Karnataka High Court
C. Sesha Reddy vs T. Basavana Goud on 20 February, 2003
Equivalent citations: AIR2003KANT335, I(2004)BC19, ILR2003KAR5067, 2003(6)KARLJ409, AIR 2003 KARNATAKA 335, 2003 AIR - KANT. H. C. R. 1443, (2004) 2 ICC 5, (2004) 1 CIVILCOURTC 23, (2003) 6 KANT LJ 409, (2003) 2 KCCR 1427, (2004) 1 BANKJ 250, (2003) 4 RECCIVR 15, (2004) 1 BANKCAS 19, (2003) 7 INDLD 320
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER 18 AND RULE 3A -- PROVISO -- Plaintiff examined the scribe as PW1 and later on examined himself as PW2 -- In the absence of necessary permission as contemplated under Rule 3A should the evidence of the plaintiff recorded to be ignored in toto or whether the lapse is only a curable irregularity -- whether provisions of Order 18 Rule 3A are mandatory and whether non compliance of same would render evidence a nullity. HELD -- A close reading of the provisions of Rule 3A indicates that the insistence of examination of a party as a first witness is not an inviolable rule and the rule itself provided an exception. May be that the Court has to assign reasons for giving such permission. In the instant case, there is a breach of Rule 3A, but at the same time of examination of the plaintiff as PW2, the defendant has not objected and the evidence has been recorded. Thereby in the context of facts, it should be construed that there has been an implied permission granted by the Court. The provisions of Order 18 Rules 3A are not mandatory and does not necessarily visit with the consequences rendering such evidence a nullity. Though, there has been a breach of provision of Rule 3A, the evidence of the plaintiff cannot be ignored and over-looked as a nullity and it is only a venial breach not vitiating the effect of evidence. Appeal allowed. JUDGMENT K. Sreedhar Rao, J.
1. This second appeal arises out of the Judgment and Decree passed by the Civil Judge at Bellary in O.S. No. 4/1990 and set aside by the District Judge at Bellary in R.A. No. 10/1992 by an order of remand. The appellant is the defendant, The respondent is the plaintiff filed a suit in O.S. No. 4/90 for recovery of a sum of Rs. 56,000/- with costs and interest on the strength of a pronote executed by the defendant. It was the contention of the plaintiff that for meeting domestic expenses a loan of Rs. 56,000/- was borrowed on 12-12-1986 and a pronote to that effect was executed with an undertaking to repay the same with interest at 24% p.m.
2. The defendant in the written statement stoutly denied the execution of the pronote and passing of the consideration. It is said that defendant is the close friend of the plaintiff and he used to assist the plaintiff in a shop as a courtesy and that signatures of the defendant were taken by the plaintiff under some false pretext on stamped blank papers. One such signed stamped blank paper has been converted into a pronote for filing the suit.
3. The trial Court formulated as many as five issues. The issues No. 1 and 2 relate to the execution of the pronote and payment of consideration as alleged by the plaintiff. Issue No. 3 pertains to the liability to pay the interest. Issue Nos. 4 and 5 are the formal issues. The trial Court at the time of judgment framed an additional issue regarding the capacity of the plaintiff to lend the loan and based upon the evidence on record, the trial Court upheld the execution of pronote by the defendant and rejected his defence version. But, on the basis of the extent of property owned by the plaintiff and the defendant came to the conclusion that plaintiff had no capacity to lend the loan and thus dismissed the suit.
4. In appeal, it was contended before the District Judge that in respect of additional issues no opportunity is given to the parties to meet the case and thus the formulation of additional issue and the finding given therein are illegal. The District Judge upheld the contentions and set aside the Judgment and Decree and remanded the matter to give opportunity to the parties to lead evidence on the additional issue. Aggrieved by the said Judgment and Decree, the present appeal is filed.
5. During the course of evidence, an interesting development took place, and it is of some merit for consideration in this appeal. The proviso of Order 18 Rule 3A declares that the party has to examine himself and later should examine his witnesses. However, with the permission of the Court, he can examine his witness in the beginning and later on examine himself. The Court has to give reasons, while granting such permission. In the instant case, the plaintiff examined the scribe as PW 1. He did not support the case of the plaintiff regarding the execution of the pronote by the defendant. Therefore, the witness was treated as hostile, leading questions were put. Later on, the plaintiff has examined himself as PW 2. Now, a question would arise whether in the absence of necessary permission as contemplated under Rule 3A should the evidence of the plaintiff recorded to be Ignored in toto or whether the lapse is only a curable irregularity.
