific performance has also to be rejected in view of the observations
in Manjunath Anandappa's case, which are as under:
        37. In U.P. Coop. Federation Ltd. v. Sunder Bros. (AIR
1967 SC 249) the law is stated in the following terms: (AIR p.253, para
8)

        8. It is well-established that where the discretion vested
in the court under Section 34 of the Indian Arbitration Act has
been exercised by the lower court the appellate court should
be slow to interfere with the exercise of that discretion. In
dealing with the matter raised before it at the appellate stage
the appellate court would normally not be justified in
interfering with the exercise of the discretion under appeal
solely on the ground that if it had considered the matter at the
trial stage it may have come to a contrary conclusion. If the
discretion has been exercised by the trial court reasonably
and in a judicial manner the fact that the appellate court
would have taken a different view may not justify interference
with the trial courts exercise of discretion. As is often said, it
is ordinarily not open to the appellate court to substitute its
own exercise of discretion for that of the trial Judge; but if it
appears to the appellate court that in exercising its discretion
the trial court has acted unreasonably or capriciously or has
ignored relevant facts then it would certainly be open to the
appellate court to interfere with the trial court s exercise of
discretion. This principle is well-established; but, as has been
observed by Viscount Simon, L.C., in Charles Osenton &
Co. v. Johnston (1942 AC 130 : (1941) 2 All ER 245 (HL))
AC at p. 138:

       "The law as to the reversal by a court of appeal
of an order made by a Judge below in the exercise
of his discretion is well-established, and any
difficulty that arises is due only to the application of
well-settled principles in an individual case."

       38. Yet again in Gujarat Steel Tubes Ltd. v. Gujarat Steel
Tubes Mazdoor Sabha ((1980) 2 SCC 593 : 1980 SCC (L&S) 197 :   
AIR 1980 SC 1896) the law is stated in the following terms: (SCC
pp.624-25, para 73)

       "73. While the remedy under Article 226 is extraordinary
and is of Anglo-Saxon vintage, it is not a carbon copy of
English processes. Article 226 is a sparing surgery but the
lancet operates where injustice suppurates. While traditional
restraints like availability of alternative remedy hold back the
court, and judicial power should not ordinarily rush in where
the other two branches fear to tread, judicial daring is not
daunted where glaring injustice demands even affirmative
action. The wide words of Article 226 are designed for service
of the lowly numbers in their grievances if the subject belongs
to the court s province and the remedy is appropriate to the
judicial process. There is a native hue about Article 226,
without being anglophilic or anglophobic in attitude. Viewed
from this jurisprudential perspective, we have to be cautious
both in not overstepping as if Article 226 were as large as an
appeal and not failing to intervene where a grave error has
crept in. Moreover, we sit here in appeal over the High Court
s judgment. And an appellate power interferes not when the
order appealed is not right but only when it is clearly wrong.
The difference is real, though fine." (emphasis in original)

        In the instant case, the trial Court exercised its discretion and when the
said discretion is not clearly wrong on the face of it, it is not proper for this
Court to interfere with the said discretion exercised by the trial Court.
Accordingly, the Appeal Suit is dismissed without costs, by confirming the
Judgment and Decree, dated 18.01.1999, passed in O.S.No.72 of 1997 by the 
Court of the Senior Civil Judge, Penukonda.
        Consequently, miscellaneous petitions, if any pending, shall stand
closed.
__________________________   
A.RAMALINGESWARA RAO, J       
20.04.2018

Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. = The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High Court in this regard. Hence, in view of admission of execution of the Ex.A1 promissory note, the burden is on the defendant to prove his case. Besides himself, the defendant examined DWs.2 to 4 to show that the said Mohana Rao was in the habit of lending money, but did not speak of non-passing of consideration. On the other hand, it is the case of the defendant that he was borrowing amounts from Mohana Rao and the suit promissory note was executed for a much higher amount than the amount borrowed by him. That borrowing of higher amount was also not proved by the defendant in the instant case by producing any documentary evidence. In view of the same, the judgment and decree passed by the trial Court cannot be set aside and accordingly it is affirmed.

