Sri .G.Venkateswarulu

IN THE COURT OF THE SENIOR CIVIL JUDGE :: PENUKONDA

Present: Sri G. Venkateswarlu,

Senior Civil Judge, Penukonda.

Wednesday, the 16 th day of September, 2015

O.S.No.140/2014

Between:-

G.M.Gayathri Devi, w/o G.V.Mukunda Rakumarlu, aged about 45 years, cultivation, Resident of D.No.4-1012, Z.P.High School, Gorantla, now residing at D.No.1-654, 2nd Road, Near Maszid Circle, Anantapuramu City & Dist. … Plaintiff

Vs.

A.Gangadhar (died) by LRs.

1. A.Aswarthamma, w/o Late A.Gangadhara, Hindu, aged about 52 years

2. A.Ramesh, s/o Late A.Gangadhara, Hindu, aged about 32 years Both are Residents at D.No.5-58, Upstairs, backside of Post Office, Gokulam, Puttaparthy town & Mandal, Anantapuramu Dist. … Defendants

This suit coming on 7-9-2015 for final hearing before me in the presence of Sri D.Nagaraju, learned Advocate for Plaintiff and of

Sri C.Venkataramanappa, learned Advocate for the Defendants, upon perusing the material on record and having stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

1. This is a suit for recovery of Rs.1,72,000/- being principal and interest due under the suit pronote dt. 8-9-2011 said to have been executed by the husband of D.1 in favour of the plaintiff for Rs.1,00,000/-, costs and further interest.

2. The averments of the plaint in brief are that the husband of D.1 and father of D.2 by name Gangadhar, during his lifetime borrowed a sum of

Rs.1,00,000/- from the plaintiff on 8-9-2011 agreeing to repay the same with interest at 24 % per annum and in consideration thereof he executed the suit pronote in favour of the plaintiff on the even date to that effect. Thereafter 2

Gangadhar died on 13-2-2013 without discharging the said debt.

Subsequently, the plaintiff demanded the defendants 1 and 2 to discharge the said debt, but the defendants failed to pay the said debt. The plaintiff also got issued a legal notice on 26-12-2013 to the defendants. The defendants issued a reply notice dt. 26-5-2014 to the said legal notice, but they have not paid the said amount. The estate of Gangadhar is in the hands of the defendants. Hence, this suit.

3. The 2nd defendant filed his written statement denying all the allegations made in the plaint save those are specifically traversed in the written statement. The 1st defendant adopted the written statement of the 2nd defendant by filing a memo. The 2nd defendant submits that he is not aware of his father Late Gangadri borrowing the loans from others including the plaintiff. The loans availed from the plaintiff and others were not for the benefit of the family of A.Gangadri. He and his mother came to know of the loan given by the plaintiff to the father of the 2nd defendant after his demise.

Out of Rs.1,00,000/- even a single rupee was not spent for the benefit of the legal heirs of Gangadri. So, there is no moral obligation to discharge the debt of Gangadri by his legal representatives. Gangadri was uneducated and used to affix his L.T.I. on the documents. The alleged suit promissory note is a creation of the plaintiff with the help of her husband

J.V.Mukundarakumarulu and the attestor B.Manjula. The said Manjula was having illegal intimacy with the deceased A.Gangadri. The said Manjula might have borrowed the amount of Rs.1,00,000/- from the plaintiff for her daughter’s marriage and might have forged the signatures of Gangadri on the suit pronote.

4. The 2nd defendant further submits that after the death of Gangadri the plaintiff in collusion with Manjula created the suit promissory note and forced the deceased Gangadri to pay the suit promissory note amount. In view of the illegal and forcible demands of the plaintiff and her husband, Gangadri 3 committed suicide on 23-2-2013. The said suicide news of Gangadri was also published in Andhra Jyothi and Sakshi newspapers on 24-2-2013. An enquiry was also held by the R.D.O., Kadiri in that regard. Gangadri was an agriculturist, but the plaintiff claimed interest at 24 % per annum, for which the plaintiff is not entitled. Gangadri was assigned Ac.2-50 cents of land in

S.No.697-2 in Puttaparthy revenue village by the Government. There is no cause of action to file the suit. So, the suit is liable to be dismissed.

5. On the strength of the above pleadings, my learned predecessor settled the following issues for trial :

(1) Whether deceased Late A.Gangadri borrowed Rs.1,00,000/-

from plaintiff and executed suit promissory note agreeing to repay with interest at 24 % p.a. ?

(2) Whether defendants succeeded the estate of A.Gangadri

and they are in possession and enjoyment ?

(3) Whether the amount was borrowed for joint family purpose

and binding on defendants ?

(4) Whether plaintiff is entitled to suit claim ?

(5) To what relief ?

6. Heard arguments of both side counsel. Perused the evidence.

7. During the trial, the plaintiff examined herself as PW.1 and got marked

Exs.A.1 to A.5. On the side of the defendants, the 2nd defendant examined himself as DW.1 and got marked Exs.B.1 to B.4.

8. Issue Nos.1 to 3 : All these issues can be grouped-up and discussed together for the sake of convenience and brevity. In a suit on pronote, the initial burden lies on the holder of the instrument to prove its execution.

PW.1 reiterated the plaint averments in her chief-examination affidavit filed in lieu of the chief examination. She also spoke about Exs.A.1 to A.5. PW.2, the attestor of Ex.A.1 pronote supported the case of the plaintiff. The evidence of PWs.1 and 2 is that the husband of D.1 and father of D.2 by name A.Gangadhar, during his lifetime borrowed a sum of Rs.1,00,000/- from PW.1 on 8-9-2011 agreeing to repay the same with interest at 24 % 4 per annum and executed Ex.A.1 promissory note in favour of PW.1 on the same day. Gangadhar himself scribed Ex.A.1 pronote. PW.2 attested

Ex.A.1 pronote. Subsequently, Gangadhar died on 13-2-2013 leaving behind him the defendants as his legal representatives. Gangadhar used to come to the house of PW.2, so PW.1 came to know him. PW.2 further deposed that she knows the plaintiff since 6 years and the 1st defendant since 8 years.

