Andhra HC (Pre-Telangana)
Pullambotla Kasturibayamma vs Ramesh V. Parekh on 18 March, 2006
Equivalent citations: 2006(3)ALD805, 2006(3)ALT224
JUDGMENT D. Apparao, J.
1. This is a defendant's appeal against the decree and Judgment in O.S.No. 397 of 1986 on the file of the learned IInd Additional Subordinate Judge, Vijayawada, dated 02-07-1991, decreeing the suit against her for Rs. 32,000/- with subsequent interest and costs.
2. It is the case of the plaintiff that the defendant borrowed a sum of Rs. 10,000/- on 28-09-1983 and another sum of Rs. 10,000/- on 19-03-1984 from one M.N. Shaw of Viziawada for construction of Sharma Market near Samarangam Chowk and executed Exs.A-1 and A-3-two promissory notes, respectively. The defendant agreed to pay interest at 4.50% per month. The loans were arranged at the request of power of attorney of the defendant. Since M.N. Shaw requested the plaintiff to collect the amounts and therefore made endorsement of collection on the said pronotes vide endorsements, respectively, on 09-06-1986, whereupon the plaintiff got issued notice under Ex.A-3 claiming the amount, for which defendant gave a reply in Ex.A-4. Since the amount was not paid, he filed the suit.
3. The defendant's general power of attorney resisted the suit on the ground that the amounts covered under two pronotes were discharged. No amount need be paid under the said pronotes. At the time of borrowal, M.N. Shaw specifically stated that the amount was unaccounted and he would not pass any receipt for payments. In view of the understandings, he did not insist for receipts. M.N. Shaw evaded to return pronotes even after, the amounts were paid. The transfer endorsements are not enforceable in view of the settlement between them. He was made to pay Rs. 4,000/- to the Advocate under four receipts. M.N. Shaw promised to with draw the suit. But colluding with the plaintiff in order to cause loss to him, filed the suit. The rate of interest claimed is highly excessive and therefore, prayed for dismissal of suit with costs.
4. Upon the pleadings, the trial Court framed the following issues:-
(1) Whether the discharge pleaded by the defendant is true, valid and binding on the plaintiff?
(2) Whether the transfer endorsement is true, valid and binding on the defendant?
(3) Whether the payment pleaded by the defendant after filing of the suit is true, valid and binding on the plaintiff?
(4) Whether the interest claimed is usurious and excessive?
(5) To what relief?
5. The plaintiff in proof of his case, examined himself as P.W.1 and the original promissee as P. W.2 and filed Exs. A-1 to A-5. Refuting their evidence, the defendant was examined herself as D.W.1 and filed Exs. B-1 to B-3, counter foils of the cheques and signature of defendant on the backside of Ex.B-2. The trial Court, after considering the plea of discharge and the fact that the plaintiff admitted an amount of Rs. 1,000/- was paid, granted a decree for Rs. 32,000/- with subsequent interest and costs.
6. Aggrieved by the said Judgment, the defendant preferred this appeal, contending that the trial Court did not appreciate the facts in correct perspective. Originally, her husband was arrayed as the defendant representing her as general power of attorney, and after his death, when she tried to file additional written statement, the trial Court did not allow her petition. The important plea that was taken by her was that she did not authorize her husband to incur debt on her behalf. She did not give any power of attorney to him. The trial Court failed to consider whether the husband can transact on behalf of wife without any authority whatsoever. The observation that she was trying to take a different plea, changing her nature of defence, is incorrect. Ex.B-3 is the only power of attorney given by her to her husband to pursue O.S.No. 169 of 1974. She did not permit her husband to transact on her behalf in the suit. Therefore, she prayed that the suit be dismissed by allowing the appeal.
7. The points that arise for consideration are:
(1) Whether the defendant has authorized her husband to borrow amounts on her behalf and execute promotes?
(2) Whether the defendant can plead contrary to what her husband pleaded in his written statement?
(3) Whether the plaintiff is entitled to the suit amount?
8. POINTS:- It is an admitted fact that Appajirao, who executed two pronotes Exs. A-1 and A-3, is the husband of defendant-appellant. The suit was filed alleging that Appajirao borrowed amounts under the pronotes Exs. A-1 and A-3 on behalf of Kasthuri & Sons. It is not in dispute that the appellant Kasturibayamma, the wife of Appajirao, was the proprietor of Kasturi & Sons. A perusal of the pronotes shows that Appajirao representing the proprietary concern signed on them. He did not mention as to the exact capacity under which he signed the pronotes. Even in the plaint, there was no averment that Appajirao has borrowed the amount on behalf of Kasturi and sons or that it was executed on behalf of the defendant.
9. The learned Counsel for the appellant contended that the amount was not borrowed by the defendant. She did not execute the pronotes. Her husband has executed the pronotes. He did not mention that it was on her behalf. Therefore, it does not bind her.
10. Evidently, the plaintiff did not allege in his plaint that the amount was borrowed on behalf of the defendant. According to him, he represented as a general power of attorney holder. The said fact was not mentioned in the pronotes. There was no document evidencing that a general power of attorney was executed by the defendant. No doubt, she executed General Power Attorney Ex.B-3 but it pertains to a suit in O.S.No. 169 of 1974 on the file of the learned Principal Subordinate Judge, Viziawada. That has nothing to do with the present suit transaction.