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO           

Appeal Suit No. 1006 of 1999

20.04.2018

Siram Srirama MurthyAppellant 

Meka Suryanarayanamma   Respondent     

Counsel for the Appellant:  Sri M.V. Suresh

Counsel for the Respondent:  Sri K.V. Subba Reddy


<Gist :

>Head Note :

?Cases referred:

1. AIR 1999 SC 1441
2. AIR 1973 Calcutta 465
3. (1999) AIR (SC) 1008



HONBLE SRI JUSTICE A. RAMALINGESWARA RAO           

Appeal Suit No.1006 of 1999

Judgment:

       This appeal is directed against the judgment and decree dated
22.01.1999 passed in O.S.No.27 of 1992 on the file of the learned Senior
Civil Judge, Razole.    The suit was filed for recovery of Rs.88,400/- being
principal and interest due as on the date of filing of the suit with costs and
future interest.
      It was alleged in the plaint that the defendant borrowed an amount
of Rs.65,000/- for the purpose of his necessities and executed a
promissory note on 01.09.1989 in favour of the plaintiff undertaking to
repay the same together with interest thereon at Rs.1.50 per mensem per
hundred to her or her order on demand.  The plaintiff issued a notice on
03.08.1992 and the defendant received the same.  The defendant issued
a reply notice on 08.08.1992 with false allegations.  The suit was filed for
Rs.88,400/- calculating interest at 12% p.a., on the original amount of
Rs.65,000/-.
        The defendant filed a written statement stating that the plaintiff is
the sister of one Bolla Veera Venkata Rama Mohana Rao of Mondepulanka 
village, the plaintiff in O.S.No.37 of 1992 is the younger brother of the
said B.V.V.R. Mohana Rao and the plaintiff in O.S.No.28 of 1992 is the
mother of said B.V.V.R. Mohana Rao.  All the pronotes were executed on
the same date, but the date on the pronote in O.S.No.37 of 1992 was put
as 26.10.1989.  The plaint allegations are denied.  The execution, passing
of consideration under the promissory note and the validity of the same
are specifically denied by the defendant.  It was also stated that the suit
promissory note was not true, valid and it is not supported by
consideration.  The defendant denied the knowledge of the plaintiff and
also stated that there are no transactions between him and the plaintiff,
but admitted that one B.V.V.R. Mohana Rao has got some transactions 
with the defendant.  The said B.V.V.R. Mohana Rao was stated to be an
unscrupulous money lender.  It was also stated that the defendant and
the said B.V.V.R. Mohana Rao stored the paddy by purchasing with a view
to sell the same for higher price and in that transaction the defendant has
to pay an amount of Rs.33,900/- as on 01.09.1988 and interest accrued
thereon up to 01.09.1989 came to Rs.8,136/-.  The defendant also
borrowed an amount of Rs.20,000/- on 29.05.1988 and the interest
accrued thereon came to Rs.10,500/- calculated up to 31.08.1989.  The
defendant further stated that he borrowed an amount of Rs.10,000/- on
06.01.1989 and the interest came to Rs.3,134/- calculated up to
31.08.1989.  He also borrowed an amount of Rs.5,000/- on 07.01.1989
and the interest came to Rs.1,564/- as on 31.08.1989.  The defendant
and the said B.V.V.R. Mohana Rao did business in fire works during Diwali
season of 1988.  In that connection the defendant borrowed Rs.8,600/-
and the interest came to Rs.3,612/- calculated up to 31.08.1989.  When
the said Mohana Rao gave pressure, threatened and coerced the
defendant to execute fresh promissory notes on 01.09.1989, he executed
the promissory notes in the name of his mother, Bolla Sathemma, W/o
Subba Rao for Rs.43,900/- by putting the excess amount of Rs.10,000/-
and the plaintiff made a material alteration in the said promissory note.
The said promissory note is the subject matter of O.S.No.28 of 1992.  The
promissory note in favour of the present plaintiff was made up of
borrowings on different dates and the total interest came to Rs.26,946/-,
out of which the defendant paid an amount of Rs.4,260/- and the balance
interest amount of Rs.22,686/- remained.  He stated that on 01.09.1989,
the promissory notes were obtained and the promissory notes in favour of
the plaintiff herein and in favour of Bolla Sathemma, which is the subject
matter of O.S.No.28 of 1992, are not supported by consideration.  He also
stated that he executed another promissory note in favour of younger
brother of Mohana Rao which is the subject matter of O.S.No.37 of 1992.
Thus, the promissory notes under three suits being O.S.Nos.27 of 1992,
28 of 1992 and 37 of 1992 were not supported by consideration, they
were not executed, they were not valid and they were not enforceable
under law.   The alleged attesting witnesses were not present at the time
of execution of the promissory notes and the attesting signatures were
subsequently obtained without the knowledge of the defendant.  So, the
said promissory notes were vitiated by material alterations.  The
defendant is entitled to the benefit of Act 45 of 1987 and also Act 1 of
1990 and other enactments.  The suit debt even if it is true was abated.
        On the basis of the above pleadings, the following issues were
framed by the trial court:
1.      Whether the suit promissory note is true, valid and supported
by consideration?
2.      Whether the suit promissory note came into existence under the
circumstances mentioned in the written statement/
3.      Whether the defendant is a small farmer and whether he is
entitled to the benefits of Act 45 of 1987 and Act 1 of 1990.
4.      To what relief?