The 1st defendant own lands. The plaintiff came to know the 1st defendant through her (PW.2). Gangadhar was also called as Gangadri, but he signed as Gangadhar in Ex.A.1. But, she has not filed any document to show that

Gangadhar was also called as Gangadri. She recommended to the plaintiff to lend money to Gangadhar. PWs.1 and 2 denied the suggestions given by learned counsel for defendants as to the contentions of the defendants.

9. The testimony of PW.2 is consistent and corroborating with the evidence of PW.1 in all material particulars. No ill will or motive is established against her. Nothing was elicited in her cross-examination to disbelieve or discredit her testimony. Her testimony therefore cannot be discarded. It can be, therefore held that the plaintiff proved execution of

Ex.A.1 promissory note. Once execution of the instrument is proved, the burden shifts on to the defendants to prove the non-existence of consideration there under.

10. DW.1 also reiterated the written statement averments in his chief- examination affidavit filed in lieu of the chief-examination. He also spoke about Exs.B.1 to B.4. He deposed that his father was Ontipi Gangadri, but not A.Gangadhar.

11. Further, the defendants changed their stand in their evidence. In other words, they have taken inconsistent stands in their written statement and evidence. As aforesaid, in the written statement, the defendants contend that they are not aware of the fact that the husband of D.1 and 5 father of D.2 by name Late Gangadri borrowing loans from others including from the plaintiff. The said loans borrowed from the plaintiff and others are not for the benefit of the family of Gangadri. The defendants came to know of the loan of the plaintiff after the demise of Gangadri. So, they have no objection to proceed against the estate of the deceased A.Gangadri by the plaintiff. They further contend that the attestor B.Manjula was having illegal intimacy with the deceased A.Gangadri and she might have borrowed the amount of Rs.1,00,000/- from the plaintiff for her daughter’s marriage and might have forged the signature of A.Gangadhar on the suit pronote. They also contend that after the death of A.Gangadri the plaintiff with the collusion of B.Manjula created the suit pronote and forced the deceased A.Gangadri to pay the pronote amount. The defendants utterly failed to explain how the plaintiff forced the deceased A.Gangadri for the suit pronote amount by creating the suit promissory note after the death of A.Gangadri. But, surprisingly, in the evidence DW.1 deposed that he does not know PW.2

Manjula.

12. The defendants also filed Exs.B.1 to B.4 to establish that the husband of D.1 and father of D.2 is Ontipi Gangadri and not A.Gangadhar. Ex.B.1 is

D-Namuna issued to Gangadri s/o Gangappa in respect of Ac.2-57 cents of land in S.No.697/2 of Puttaparthy. Exs.B.2 and B.3 are the photo copies of paper clippings of Sakshi and Andhra Jyothi newspapers, reporting the suicide of Gangadri. Ex.B.4 is the title deed passbook issued in favour of

Ontipi Gangadri in respect of Ac.2-57 cents of land in S.No.697/2. It is significant to note that the defendants admittedly got issued Ex.A.5 reply notice to Ex.A.2 legal notice of the plaintiff. As could be seen from Ex.A.5 reply notice, the defendants 1 and 2 unequivocally admits that the 1st defendant is the wife and 2nd defendant is the son of the deceased

A.Gangadhar. Even in the evidence DW.1 admits that his surname is Avvari.

His paternal grand father’s name is Ontipi Ganganna. He does not know 6 whether there is any other person by name Gangadri apart from his (DW.1) father in their (DW.1) Gokulam street, Puttaparthy. He does not know whether he has not shown his father’s name as Gangadri instead of

Gangadhar in the short cause title and full cause title in the written statement.

13. Moreover, once execution of the instrument is proved, the presumption u/s.118 (A) of Negotiable Instrument Act automatically follows and it operates with more vigor and shut out all the explanations sought to be given by the defendant. Our Hon’ble High Court in a decision reported in

V.Surya Rao and others Vs. Guttula Gopala Krishna and others (Hon’ble

Justice Sri B.Prakash Rao)1 held that “two types of cases may arise. One

where there is a denial as to the execution and pleading forgery and

two, while admitting the instrument explain the circumstances.

Therefore subject to proving otherwise, the presumptions follow in

both the matters with variation. Normally, one comes across with

both the plea of total denial and then with some explanation by way

of defence, which run totally contradictory. Though a defendant is

entitled to raise contradictory pleadings in defence, however, the

same vary from case to case. Especially in the case of negotiable

instruments, such pleas have to be strictly scrutinized in a proper

perspective within the limitations prescribed under the law and

should not allow the defendant to go scot free with unsustained

pleas. Therefore, to restrict the enquiry, the law contemplates such

presumption and once the instrument is proved, all the presumptions

follow. Shifting the burden apart, it certainly casts doubts on the

bona fides in respect of pleas like denying the very note on the plea

of forgery and then coming out with some explanation. In such

cases, if due execution of the instrument ones proved the

1 1999 (4) ALT, 480 7

presumption operates with more vigor and it should shut out the

explanation sought to be given. The enquiry into a plea of forgery is

a comprehensive one, calling for detailed evidence and material on

either side and such plea of forgery even constitutes a serious

offence under the provisions of the Indian Penal Code. Therefore,

the conduct of the parties prior to the suit and their silence goes a

long way in considering the said plea. Claims based on forged

promissory notes cannot be ruled out. However, either way, the

instrument and the evidence thereon requires to be considered in its

proper perspective and in the circumstances of each case. Thus

looking from the principles as laid down, the presumption

automatically follows that once the execution is proved and

especially in the case where the plea of total denial of execution and

forgery has been negatived, the necessity to go into the

circumstances or the theories or the story as sought to be explained

by the defendant becomes very circumspective and narrow.”

14. Thus, in the facts and circumstances of the case and for the foregoing reasons, I hold that the husband of D.1 and father of D.2 by name

A.Gangadhar @ Gangadri borrowed Rs.1,00,000/- from the plaintiff and executed the suit promissory note agreeing to repay the same with interest at 24 % per annum. The defendants 1 and 2 succeeded to the estate of the deceased A.Gangadri and they are in possession and enjoyment of the same.

As could be seen from Ex.A.1 promissory note, the purpose of borrowing was mentioned as, for the needs of the promissor. Undisputedly, the deceased

Gangadhar @ Gangadri was the manager of the defendants’ family during his lifetime. So, it can be held that the deceased Gangadhar @ Gangadri borrowed the suit pronote amount for his joint family purpose. As such, the suit pronote debt is binding on the defendants. Hence, these issues are answered accordingly.