6. A close reading of the provision of Rule 3A indicates that the insistence of examination of a party as a first witness is not an inviolable rule and the rule itself provides an exception. May be that the Court has to assign reasons for giving such permission. In the instant case, there is a breach of Rule 3A, but at the time of examination of the plaintiff as PW 2, the defendant has not objected and the evidence has been recorded. Thereby in the context of facts, it should be construed that there has been an implied permission granted by the Court. The provisions of Order 18, Rule 3A are not mandatory and does not necessarily visit with the consequences rendering such evidence a nullity. The decision of the Patna High Court In the case of Pravesh Kumari v. Rishiprasad reported in AIR 1986 Patna 315 supports the view taken by me. Though, there has been a breach of provision of Rule 3A, the evidence of the plaintiff cannot be ignored and over looked as a nullity and it is only a venial breach not vitiating the effect of the evidence.
7. On merits, I find that both the trial Court and the District Court have failed to appreciate the evidence in proper perspective. There is a burden on the plaintiff to establish the execution of pronote and passing of consideration. Of course, the pronote is a Negotiable Instrument and under Section 118 of the N.I. Act. If the execution of a pronote is admitted, the presumption under Section 118 could be Invoked regarding the consideration. In the instant case, the execution of the pronote is in dispute. The plaintiff has examined PW 1, scribe of the pronote, but he has not supported the plaintiffs case. His evidence discloses that on 12-12-1986 when he was working in the shop of the defendant the plaintiff brought a blank pronote signed by the defendant and requested him to fill up the matter by giving the details of the transaction. Accordingly, he has filled up the pronote. PW 1 says that the defendant was not present at the time when he filled up the contents of the pronote and his evidence suggests that no consideration was paid in his presence. In the cross examination of PW 1 by the plaintiff he explains that he filled up the blank pronote at the dictates of the plaintiff since the defendant and the plaintiff were close friends, he thought that the transaction narrated by the plaintiff is a bona fide one. Nothing is elicited in the cross examination of PW 1 to impeach his veracity and to reject his evidence. Merely because PW 1 does not supports the plaintiffs case, it cannot be said that he is a hostile witness and speaking falsehood. There is no material in the evidence of PW 1 to disbelieve his veracity. The evidence of hostile need not be rejected in toto. The evidence of PW 2 is only a self serving evidence and according to his version the pronote was executed in the shop of the defendant in his presence by PW 1 and that the consideration amount was also paid under the pronote and two witnesses, who were present have attested the pronote. The attesting witnesses are not examined. The version given by PW 2 is in conflict with the evidence of PW 1 . The presence of the defendant is denied by PW 1 and so also he does not support the theory of payment of consideration at the time when the pronote was executed. Therefore, considering the evidence of PW 1, I flnd that the plaintiff has failed to prove the case of execution of pronote and payment of consideration.
8. The trial Court has committed a mistake in framing an additional issue. In fact, it was not necessary to frame an additional issue. If there was any material on record regarding the capacity of the plaintiff to lend the loan as an incidental material that could have been discussed and considered. However, the trial Court committed a blunder in formulating an additional issue without giving opportunity to the parties and on surmises, comes to the conclusion that the defendant own large extents of land and there is no need for him to borrow and that the plaintiff himself is indebted to several banks and has no capacity to pay. This appears to be a perverse finding and framing of additional issue was unwarranted. The evidence on record clearly discloses that the plaintiff had failed to prove the execution of the pronote and payment of consideration. In fact, the evidence of PW 1 corroborates the contention of the defendant that he had only signed on the stamp and rest of the document was blank. Such an admission cannot be construed as an admission of the execution of the pronote. In that view, both the courts have not appreciated the evidence in a proper and a legal manner. The findings arrived at by the Courts below are perverse and illegal.
9. In the result, I allow the appeal. The Judgment and Decree of the District Judge is set aside and the decree of the trial Court is confirmed. Though not for the reasons stated by the trial Court but for the separate reasons stated above.
The parties to bear their own costs.