      On behalf of the plaintiff, PWs.1 and 2 were examined and Exs.A1
to A4 were marked.  On behalf of the defendant, the defendant himself
was examined as DW.1 besides examining three more witnesses as DWs.2   
to 4 and Exs.B1 to B19 were marked.
      The trial Court noticed that the defendant as DW.1 admitted the
execution of Ex.A1 promissory note and held that in view of the said
admission, Section 118 of the Negotiable Instruments Act comes into
operation and presumption could be drawn in favour of the promisee that
the promissory note was supported by consideration.  In view of the
same, the oral evidence of DWs.2 to 4 to the effect that the said Mohana
Rao was in the habit of getting promissory notes executed in favour of his
family members for excess amount than lent was not taken into
consideration.  It was also observed that DWs.2 to 4 are well acquainted
with the defendant and their oral evidence cannot be relied upon.  Since
the plaintiff proved the execution of Ex.A1 by examining one of the
attestors, the trial Court came to the conclusion that the suit promissory
note was proved, valid and supported by consideration.  With regard to
plea of small farmer and his entitlement to the benefit of Act 45 of 1987
and 1 of 1990, in view of the admission of the defendant that he is having
one medical shop and two kirana shops at Gannavaram and in the 
absence of any evidence of ownership of agricultural lands by the
defendant, the plea of small farmer was rejected.  Accordingly, the suit
was decreed, by judgment and decree dated 22.01.1999, for a sum of
Rs.88,400/- with future interest at 12% p.a.  Challenging the said
judgment and decree, the above appeal was filed.
      In the present appeal, the point that falls for consideration is
whether, in the facts and circumstances of the case, the judgment and
decree of the trial court is correct or not?
        Learned counsel for the appellant/defendant submitted that in the
absence of the plaintiff coming to the witness box, the suit should not
have been decreed and he placed reliance on a decision of the Honble
Supreme Court reported in Vidhyadhar v. Manikrao .
        Learned counsel for the respondent/plaintiff, on the other hand, by
relying on the decision reported in Bijoy Kumar Karnani v. Lahori
Ram Prashe , submitted that adverse inference under Section 114 of the
Evidence Act cannot be drawn for mere non-examination of the plaintiff
when other material witness is produced.  He further submitted that when
once execution of promissory note is admitted, presumption under Section
118(a) of the Negotiable Instruments Act would arise that it is supported
by consideration and in support of the said contention he relied on a
decision reported in Bharat Barrel and Drum Manufacture Company 
Limited v. Amin Chand Payrelal .
        It is no doubt true that the plaintiff did not enter the witness box.
The said B.V.V.R. Mohana Rao @ Bolla Rama Rao was examined as PW.1     
and he stated that the plaintiff is the daughter of his elder sister and he
has been looking after her affairs.  He spoke about the defendant
borrowing an amount of Rs.65,000/- from the plaintiff and scribing the
promissory note in favour of the plaintiff on 01.09.1989.  He denied doing
any business with the defendant jointly.  The other averments made in
the written statement were also denied by him.  He further stated that
DW.2 is a tailor by profession and close friend of DW.1.  In the cross-
examination he stated that himself, his mother and his brother are
residing in the same house at Mondepulanka village and the plaintiff was
not having any properties at Mondepulanka village.  He further stated that
except the amount lent under the promissory note, he did not lend any
amount.  He denied the other transactions alleged by the defendant in his
cross-examination.
        On behalf of the plaintiff, PW.2 was also examined and he is one of
the attestors of the pronote.  He stated that he attested Ex.A1 pronote
along with elder son of the defendant who attested Ex.A1.
        The defendant as DW.1 spoke on the lines of his written statement.
In the chief-examination he admitted that the said Rama Mohana Rao
obtained a pronote for Rs.65,000/-, which includes Rs.43,600/- borrowed
with interest at Rs.10,000/- and the balance amount of Rs.11,400/-.  He
admitted the execution of pronote in the name of the plaintiff.
      DW.2 denied his presence at the time of negotiations between
Bolla Rama Rao and the defendant.  DW.3 who is the supplier of eggs
stated that he used to borrow money from Bolla Rama Rao.  He stated
that himself, defendant and Bolla Rama Rao were only present at the time
of execution of Exs.B15 and 16.  Similarly, DW.4 stated that he borrowed
the amount from B. Rama Rao and discharged the said amount.  He is an 
agriculturist and doing fishing business.
        Thus, the plaintiff did not enter the witness box and PW.1 who
stated that he is acquainted with the facts of the case deposed on behalf
of the plaintiff.  One of the attestors was examined as PW.2.  The