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15. That apart, the defendants contend that the deceased Gangadhar @ Gangadri was an agriculturist, so the plaintiff is not entitled to claim interest at 24 % per annum. The plaintiff has not denied or disputed that the deceased Gangadhar @ Gangadri was an agriculturist. As aforesaid, in support of the defendants’ claim, they also filed Exs.B.1 and B.4. So, it can be held that the deceased Gangadhar @ Gangadri was an agriculturist as defined u/s.3 of A.P. (A.A.) Agriculturist Relief Act, 1938. So, as per Sec.13 of the said Act, in any proceedings for recovery of a debt, the court shall scale down all interest due on any debt incurred by an agriculturist after commencing of this Act, so as not to exceed a sum calculated at 6 ¼ % per annum simple interest, at present, 12.5 % per annum. Thus, it is held that the plaintiff is not entitled to claim interest at 24 % per annum as she is entitled to claim interest only at 12.5 % per annum. Hence, this point is answered accordingly even though no issue was framed on this aspect.

16. Issue No.4 : It has already been held in the above issues that the husband of D.1 and father of D.2 by name Gangadhar @ Gangadri borrowed amount from the plaintiff and executed the suit pronote. It is not the case of the defendants that they discharged the suit pronote debt. As such, the plaintiff is entitled to claim the suit amount. Hence, this issue is answered accordingly.

17. Issue No.5 : In the result, the suit is partly decreed with proportionate costs for Rs.1,37,595/- and subsequent interest at 12.5 % per annum from the date of the suit till the date of decree and thereafter at 6 % per annum till realization on Rs.1,37,595/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the Open Court on this the 16 th day of September,

2015.

Senior Civil Judge,

Penukonda.

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Appendix of evidence

Witnesses examined for

PLAINTIFF DEFENDANTS

PW.1 : G.M.Gayathri Devi DW.1 : A.Ramesh PW.2 : B.Manjula

Exhibits marked for plaintiff

Ex.A.1 : Suit promissory note dt. 8-9-2011 Ex.A.2 : Office copy of legal notice 2 in number Ex.A.3 : Postal Receipts 2 in number Ex.A.4 : Acknowledgments 2 in number Ex.A.5 : Reply Notice

Exhibits marked for defendants

Ex.B.1 : D-Form issued by Revenue authorities to Ontipi Gangadri Ex.B.2 : Andhra Jyothi Paper dt. 24-2-2013 Ex.B.3 : Sakshi Paper publication dt. 24-2-2013 Ex.B.4 : Original Title Deed issued by Tahsildar, Puttaparthi to Ontipi Gangadri dt. 12-7-2007

S.C.J.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE :: PENUKONDA

Present: Sri G.Venkateswarlu,

Senior Civil Judge, Penukonda.

Thursday, the 20 th day of August, 2015

E.P.63/2011 in O.S.16/1989

Between:-

1. Gogula Ananthamma, w/o Gogula Sreeramulu, aged about 55 years

2. Gogula Venkateswara Rao, s/o G.Sreeramulu, aged about 30 years

3. Gogula Murali Krishna, s/o G.Sreeramulu, aged about 25 years All are Hindus, residents of Anantapur … Petitioners/D.Hrs.

Vs.

Gogula Sreeramulu, s/o G.Venkataramanappa, aged about 57 years, Hindu, Retired Forest Range Guard, at present residing at Bukkapatnam … Respondent/J.Dr.

This petition coming on 8-7-2015 for final hearing before me in the presence of Sri D.Pakkeera Reddy, Sri R.Sreekanth Reddy, Advocates for

Petitioners/D.Hrs. and of Sri M.Sreenivasulu, Advocate for the Respondent/J.Dr. and having considered this Court made the following :

O R D E R

This is an E.P. filed by the D.Hr. u/o.21, R.54 and 64 to 66 C.P.C. to attach and sell of the E.P. schedule properties for execution of the decree.

2. The D.Hrs. in the E.P. submit that previously they filed E.P.9/2004 and the same was dismissed as not pressed on 8-3-2006. Subsequently, they filed E.P.17/2006 and the said E.P. was closed on 19-4-2011 as the J.Dr. was committed to civil prison. The J.Dr. paid some amounts in the second E.P.

After deducting the payments made by the J.Dr., still the J.Dr. has to pay

Rs.2,63,111/- to the D.Hrs. towards maintenance amount at the rate of

Rs.1,000/- per month. As the J.Dr. has not paid the said amount, this E.P.

was filed for attachment and sale of the E.P. schedule properties.

3. The J.Dr. has partly denied the allegations made in the E.P. save those are specifically traversed in the counter. He submits that the E.P. schedule properties belong to S.Saradhamma of Bukkapatnam village and she 2 obtained pattadar passbook and title deed in her name and her name was mutated in the revenue records and she is in possession and enjoyment of the E.P. schedule property by raising crops. Knowing fully well of the said fact, the D.Hrs. filed this unjust E.P. only to harass the J.Dr. He is suffering from hypertension and other old age problems. In the second E.P., he paid some amounts and finally he was sent to civil prison as he was unable to pay the E.P. amount. It shows the financial capacity of this J.Dr. in paying the

E.P. amount. There are tombs of the ancestors of the J.Dr. in the E.P.

schedule property in an extent of 10 cents. The D.Hrs. suppressed the said fact. The boundaries mentioned in the schedule property are incorrect.

4. Point for consideration is : Whether the D.Hrs. are entitled to

bring the E.P. schedule properties for sale for execution of the

decree ?

5. Heard the arguments of both side counsel. Perused the evidence.

6. During the enquiry, the 1st D.Hr. examined herself as PW.1, but no documents were marked. On behalf of the J.Dr. he examined himself as

RW.1 and got marked Exs.B.1 to B.5.

7. POINT : In this E.P., some of the facts are not disputed. The admitted facts are that the 1st D.Hr. is the wife and D.Hrs.2 to 4 are the children of the J.Dr. The D.Hrs. filed this E.P. for execution of the maintenance decree passed against the J.Dr. in their favour. The D.Hrs.

previously filed E.P.9/2004 against the J.Dr. and the same was dismissed as it was not pressed on 8-3-2006. Subsequently, the D.Hrs. filed E.P. 17/2006 against the J.Dr. and it was closed on 19-4-2011 as the J.Dr. was committed to civil prison. In the second E.P., the J.Dr. has paid some amounts to the

D.Hrs. as shown in the E.P. The D.Hr. has still to pay the E.P. amount i.e.