11. The plaintiff filed the suit with the following cause title:
P. Kasturibayamma, Prop. Kasturi & Sons, Rep. By Power of Attorney Pullambhotla Appajirao When Appajirao, the husband of defendant died, he simply deleted the words "Rep. by Power of Attorney Pullambhotla Appajirao" in the cause title exposing her name as the defendant. Unfortunately, when she intended to file her additional written statement on her own behalf, she, having been arrayed as the defendant of on deletion, the name of her husband Appajirao, the trial Court did not allow the application. It is her case that she never authorized her husband Appajirao to borrow amount or to transact on her behalf. No power of attorney was executed on her behalf. The trial Court dismissed the application in I.A.No. 256 of 1991 by orderdt. 03-06-1991, on the ground that she could not take a different plea than that was taken by her husband Appajirao. Undoubtedly, no revision was preferred against the orders in I.A.No. 256 of 1991. Necessarily, when the defendant intends to project her case by taking plea that she was not liable to pay the suit amount, she should have been given a chance to file her written statement. More so, when she did not give any power of attorney in favour of her husband to prosecute the suit, obviously, he has no right to file written statement or contest the matter on behalf of the defendant Kasturibayamma. Necessarily, it caused prejudice as well as injustice to her and she was unable to project her case in right perspective. When P.Ws.1 and 2 were examined, no cross-examination was made as to the pleas taken by her. Equally, in view of the fact that Kasturibayamma was not allowed, the plea to be taken. The trial Court also did not consider evidence of the defendant when she was examined as D.W.1. In her evidence, she deposed that she did not authorize her husband to borrow amount or transact on her behalf. This contention was not adverted to by the trial Court, may be due to the fact there was no pleading. Undoubtedly this goes to the root of the matter. Unless her plea by way of additional written statement is received, appreciation of evidence cannot be made as per the case projected by her in the suit. In spite of the contention taken by the wife that she was not liable, the trial Court did not advert to the said finding.
12. It may be stated that said contention could not have been taken in the written statement by Appajirao as his plea was that he discharged the amount. In the light of the said contention, there was no occasion for the Court to consider the plea whether Appajirao had borrowed the amount, if so under what authority.
13. It is fundamental that no relief can be given without pleadings. While it is not necessary that the Court should insist on precise pleadings, having regard to many factors such as poverty, ignorance, illiteracy, etc. It is not, however, conceded that without pleading, which is understandable by the Court as well as by the opposite party, issues must be raised or framed and even without evidence supporting such unraised Tissues, the Court should give relief.
14. I reiterate that in view of the fact that the defendant was earlier was not given any opportunity to file her written statement in the sense that though her husband was appearing as power of attorney for which there was no evidence, on his death, she should have been allowed to file written statement, which she has every right. Provisions for the amending of pleadings and giving opportunity to all the parties concerned to meet exact situations, resulting from amendments, are meant for promoting the ends of justice and not for defeating them. If the plaintiff seeks to alter the nature of the suit itself by deleting the name of the "power of attorney holder" and to introduce indirectly, an entirely new inconsistent case, amounting virtually to the substitution of a new plaint, and new cause of action implies what was originally there subsists, the defendant has to be given opportunity to file written statement and canvass her case. All amendments should be allowed which are necessary for determination of the real controversy in the suit. The trial Court has committed illegality in not allowing the additional written statement by the defendant. This resulted prejudice to the case of defendant. The defendant Kasturibayamma is entitled to file written statement in her own right as she was exposed as defendant on the death of her husband by deleting the words "General Power of Attorney Holder".
15. A party, who does not file any remedy of revision against the order, can challenge the validity of the order available to him in law. Section 105(1) of C. P.C. enables the party to set-forth any error, defect or irregularity in any order affecting the decisions of the case. Any error, defect or irregularity in any order can be challenged in an appeal against decree. Section 105 enacts that every interlocutory order made in the course of a suit or other proceeding which has not been appealed from because no appeal lay or because even though an appeal lay, an appeal was not taken, except an order of remand, can be attacked in an appeal from the final decree on the ground that there is an error, defect or irregularity in it; and that such error, defect or irregularity has affected the decision of the case.
16. Affecting the decision of the case means affecting the decision of the case on merits. Such error, defect or irregularity in the order, which has affected the decision of the case, may be set forth as aground of objection in the memo of appeal, which may be filed against the decree. In other words, error, defect or irregularity in any order can be challenged in an appeal against the decree by taking a ground of objection in the memo of appeal.
17. Since I found that the trial Court has committed gross irregularity in not allowing the application filed by the defendant in filing her additional written statement, the Judgment is vitiated. It resulted in substantial injustice and affected the very result of the suit. I feel this is a fit case where the party to be given opportunity to canvass their pleading. The trial Court should also consider the pleas raised by the defendant and see how far they are sustainable. The trial Court shall proceed with the matter uninfluenced by any opinion expressed in this appeal.
18. In the result, the appeal is allowed setting aside the decree and judgment in O.S.No. 397 of 1986, dated 02-02-1991. Consequently, the application in I.A.No. 25'6 of 1991 is allowed directing the trial Court to receive the additional written statement filed by the appellant-defendant. The plaintiff could also be permitted to file re-joinder if any. The trial Court shall frame necessary issues. It shall give opportunity to both the parties to lead their evidence and dispose of it according to law. The appellant is entitled to Court Fee paid in the appeal. Costs of the appeal shall abide by the result of the suit.