defendant admitted the execution of the promissory note, but disputed
the attestation and consideration.
        In Vidhyadhars case (supra) the plaintiff filed a suit against the
defendants for redemption of the mortgage by conditional sale or in the
alternative for a decree of specific performance of contract for repurchase.
The property involved is 4.04 acres of land.  The second defendant
executed a document called kararkharedi in favour of the first defendant
for a sum of Rs.1500/- and delivered possession thereof to him.  The
document contained a stipulation that if the entire amount of Rs.1500/-
was returned to the first defendant before 15th of March, 1973, the
property would be given back to the second defendant.  The land was
subsequently transferred by the second defendant in favour of the plaintiff
for a sum of Rs.5,000/- by a registered sale deed dated 19.06.1973.  After
purchase of the property, the plaintiff filed the above suit stating that the
second defendant had offered the entire amount to the first defendant but
he did not accept the amount and since the document executed by the
second defendant in favour of the first defendant was a mortgage by
conditional sale the property was liable to be redeemed.  It was also
stated that if it was held by the Court that the document did not create a
mortgage but was an out and out sale, the plaintiff as transferee of the
second defendant was entitled to a decree for re-conveyance of the
property as the second defendant already offered the entire amount of
sale consideration to the first defendant which he refused and the plaintiff
was still prepared to offer the said amount to the first defendant.
      The second defendant admitted the case of the plaintiff, whereas
the first defendant contested the suit and stated that the document was
not a mortgage by conditional sale but an out and out sale and since the
amount of consideration was not tendered within the time stipulated, the
plaintiff could not claim re-conveyance of the property in question.  The
trial Court decreed the suit and was confirmed in appeal, but was
reversed by the High Court in the Second Appeal.
      In the said case, the Honble Supreme Court noticed that the first
defendant did not enter the witness box, did not state the facts pleaded in
the written statement on oath in the trial Court and avoided the witness
box so that he may not be cross-examined and that would itself be
enough to reject the claim that the transaction of sale between the
plaintiff and the second defendant was a bogus transaction.  In that
connection the Honble Supreme Court observed as follows:
        16. Where a party to the suit does not appear into the
witness box and states his own case on oath and does not offer
himself to be cross examined by the other side, a presumption
would arise that the case set up by him is not correct as has been
held in a series of decisions passed by various High Courts and
the Privy Council beginning from the decision in Sardar
Gurbakhsh Singh v. Gurdial Singh (AIR 1927 PC 230).  This
was followed by the Lahore High Court in Kirpa Singh v. Ajaipal
Singh (AIR 1930 Lahore 1) and the Bombay High Court in
Martand Pandharinath Chaudhari v. Radhabai Krishnarao
Deshmukh (AIR 1931 Bombay 97). The Madhya Pradesh High     
Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore
Rawat (AIR 1970 Madh Pra 225), also followed the Privy Council
decision in Sardar Gurbakhsh Singh's case (supra). The
Allahabad High Court in Arjun Singh v. Virender Nath (AIR
1971 Allahabad 29) held that if a party abstains from entering the
witness box, it would give rise to an inference adverse against
him. Similarly, a Division Bench of the Punjab and Haryana High
Court in Bhagwan Dass v. Bhishan Chand (AIR 1974 Punj and 
Har 7), drew a presumption under Section 114 of the Evidence Act
against a party who did not enter into the witness box.
       17. Defendant No. 1 himself was not a party to the
transaction of sale between defendant No. 2 and the plaintiff. He
himself had no personal knowledge of the terms settled between
defendant No. 2 and the plaintiff. The transaction was not settled
in his presence nor was any payment made in his presence. Nor,
for that matter, was he a scribe or marginal witness of that sale
deed. Could, in this situation, defendant No.1 have raised a plea
as to the validity of the sale deed on the ground of inadequacy of
consideration or part-payment thereof? Defendant No. 2 alone,
who was the executant of the sale deed, could have raised an
objection as to the validity of the sale deed on the ground that it
was without consideration or that the consideration paid to him
was highly inadequate. But he, as pointed out earlier, admitted
the claim of the plaintiff whose claim in the suit was based on the
sale deed, executed by defendant No. 2 in his favour. The
property having been transferred to him, the plaintiff became
entitled to all the reliefs which could have been claimed by
defendant No. 2 against defendant No. 1 including redemption of
the mortgaged property.