Rs.2,63,111/- to the D.Hrs. towards maintenance amount. The 2nd D.Hr. is working as constable in Prohibition & excise Department, Ananthapuramu.

3

The 3rd D.Hr. is working as a Civil Constable. In the decree, the court created charge over the E.P. schedule properties.

8. PW.1 reiterated the E.P. averments in her chief examination affidavit filed in lieu of the chief examination. She deposed that she is looking after the litigation on behalf of the other petitioners also. The J.Dr. has to pay a sum of Rs.2,85,000/- towards arrears of maintenance as on today. The

Senior Civil Judge’s Court, Kadiri created charge in the suit over the E.P.

schedule property to an extent of share of the J.Dr. The J.Dr. executed a sham and nominal documents in favour of Saradha in utter contempt of the orders of the court to defraud the D.Hrs. So, the said document is void ab-initio. There is no any obstacle to sell the E.P. schedule property. As on the date of filing this E.P., the E.P. schedule lands had been in the name of her husband. She admits that the ‘A’ schedule property in O.S.16/89 is shown as house situated in Dharmavaram and a charge was created. She doesn’t know whether the said house is existing or not and who are in possession and enjoyment of the said house. She doesn’t know the value of the said house. Her husband is aged about 67 years. She denied the suggestions given by the learned counsel for J.Dr. as to the contentions of the J.Dr.

9. RW.1 also reiterated the counter averments in his chief-examination affidavit filed in lieu of the chief examination. He also spoke about Exs.B.1 to

B.5. He deposed that the D.Hrs. sold the house property situated at

Dharmavaram which is covered under the decree on 20-1-2001. The 1st

D.Hr. is under the care and custody of the D.Hrs.2 and 3 at Ananthapuramu town. He does not remember whether the sale deed was executed in favour of Saradamma after passing the decree. He does not know whether as on the date of the said sale deed there was charge on the property. He also denied the suggestions given by the learned counsel for D.Hrs. as to the case of the D.Hrs.

4

10. Coming to the documentary evidence Ex.B.1 is the certified copy of

Regd. Sale Deed dt. 24-1-2008 executed by the J.Dr. in favour of Srisailam

Saradamma for Rs.67,500/- in respect of Ac.1-89 cents out of the E.P.

schedule properties. Ex.B.2 is the certified copy of Regd. Sale Deed

dt. 24-1-2008 executed by the J.Dr. in favour of Srisailam Saradamma for

Rs.71,000/- in respect of Ac.2-00 out of the E.P. schedule properties. The total extent of the E.P. schedule properties is Ac.2-02 cents out of Ac.4-04 cents. Under Exs.B.1 and B.2, the J.Dr. sold total Ac.3-89 cents out of

Ac.4-04 cents to Saradamma. Ex.B.3 is the certified copy of the Regd. Sale

Deed dt. 20-6-2001 executed by the D.Hrs.2 and 3 in favour of

T.Hidayathulla for Rs.1,04,000/- in respect of the house in D.No.1-380, assessment No.301. Ex.B.4 is the Regd. Sale Deed dt. 21-3-1994 executed by P.Sreedevi in favour of Y.Venkatalakshmamma for Rs.27,300/- in respect of half of the E.P. schedule properties i.e. for an extent of AC.2-02 cents.

Ex.B.5 is the Regd. Sale Deed dt. 3-12-1999 executed by

Y.Venkatalakshmamma in favour of the J.Dr. in respect of Ac.1-89 cents out of the E.P. schedule properties of Ac.4-04 cents.

11. Further, the title of the J.Dr. and his vendor to the E.P. schedule properties is not disputed. The only point that arises for consideration is, whether a charge was created over the E.P. schedule properties by the court in the decree and if so, whether the J.Dr. is entitled to dispose of the E.P.

schedule properties subsequent to the creation of charge by the court. As could be seen from the certified copy of the decree filed by the D.Hrs., the

Senior Civil Judge’s Court, Kadiri created a charge over the ‘A’ schedule

properties mentioned in the decree to the extent of the defendant’s share.

There are total 8 items in the said ‘A’ schedule property including some of the E.P. schedule properties. For better understanding, I would like to give the particulars of the said ‘A’ schedule properties here under :

(1) House bearing D.No.1/92 with upstairs two portions; (2) Govt. wet land of 30 cents in S.No.1478; 5 (3) Govt. wet land of Ac.1-87 cents in S.No.1479-1; (4) Govt. wet land of 30 cent sin S.No.1479-2; (5) Govt. wet land of 20 cents in S.No.1479-3; (6) Govt. wet land of 50 cents out of AC.3-36 cents; (7) House bearing D.No.6/108; (8) House bearing D.No.6/139.

12. The present E.P. schedule properties are (1) Govt. Dry Ac.1-83 cents in S.No.1479-1; (2) Govt. Dry land of 30 cents in S.No.1479-2; (3) Govt. Dry land of 20 cents in S.No.1479-3; (4) Govt. Dry land of Ac.1-73 cents in

S.No.1479-4. So, it is obvious that the Senior Civil Judge’s Court, Kadiri created charge over the ‘A’ schedule properties on 9-8-1999 itself. The J.Dr.

sold away his lands to Srisailam Saradamma under Exs.B.1 and B.2 on 24-1-2008 i.e. after 8 or 9 years of creating charge over the said properties.

As could be seen from Exs.B.1 and B.2, there is no mention of the said charge created by the court over the said properties. When there is a charge over the E.P. schedule properties, the J.Dr. without paying the maintenance amount, shall not dispose of the charged properties.

13. Sec.100 of Transfer of Property Act reads as follows : “Charges:

Where immovable property of one person is by act of parties or

operation of law made security for the payment of money to another,

and the transaction does not amount to a mortgage, the latter person

is said to have a charge on the property and all the provisions

hereinbefore contained which apply to a simple mortgage shall, so

far as may be, apply to such charge.

Nothing in this section applies to the charge of a trustee on the

trust-property for expenses properly incurred in the execution of his

trust, and, save as otherwise expressly provided by any law for the

time being in force, no charge shall be enforced against any property

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in the hands of a person to whom such property has been transferred

for consideration and without notice of the charge.”

