Andhra HC (Pre-Telangana)
Nalamothu Sayi Babu Naidu vs Chidipothu Krishnaiah on 13 March, 2003
Equivalent citations: AIR2003AP412, 2003(2)ALD700, 2003(3)ALT374, AIR 2003 ANDHRA PRADESH 412, (2003) 4 ANDHLD 396, (2003) 5 ANDH LT 260, (2003) 6 ALLINDCAS 747 (AP), 2003 (6) ALLINDCAS 747, (2003) 2 ANDHLD 700, (2003) 3 ANDH LT 374
JUDGMENT B. Prakash Rao, J.
1. The unsuccessful plaintiff is the appellant herein, who seeks to assail the judgment and decree in A.S. No. 38 of 1987 dated 20-12-1990 passed by the Additional District Judge, Ongole, reversing the judgment and decree in O.S. No. 54 of 1983 dated 24-4-1987 passed by the Subordinate Judge, Kandukur dismissing the suit filed by the plaintiff for recovery of certain sums.
2. Briefly narrated the averments in the plaint are that the appellant herein had filed a suit for recovery of a sum of Rs. 17,380/- being the principal on the foot of a promissory note dated 30-11-1982 executed by the respondent-defendant in favour of the appellant/plaintiff for a sum of Rs. 15,383/- repayable with interest at 12% per annum. The appellant filed the said suit on 1-10-1983 after issuing notice dated 1-6-1983 by the plaintiff and followed by a reply by the defendant on 24-6-1983. The defendant filed the written statement initially on 27-7-1984. Subsequently after taking permission by filing I.A. No. 701 of 1984 to inspect the suit document, the defendant filed additional written statement, with leave, on 15-11-1985. In the original written statement, the defendant raised a plea of total denial of the suit claim and also pleaded specifically as to the forging of his signature on the pronote. However, in the additional written statement the said plea was changed to that of a renewal of an earlier debt. In fact the trial was proceeded with even before filing of the additional written statement, and subsequently after filing of the additional written statement, witnesses were recalled and again they were participated in the trial. The Trial Court disbelieving the theory of renewal of earlier debt, decreed the suit whereas the Appellate Court accepted the plea of renewal of earlier debt, dismissed the suit.
3. Mr. G. Pedda Babu, learned Counsel appearing for the appellant submits that the defendant having raised a specific plea in his original written statement that his signature in the suit promissory note was forged, he cannot be permitted to raise a totally varying plea of renewal of earlier debt in the additional written statement and therefore the lower Appellate Court was not right in accepting the said plea, which is clearly barred by Order VI Rule 7 of the Code of Civil Procedure. He also sought to place reliance on the decision of a Division Bench of this Court in Hatim Attari v. Mrs. Sylvie Goudchau, 1969 (1) APLJ 484. On the other hand Mr. M. Ramaiah, learned Counsel appearing for the respondent submits that having regard to the acceptance of the plea of the defendant by the lower Appellate Court, this Court would not interfere with the same in this appeal.
4. Having considered the submissions made on either side and also perusing the material available on record, the main question that falls for consideration in this appeal is as to whether the defendant can be permitted to raise a plea varying with the earlier plea taken in the original written statement and the same is barred under Order VI Rule 7 C.P.C.
5. There is no dispute about the basic facts as to the filing of the suit on the foot of a promissory note dated 30-11-1982, which is marked as Ex.A1, and the same was executed for a sum of Rs. 15,800/-with 12% interest per annum thereon; prior to the suit the plaintiff issued a notice dated 1-6-1983, which is marked as Ex.A2 and reply by the defendant dated 24-6-1983, which is marked as Ex.A3 and that the suit was filed on 1-10-1983. After filing of the written statement on 27-7-1984, the defendant filed LA. No. 704 of 1984 for permitting him to inspect the suit document. After such inspection, the additional written statement was filed on 15-11-1985 after obtaining leave of the Court.
6. In the original written statement the plea of the defendant was that the defendant did not obtain any amount from the plaintiff and that the signature in the promissory note was a forged one, whereas in the additional written statement his plea was that the suit promissory note was one of a renewal of an earlier debt and therefore it is valid and enforceable. It is now well settled that the parties cannot be permitted to take varying pleas in the written statements inconsistent with each other, more so when a party has already taken a specific plea especially that of a forgery in regard to the suit document, he cannot turn round and come out with a plea by way of further pleading to the effect that the suit document is only a renewal of an earlier debt. Both these pleas run contrary to each other. Even though there is a principle that the defendant is entitled to raise an inconsistent plea, it would not go in support of raising such inconsistent pleas. As held by this Court in the judgment in Hatima Attari's case cited supra, no subsequent pleading should contain any allegation of fact inconsistent with the earlier pleading can be allowed to go on record. Having regard to the same, it is a clear case where the defendant has attempted to come with a totally different version of fact, which is not permissible. In view of the same it has to be held that the finding of the lower Appellate Court accepting the plea of the defendant that the suit document is only a renewal of an earlier debt is erroneous.
7. In the result, the Second Appeal is allowed with costs and the suit OS No. 54 of 1983 on the file of the Subordinate Judge, Kandukur is decreed as prayed for.