        The instant case is a converse case, where, though the plaintiff did
not enter the witness box, but the facts were spoken by PW.1 on behalf of
the plaintiff and the case of the plaintiff to the extent of execution of the
document was admitted by the defendant, though he denied the
consideration and attestation.  The suit promissory note is not a
compulsorily attestable document and there is no dispute with regard to
execution of Ex.A1 promissory note.  In such circumstances, as rightly
pointed out by the learned counsel for the respondent/plaintiff, Section
118(a) of the Negotiable Instruments Act comes into operation and the
decision in Vidhyadhars case (supra) is not applicable to the facts of the
present case.
        The facts in Bijoy Kumar Karnanis case (supra) are identical to
the facts of the present case.  The case of the plaintiff was that the
defendant executed two promissory notes for a sum of Rs.5,000/- and
Rs.12,000/- respectively.  He also executed two receipts on the dates of
the promissory notes.  In spite of giving notice, the defendant failed to
pay the amount and accordingly the suit was filed.  In the suit, the
defendant admitted the execution of the promissory notes and the
receipts of the monies under the said promissory notes.  He also admitted
the execution of two separate receipts/vouchers in favour of the plaintiff,
but stated that the promissory notes and the receipts/vouchers were not
executed at Calcutta within the jurisdiction of the Court but the same
were executed out side the jurisdiction of the Court.  He also pleaded that
he repaid the sum covered by the promissory notes in due course and
thus they were discharged.  The plaintiff returned the promissory notes
duly discharging it to the defendant.  In the said suit, the plaintiff did not
come to the witness box.  The Accountant also was not called for
evidence.  He placed reliance on Section 114, illustration (g) of the Indian
Evidence Act.  In this connection, the Calcutta High Court observed as
follows:
        10. I do not understand how this decision of the Privy
Council establishes the proposition made by Dr. Das that under
the facts of the instant case before me for non-calling of Bejoy
Kumar Karnani and the Accountant Kundu I shall draw the
adverse inference which the Privy Council was pleased to draw by
non-calling the second widow of Jawalla Singh. In the instant
case, Sanak Chandra Biswas an employee of Bejoy Kumar Karnani   
gave evidence before me, stating that two documents were
executed before him by the defendant at No.17, Chowringhee
Road, Calcutta, and he made payment of the money which he 
carried to the defendant at that place. He took the promissory
notes and two vouchers were signed in his presence at No.17,
Chowringhee Road, Calcutta.  When he took the money to the 
defendant No.17, Chowringhee Road, only the Darwan 
accompanied him. He did not remember the name of the Darwan. 
Apart from the Darwan, driver of the defendant drove the car.
Therefore, at the time when the promissory notes were executed
Bijoy Kumar Karnani was not present. There is no dispute with
regard to making of the vouchers. The execution of the receipts in
the vouchers is also admitted.  Only the place of execution is
disputed.  In view of the evidence given on behalf of the plaintiff,
I do not understand how the plaintiff was a material witness to
prove the fact of the place of the execution of two promissory
notes and why I should draw any adverse inference which the
Privy Council was pleased to draw under entirely different facts
and circumstances. It is true that the defendant made the case
that the promissory notes were executed at 22/23, Gariahat Road,
outside the said jurisdiction.  But this was not the case of the
plaintiff. In cross-examination it was suggested that paragraphs 1
and 2 of the plaint are verified by the plaintiff as true to his
knowledge and it was suggested that the plaintiff should have
come and deposed.  But in view of the evidence given by the
plaintiff's witness I do not think that the plaintiff himself was a
material witness to prove the place of execution. The accountant
Kundu is also not a material witness in this suit. The argument
made by Dr. Das, if accepted, would mean that the plaintiff should
have been called to disprove the defendant's case. In my view,
there is no question of invoking presumption of Section 114,
illustration (g) of the Indian Evidence Act and the principles laid
down in the said Privy Council decision, cannot apply in this case.
       