14. So, as per Sec.100 of Transfer of Property Act, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge. As aforesaid, as seen from Exs.B.1 and B.2, certified copies of Regd.

Sale Deeds executed by the J.Dr. in favour of Saradamma, there is no mention of the said charge created by the court over the said properties. So,

before ordering for sale of the E.P. schedule properties, notice should be

given to the purchaser of the E.P. schedule properties i.e. to Saradamma as to the sale of the E.P. schedule properties. This point is answered accordingly.

15. In the result, it is held that a charge was created by the court over the

E.P. schedule properties and when charge was in force, the J.Dr. sold away the E.P. schedule properties to Saradamma under Exs.B.1 and B.2. As such, notice should be given to the said Saradamma and she should be heard

before ordering sale of the E.P. schedule properties. Hence, issue notice to

the purchaser of the E.P. schedule properties by name Srisailam Saradamma.

Dictated to Stenographer Gr.II, transcribed by him, corrected and

pronounced by me in the Open Court on this the 20 th day of August, 2015.

Senior Civil Judge,

Penukonda.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BEHALF OF

PETITIONERS/D.Hrs. RESPONDENT/J.Dr

PW.1 : Gogula Ananthamma RW.1 :G.Sreeramulu

DOCUMENTS MARKED ON BEHALF OF PETITIONERS/D.Hrs.

- NIL - 7

DOCUMENTS MARKED ON BEHALF OF RESPONDENT/J.Dr.

Ex.B.1 : Certified copy of Sale Deed dt. 24-1-2008 executed in favour of Saradamma Ex.B.2 : Certified copy of Sale Deed dt. 24-1-2008 in favour of Saradamma for Rs.71,000/- Ex.B.3 : Certified copy of Sale Deed dt. 20-6-2001 in the name of T.Hidayathulla Ex.B.4 : Original Registered Sale Deed dt. 21-3-1994 in the name of Venkatalakshmamma, w/o Sada Siva Reddy executed by Sreedevi, w/o Adinarayana Reddy Ex.B.5 : Registered Sale Deed executed by Venkatalakshmamma in the name of Gogula Sreeramulu

S.C.J.

IN THE COURT OF THE SENIOR CIVIL JUDGE :: PENUKONDA

Present: Sri G. Venkateswarlu,

Senior Civil Judge, Penukonda.

Monday, the 31 st day of August, 2015

O.S.No.188/2014

Between:-

P.Venkatachalapathi, s/o P.Sreenivasulu, aged 38 years, Hindu, cultivation, business, Resident of Kothacheruvu Village and Mandal, Anantapur Dist. … Plaintiff

Vs.

M.Vijayabaskar, s/o M.Lakshmaiah, aged 45 years, Hindu, Business, Residing in D.No.2-135, Kothacheruvu Village and Mandal, Anantapur Dist. … Defendant

This suit coming on 20-8-2015 for final hearing before me in the presence of Sri C.R.Nagarjuna, Advocate for Plaintiff and of Sri M.Sreenivasulu, Advocate for the Defendant, upon perusing the material on record and having stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

1. This is a suit for recovery of Rs.3,36,500/- being the principal and interest due under the suit pronote dt. 5-1-2012 said to have been executed by the defendant in favour of the plaintiff for Rs.2,00,000/-, costs and further interest.

2. The averments of the plaint are that the defendant borrowed a sum of

Rs.2,00,000/- from the plaintiff on 5-1-2012 for his family necessities agreeing to repay the same with interest at 24 % per annum to the plaintiff or his order on demand and in consideration thereof he executed the suit promissory note in favour of the plaintiff on the even date to that effect.

Subsequently, in spite of repeated demands made by the plaintiff, the defendant has not paid the suit amount. So, the plaintiff got issued a legal notice to the defendant on 20-10-2014 and the said notice was served on the defendant. But, the defendant did not pay the said amount. The plaintiff 2 further submits that the defendant is not an agriculturist as he is doing business. As such, the interest is claimed at the contract rate.

3. The defendant has denied all the allegations made in the plaint save those are specifically traversed in the written statement. He submits that he has not borrowed any amount muchless the suit pronote amount from the plaintiff. He never received any notice from the plaintiff. He is an agriculturist having lands at his village. The plaintiff is doing Micro Finance business and used to collect heavy interest from the borrowers at

Kothacheruvu and surrounding villages. He borrowed amounts from the plaintiff and at that time the plaintiff used to take the signatures of this defendant on empty pronotes as security for the amounts borrowed by the defendant. But, he cleared all the debts contracted with the plaintiff. The plaintiff failed to return the empty pronotes. So, he has taken the matter

before the elders and the elders chastised the plaintiff. The plaintiff

promised in the presence of the elders to return the empty pronotes. But, the plaintiff did not return the same. The plaintiff taking advantage of the empty pronotes with him, filed this unjust suit to have wrongful gain even though the defendant paid the amount under the suit pronote. Absolutely no consideration was passed under the suit pronote. The attestors and scribe of the suit pronote are close associates of the plaintiff. There is no cause of action to file the suit. So, the suit is liable to be dismissed with costs.

4. On the strength of the above pleadings, my learned predecessor settled the following issues for trial :

(1) Whether the defendant borrowed a sum of Rs.2,00,000/-

from the plaintiff on 5-1-12 and executed the suit pronote ?

(2) Whether the defendant discharged the suit pronote debt ?

(3) Whether the defendant is an agriculturist and the interest

is to be scaled down ?

(4) To what relief ?

3

5. Heard arguments of both side counsel. Perused the evidence.

6. During the trial, the plaintiff examined himself as PW.1 besides examining PW.2 and got marked Exs.A.1 to A.3. On the side of the defendant, he examined himself as DW.1, but no documents were marked.

7. Issue No.1 : In a suit on pronote, the initial burden lies on the holder of the instrument to prove execution. PW.1 reiterated the plaint averments in his chief-examination affidavit filed in lieu of chief-examination. He also spoke about Exs.A.1 to A.3. PW.2 scribe of the suit pronote supported the case of the plaintiff. The evidence of PWs.1 and 2 is that the defendant borrowed a sum of Rs.2,00,000/- from PW.1 on 5-1-2012 for his family necessities agreeing to repay the same with interest at 24 % per annum to

PW.1 or his order on demand and on the same day the defendant executed

Ex.A.1 pronote in favour of PW.1 in the home of PW.1 at Kothacheruvu village. PW.2 scribed Ex.A.1 pronote. At the time of execution of Ex.A.1

PWs.1 and 2 and the father of PW.1 by name Sreenivasulu, the defendant were present there. The defendant brought the pronote form and the revenue stamps. The defendant subscribed two signatures on Ex.A.1. PW.1 further deposed that he knows the defendant since three years prior to

Ex.A.1 transaction. Except Ex.A.1 transaction, there are no other transactions between them. PWs.1 and 2 denied the suggestions given by the learned counsel for defendant as to the contentions of the defendant.

8. The testimony of PW.2 is consistent and corroborating with the evidence of PW.1 in all material aspects. No ill-will or motive established against him nor even suggested. Nothing was elicited in the cross- examination of PW.2 to disbelieve or discard his evidence. So, it can be held that the plaintiff proved the execution of the suit pronote. Once execution of the instrument is proved, the burden shifts on to the defendant to prove the non-existence of consideration there under.

4

9. DW.1 also reiterated the written statement averments in his chief- examination affidavit in lieu of chief examination. He deposed that he does not know PW.2 the scribe of the suit pronote. He admits that he has not issued any legal notice to the defendant for return of the discharged pronote.

He has not filed any document into the court as to the Micro Finance business of the plaintiff. Previously he borrowed money from the plaintiff. The signatures shown to him on Ex.A.1 pronote are of him. He denied the suggestions given by the learned counsel for plaintiff as to the case of the plaintiff.

10. It is the specific case of the plaintiff that the defendant received Ex.A.2 legal notice and kept quiet. In support of his contention, the plaintiff filed

Ex.A.3 corresponding postal acknowledgment. As could be seen from Ex.A.2 legal notice, the plaintiff has categorically made out his case. Had the contention of the defendant been a fact, definitely he would have issued a reply to Ex.A.2 legal notice denying the contents therein. The conduct of the parties prior to the suit and their silence goes a long way in considering the plea of non-execution or denial of consideration. An adverse inference therefore, can be drawn against the defendant that he admitted the contents of Ex.A.2 legal notice.

11. Further, undisputedly the defendant has not taken any steps to get back the alleged discharged pronote from the plaintiff. As stated supra, the defendant unequivocally admits his signatures on the suit pronote. Our

Hon’ble High Court in a decision in Duggineni Seshagiri Rao Vs. Kothapalli

Venkateswara Rao1 held that “a promissory note even if the name of the

payee left blank is a legal instrument if it is in writing and containing

an unconditional undertaking to pay the amount and signed by the

maker and delivered to the payee. Such an instrument can be

enforced. Holder of such instrument can fill-up the name of the

1 2001 (6) ALT 95 (DB) 5 payee and other particulars at a later stage”. It was further held that

“Sec.20 of the Negotiable Instrument Act lays down that when a

person signs and delivers to another person a paper stamped in

accordance with law relating to Negotiable Instrument, it becomes a

Negotiable Instrument even if it is wholly blank or written with

incomplete particulars. Similarly, Sec.42 of the Negotiable

Instrument Act even recognizes instrument issued in the name of

fictitious person to be a valid instrument. Even if one looks to the

definition of the promissory note and Sec.4 of the N.I. Act and one

would find that the requirement for making an instrument a

promissory note do not contain the requirement of naming a person,

which can be given in favour of a certain person or to bearer of the

instrument. That makes it clear that one who is holding the

document is the person who derives right out of that instrument.”

12. That apart, when once execution of the instrument is proved, the presumption under Sec.118 of N.I. Act automatically follows and it operates with more vigour and shut out all the explanations sought to be given by the defendant. Thus, in the facts and circumstances of the case and for the foregoing reasons, I hold that the defendant borrowed a sum of

Rs.2,00,000/- from the plaintiff on 5-1-2012 and executed the suit pronote.

The suit pronote is true, valid and biding on the defendant. Hence, this issue is answered accordingly.

13. Issue No.2 : The defendant has taken divergent stands in his written statement and evidence. Because, in one had he contends that he never borrowed any amount from the plaintiff under the suit pronote and never executed the suit pronote. On the other hand, he contends that previously he borrowed some amount from the plaintiff and gave empty pronotes to the plaintiff as security and subsequently he discharged the amount due under the suit pronote, but, the plaintiff failed to return the suit pronote. When the 6 defendant has taken the plea of discharge, naturally the burden lies on him to establish his plea. Except the self serving statement of the defendant, there is no any other cogent and convincing evidence on behalf of the defendant to consider his plea of discharge. The defendant has not examined the alleged mediators who convened panchayats in between the plaintiff and defendant with regard to the suit debt. The defendant does not say what is the amount paid by him to the plaintiff, under what document, in whose presence and on what date etc. He simply contends that he discharged the debt due under the suit pronote. When the defendant borrowed some amount from the plaintiff, Ex.A.1 came into existence. But, when the defendant is said to have discharged the suit amount, no scrap of paper came into light. The defendant has not put forth any explanation as to why he has not endorsed the alleged payment on the reverse of the suit pronote and why he has not obtained any receipt for the said payment when the suit pronote is not available for the time being. So, in the absence of any cogent and convincing evidence, basing on the oral testimony of the defendant, his plea of discharge cannot be countenanced. Thus, in the facts and circumstances of the case and for the foregoing reasons, it is held that the defendant failed to prove his discharge plea. Hence, this issue is answered accordingly.

14. Issue No.3 : The defendant contends that he is an agriculturist having agricultural lands in his village, so, the interest is to be scaled down.

The contention of the plaintiff is that the defendant is not an agriculturist as he is doing business. In support of his contention, the defendant has not filed any document as to his agricultural lands. As could be seen from Ex.A.1 pronote, it was mentioned that the defendant borrowed the amount for his needs. If really the defendant is an agriculturist, he could have filed some revenue records such as Pattadar Passbook and Title Deed etc. into the court to prove that he is an agriculturist. So, in the absence of any cogent and 7 convincing evidence, the agriculturist plea of defendant cannot be countenanced. Thus, it is held that the defendant failed to establish that he is an agriculturist. As such, the interest need not be scaled down. Hence, this issue is answered accordingly.