      In Bharat Barrel and Drum Manufacture Company Limiteds
case (supra) also the defendant admitted the execution of the promissory
note.  The Honble Supreme Court, interpreting the scope of Section 118
of the Negotiable Instruments Act and the presumptions arising under it
held as follows:
       11. Section 118 of the Act deals with the presumptions as
to negotiable instruments. One of such presumptions is, that
every negotiable instrument was made or drawn for consideration,
and that every such instrument when it has been accepted,
indorsed, negotiated or transferred, was accepted, indorsed,
negotiated or transferred for consideration. This presumption is
based upon a principle and is not a mere technical provision. The
principle incorporated being, inferring of a presumption of
consideration in the case of a negotiable instrument. A Full Bench
of the Rajasthan High Court in Heerachand v. Jeevraj (AIR
1959 Raj. 1) held that, presumption, therefore, as to consideration
is the very ingredient of negotiability and in the case of negotiable
instrument, presumption as to consideration has to be made.  A
Full Bench of the Andhra Pradesh High Court in G. Vasu v. Syed
Yaseen Sifuddin Quadri  (AIR 1987 Andhra Pradesh 139) while
dealing with the words until the contrary is proved held that it
was permissible for the Court to look into the preponderance of
the probabilities and the entire circumstances of the particular
case. After referring to Sections 3, 4 and 101 to 104 of the
Evidence Act, the Court held that while dealing with the absence
of consideration, the Court shall have to consider not only
whether it believed that consideration did not exist but also
whether it considered the non-existence of the consideration so
probable that a reasonable man would, under the circumstances
of a particular case, could act upon the supposition that the
consideration did not exist. Once the defendant showed either by
direct evidence or circumstantial evidence or by use of the other
presumptions of law or fact that the promissory note was not
supported by consideration in the manner stated therein, the
evidentiary burden would shift to the plaintiff and the legal burden
reviving his legal burden to prove that the promissory note was
supported by consideration and at that stage, the presumption of
law covered by Section 118 of the Act would disappear. Merely
because the plaintiff came forward with a case different from the
one mentioned in the promissory note it would not be correct to
say that the presumption under Section 118 did not apply at all.
Such a presumption applies once the execution of the promissory
note is accepted by the defendant. The circumstances that the
plaintiffs case was at a variance with the one contained in the
promissory note could be relied by the defendant for the purpose
of rebutting the presumption of shifting the evidential burden to
the plaintiff. After referring to the catena of authorities on the
point, the Full Bench held:--
       
       "Having referred to the method and manner in
which the presumption under Section 118 is to be
rebutted and as to how, it thereafter disappears we shall
also make reference to three principles which are
relevant in the context. The first one is connected with
the practical difficulties that beset the defendant for
proving a negative, namely that no other conceivable
consideration exists. We had occasion to refer to this
aspect earlier. Negative evidence is always in some sort
circumstantial or indirect, and the difficulty or proving a
negative lies in discovering a fact or series of facts
inconsistent with the fact which we seek to disprove
(Gulson, Philosophy of Proof, 2nd Edition, p. 153
quoted in Cross on Evidence, 3rd Edition, page 78 Fn).

       In such situations, a lesser amount of proof than is usually
required may avail.  In fact, such evidence as renders the
existence of the negative probable may shift the burden on to the
other party (Jones, quoted in A Sarkar on Evidence, 12th
Edition, p. 870). The second principle which is relevant in the
context is the one stated in S.106 of the Evidence Act. That
section states that when any fact is especially within the
knowledge of any person, the burden of proving that fact is upon
him. It is very generally stated that, where the party who does
not have the evidential burden, such as the plaintiff in this case,
possesses positive and complete knowledge concerning the 
existence of fact which the party having the evidential burden,
such as the defendant in this case, is called upon the negative or
has peculiar knowledge or control of evidence as such matters,
the burden rests on him to produce the evidence, the negative
averment being taken as true unless disapproved by the party
having such knowledge or control. The difficulty or proving a
negative only relieves the party having the evidential burden from
the necessity of creating a positive conviction entirely by his own
evidence so that, when he produces such evidence as it is in his
power to produce, its probative effect is enhanced by the silence
of the opponent (Corpus Juris, Vol. 31, Para 113). The third
principle that has to be borne in mind is the one that when both
parties have led evidence, the onus of proof loses all importance
and becomes purely academic. Referring to this principles, the
Supreme Court stated in Narayan v. Gopal (AIR 1960 SC 100)
as follows:
       
       The burden of proof is of importance only where
by reason of not discharging the burden which was put
upon it, a party must eventually fail, where, however,
parties have joined issue and have led evidence and the
conflicting evidence can be weighed to determine which
way the issue can be decided, the abstract question of
burden of proof becomes academic.

       We have referred to these three principles as they are
important and have to be borne in mind by the Court while
deciding whether the initial evidential burden under Section 118
of the Negotiable Instruments Act has been discharged by the
defendant and the presumption disappeared and whether the
burden has shifted and later whether the plaintiff has discharged
the legal burden after the same was restored.