16. Issue No.4 : In the result, the suit is decreed for Rs.3,36,500/- with costs and subsequent interest at 12 % per annum from the date of the suit till the date of decree and thereafter at 6 % per annum till realization on

Rs.3,36,500/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the Open Court on this the 31 st day of August, 2015.

Senior Civil Judge,

Penukonda.

Appendix of evidence

Witnesses examined for

PLAINTIFF DEFENDANT

PW.1 : P.Venkatachalapathi DW.1 : M.Vijayabaskar PW.2 : B.Ramesh

Exhibits marked for plaintiff

Ex.A.1 : Pronote executed by the defendant dt. 5-1-2012 Ex.A.2 : Office copy of notice dt. 20-10-2014 Ex.A.3 : Postal acknowledgment

Exhibits marked for defendant

- NIL -

S.C.J.

IN THE COURT OF THE SENIOR CIVIL JUDGE :: PENUKONDA

Present: Sri G. Venkateswarlu,

Senior Civil Judge, Penukonda.

Monday, the 7 th day of September, 2015

O.S.No.132/2014

Between:-

P.V.Janardhan, s/o Pula Venkatachalapathi, 53 years, Hindu, Agriculturist, Venkataramanapalli, H/o Puleru, Gorantla Mandalam… Plaintiff

Vs.

1. P.Aswartha Reddy, 55 years, s/o Papagari Adi Reddy

2. P.Ananda Reddy, s/o P.Aswartha Reddy, 35 years, Both are Hindus, Agriculturists, Palagalapalli (v), Nesevandlapalli (P), Chilamathur Mandalam … Defendant

This suit coming on 31-8-2015 for final hearing before me in the presence of Sri D.V.Siva Reddy, Sri V.Dharmendra Reddy, learned Advocates for Plaintiff and of Sri C.Narendra Reddy, learned Advocate for the

Defendant, upon perusing the material on record and having stood over till this day for consideration, this Court delivered the following:

J U D G M E N T

1. This is a suit filed for recovery of Rs.1,49,059/- being principal and interest due under the suit promissory note dt. 14-6-2008 said to have been executed by the defendant in favour of the plaintiff for Rs.1,00,000/-, costs and further interest.

2. The averments of the plaint are that the defendants 1 and 2 borrowed a sum of Rs.1,00,000/- from the plaintiff on 14-6-2008 for their family and business necessities agreeing to repay the same with interest at 12 % per annum and in consideration thereof, they jointly executed the suit promissory note in favour of the plaintiff. Subsequently, the defendants paid

Rs.15,000/- on 6-10-2010 and Rs.10,000/- on 18-8-2011 to the plaintiff towards interest and endorsed the same on the back side of the suit promissory note. Thereafter the defendants did not pay the balance amount in spite of repeated demands made by the plaintiff. Hence, the suit.

2

3. The 2nd defendant filed his written statement, whereas the 1st defendant adopted the same. The 2nd defendant has denied all the allegations made by the plaint save those are specifically traversed in the written statement. He submits that he along with his father 1st defendant did not borrow any amount from the plaintiff. He and his father have been living by cultivation. The plaintiff had been doing business in agricultural produce since long time. The plaintiff used to purchase the agricultural produce from the farmers including the defendants. In the said transaction, the plaintiff may obtained the signatures of this defendant and created the suit promissory note and filed this unjust suit for wrongful gain as some misunderstandings arose between him and the plaintiff as to the sale of agricultural produce to the plaintiff. He had no any monetary transactions with the plaintiff. The suit promissory note is not attested, so it creates doubt as to the plaintiff’s version. The plaintiff filed the suit by suppressing all the material facts. So, the suit is liable to be dismissed with exemplary costs.

4. On the strength of the above pleadings, my learned predecessor settled the following issues for trial :

(1) Whether the defendants 1 and 2 borrowed Rs.1,00,000/-

from plaintiff on 14-6-2008 agreeing to repay with interest at 12 p.a. ?

(2) Whether defendants paid Rs.15,000/- towards interest on

promissory note and endorsed same on promissory note ?

(3) Whether defendants paid Rs.10,000/- towards interest on

promissory note on 18-8-2011 and endorsed on promissory note ?

(4) Whether plaintiff is entitled to suit claim ? (5) To what relief ?

5. Heard arguments of both side counsel. Perused the evidence.

6. During the trial, the plaintiff himself examined as PW.1 and got marked Exs.A.1 to A.3. On the side of the defendants, they examined themselves as DWs.1 and 2, but no documents are marked.

3

7. Issue Nos.1 to 3 : All these issues can be grouped-up and discussed together for the sake of convenience and brevity. In a suit on pronote, the initial burden lies on the holder of the instrument to prove its execution.

PW.1 reiterated the plaint averments in his chief-examination affidavit filed in lieu of chief examination. He also spoke about Exs.A.1 to A.3. He deposed that the 1st defendant himself scribed Ex.A.1 pronote. The 2nd defendant himself scribed Exs.A.2 and A.3 payment endorsements. Ex.A.1 pronote was executed in their (PW.1) home in Venkataramanapalli. At that time, he and the defendants were alone present there. When he asked the defendants about the attestation, they told that there was no need for attestation as D.1 himself scribed Ex.A.1 pronote. The 1st defendant signed at first instance and later the 2nd defendant signed. The defendants affixed four revenue stamps on Ex.A.1. The 1st defendant signed on two revenue stamps and 2nd defendant signed on the remaining two stamps. He denied the suggestions given by the learned counsel for defendants as to the contentions of the defendants.

8. DWs.1 and 2 also reiterated the written statement averments in the chief-examination affidavit filed in lieu of the chief-examination. DW.1 deposed that he supplied groundnuts in the year 2008-2009 to the plaintiff.

He admits that his son, 2nd defendant was doing business in sale of T.Vs. wall clocks and electronic goods.