       For the aforesaid reasons, we are of the view that where, in
a suit on a promissory note, the case of the defendant as to the
circumstances under which the promissory note was executed is 
not accepted, it is open to the defendant to prove that the case
set up by the plaintiff on the basis of the recitals in the promissory
note, or the case set up in suit notice or in the plaint is not true
and rebut the presumption under Section 118 by showing a
preponderance of probabilities in his favour and against the
plaintiff. He need not lead evidence on all conceivable modes of
consideration for establishing that the promissory note is not
supported by any consideration whatsoever. The words until the
contrary is proved in Section 118 do not mean that the defendant
must necessarily show that the document is not supported by any
form of consideration but the defendant has the option to ask the
court to consider the non-existence of consideration so probable
that a prudent man ought, under the circumstances of the case,
to fact upon the supposition that consideration did not exist.
Though the evidential burden is initially placed on the defendant
by virtue of Section 118 it can be rebutted by the defendant by
showing a preponderance of probabilities that such consideration
as stated in the pronote, or in the suit notice or in the plaint does
not exist and once the presumption is so rebutted, the said
presumption disappears. For the purpose of rebutting the initial
evidence burden, the defendant can rely on direct evidence on
circumstantial evidence or on presumptions of law or fact. Once
such convincing rebuttal evidence is adduced and accepted by the
Court, having regard to all the circumstances of the case and the
preponderance of probabilities, the evidential burden shifts back
to the plaintiff who has also the legal burden. Thereafter, the
presumption under Section 118 does not again come to the
plaintiffs rescue. Once both parties have adduced evidence, the
Court has to consider the same and the burden of proof loses all
its importance.       
       
       12. Upon consideration of various judgments as noted
hereinabove, the position of law which emerges is that once
execution of the promissory note is admitted, the presumption
under Section 118(a) would arise that it is supported by
consideration. Such a presumption is rebuttable. The defendant
can prove the non-existence of consideration by raising a probable
defence. If the defendant is proved to have discharged the initial
onus of proof showing that the existence of consideration was
improbable or doubtful or the same was illegal, the onus would
shift to the plaintiff who will be obliged to prove it as a matter of
fact and upon its failure to prove would dis-entitle him to the
grant of relief on the basis of the negotiable instrument. The
burden upon the defendant of proving the non-existence of the
consideration can be either direct or by bringing on record the
preponderance of probabilities by reference to the circumstances
upon which he relies. In such as event the plaintiff is entitled
under law to rely upon all the evidence led in the case including
that of the plaintiff as well. In case, where the defendant fails to
discharge the initial onus of proof by showing the non-existence of
the consideration, the plaintiff would invariably be held entitled to
the benefit of presumption arising under Section 118(a) in his
favour. The court may not insist upon the defendant to disprove
the existence of consideration by leading direct evidence as
existence of negative evidence is neither possible nor
contemplated and even if led is to be seen with a doubt. The bare
denial of the passing of the consideration apparently does not
appear to be any defence. Something which is probable has to be
brought on record for getting the benefit of shifting the onus of
proving to the plaintiff. To disprove the presumption the
defendant has to bring on record such facts and circumstances
upon consideration of which the court may either believe that the
consideration did not exist or its non-existence was so probable
that a prudent man would, under the circumstances of the case,
shall act upon the plea that it did not exist. We find ourselves in
the close proximity of the view expressed by the Full Benches of
the Rajasthan High Court and Andhra Pradesh High Court in this
regard.
       
      Hence, in view of admission of execution of the Ex.A1 promissory
note, the burden is on the defendant to prove his case.  Besides himself,
the defendant examined DWs.2 to 4 to show that the said Mohana Rao  
was in the habit of lending money, but did not speak of non-passing of
consideration.  On the other hand, it is the case of the defendant that he
was borrowing amounts from Mohana Rao and the suit promissory note   
was executed for a much higher amount than the amount borrowed by  
him.  That borrowing of higher amount was also not proved by the
defendant in the instant case by producing any documentary evidence.  In
view of the same, the judgment and decree passed by the trial Court
cannot be set aside and accordingly it is affirmed.
        Consequently, the Appeal Suit is dismissed with costs.  The
miscellaneous petitions, if any, pending in this appeal shall stand closed.
________________________   
A.RAMALINGESWARA RAO, J       
Date:  20th April 2018