9. Further, as aforesaid, in support of the plaintiff’s case he alone was examined as PW.1. The learned counsel for plaintiff submits that as there are no attestors to Exs.A.1 to A.3 and that the defendants themselves scribed Exs.A.1 to A.3, the plaintiff could not examine any other witnesses on his behalf. As stated supra, the contention of the defendants is that they never borrowed any amounts from the plaintiff and never executed the suit pronote. But, they have not specifically denied the part payments under

Exs.A.2 and A.3 in their written statement as they formally denied the 4 allegations made by the plaint. The defendants further contend that there are some business transactions between them and the plaintiff with regard to supply of agricultural produce, so, the plaintiff may obtained signatures of the 2nd defendant and might have created the suit pronote. DW.1 deposed that he never gave any signed paper to the plaintiff. Whereas, DW.2 deposed that the plaintiff obtained their (DW.2) signatures on some slips with regard to the said business. DWs.1 and 2 unequivocally admits that there is no any record or documentary proof with regard to the groundnut business with the plaintiff. They have not produced any record regarding the said groundnut business. They further admit that they have no any enimity with the plaintiff. DW.2 denied that the police registered a criminal case against him for forging pattadar passbook and title deed books. Whereas,

DW.1 admits that his (DW.1) son was arrested for the offence of forgery of fake pattadar passbooks. He further admits that one Rami Reddy and Nanji

Reddy held mediation in between him and the plaintiff with regard to the suit pronote debt and he asked the plaintiff to return the suit pronote, but the plaintiff did not return it. He did not get issue any legal notice to the plaintiff for return of the suit pronote.

10. That apart, it is the specific case of the plaintiff that the 1st defendant himself scribed Ex.A.1 pronote and the 2nd defendant himself scribed Exs.A.2 and A.3 part payment endorsements. The contention of the defendants is that Exs.A.1 to A.3 are created one. But, they did not choose to send

Exs.A.1 to A.3 to the hand writing expert’s opinion. Generally, nobody ventures to forge the entire document. So, from the pleadings and evidence of the defendants, it is obvious that they have not denied or disputed their signatures on Exs.A.1 to A.3.

11. Our Hon’ble High Court in a decision in Duggineni Seshagiri Rao Vs.

Kothapalli Venkateswara Rao1 held that “a promissory note even if the 1 2001 (6) ALT 95 (DB) 5

name of the payee left blank is a legal instrument if it is in writing

and containing an unconditional undertaking to pay the amount and

signed by the maker and delivered to the payee. Such an instrument

can be enforced. Holder of such instrument can fill-up the name of

the payee and other particulars at a later stage”. It was further held that “Sec.20 of the Negotiable Instrument Act lays down that when a

person signs and delivers to another person a paper stamped in

accordance with law relating to Negotiable Instrument, it becomes a

Negotiable Instrument even if it is wholly blank or written with

incomplete particulars. Similarly, Sec.42 of the Negotiable

Instrument Act even recognizes instrument issued in the name of

fictitious person to be a valid instrument. Even if one looks to the

definition of the promissory note and Sec.4 of the N.I. Act and one

would find that the requirement for making an instrument a

promissory note do not contain the requirement of naming a person,

which can be given in favour of a certain person or to bearer of the

instrument. That makes it clear that one who is holding the

document is the person who derives right out of that instrument.”

12. That apart, when once execution of the instrument is proved, the presumption under Sec.118 (A) of N.I. Act automatically follows and it operates with more vigour and shut out all the explanations sought to be given by the defendant.

13. Moreover, when the defendants have not paid the amounts under

Exs.A.2 and A.3, there is no need for the plaintiff to show the payments of

Rs.15,000/- and Rs.10,000/- under Exs.A.2 and A.3. To save the limitation of the suit pronote, the plaintiff could have shown a formal payment of

Rs.100/- also i.e. any minimum amount for the purpose of limitation. But, he did not do so. Of course, it is not the case of the defendant that the plaintiff created Exs.A.2 and A.3 part payment endorsements for the purpose 6 of limitation. Thus, in the facts and circumstances of the case and for the foregoing reasons, I hold that the defendants 1 and 2 borrowed

Rs.1,00,000/- from the plaintiff on 14-6-2008 agreeing to repay the same with interest at 12 % per annum and executed Ex.A.1 pronote and subsequently, the defendants paid Rs.15,000/- on 6-10-2010 and

Rs.10,000/- on 18-8-2011 to the plaintiff and endorsed the same under

Exs.A.2 and A.3. Exs.A.1 to A.3 are true, valid and binding on the defendant. Hence, these issues are answered accordingly.

14. Issue No.4 : It has already been held in the above issues that Exs.A.1 to A.3 are true, valid and binding on the defendants. It is not the case of the defendants that they discharged the suit pronote debt. As such, the plaintiff is entitled for the suit claim. Hence, this issue is answered accordingly.

15. Issue No.5 : In the result, the suit is decreed for Rs.1,49,059/- with costs and subsequent interest at 12 % per annum from the date of the suit till the date of decree and thereafter at 6 % per annum till realization on

Rs.1,49,059/-.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the Open Court on this the 7 th day of September, 2015.

Senior Civil Judge,

Penukonda.

Appendix of evidence

Witnesses examined for

PLAINTIFF DEFENDANTS

PW.1 : P.V.Janardhan DW.1 : P.Aswartha Reddy DW.2 : P.Ananda Reddy

Exhibits marked for plaintiff

Ex.A.1 : Suit Promissory Note dt. 14-6-2008 Ex.A.2 : Part payment endorsement for Rs.15,000/- dt. 6-10-2010 Ex.A.3 : Part payment endorsement for Rs.10,000/- dt. 18-8-2011

Exhibits marked for defendants

- NIL -

S.C.J.

1

IN THE COURT OF THE SENIOR CIVIL JUDGE :: PENUKONDA.

Present: Sri G.Venkateswarlu,

Senior Civil Judge, Penukonda.

Tuesday, the 23 rd day of June, 2015

Original Petition No.41/2014

Between:-

Ebbala Mamatha @ Harika, w/o Patna Setty Harish Babu, d/o E.Girijamba, aged 27 years, Hindu, Housewife, R/o Pedapalli village, Puttaparthi Mandal, Anantapuram Dist. … Petitioner

And

Patna Setty Harish Babu, s/o P.Thipperudra Gowda, aged 28 years, Hindu, Worked in T.V.S. Company at Chennai, R/o Dargahonnur Village, Bommanahal Mandal, Anantapuram Dist. … Respondent

This petition coming on 16-6-2015 for final hearing before me in the presence of Sri C.Venkataramanappa, Advocate for the petitioner and of

Sri D.Pakkeera Reddy, Sri R.Sreekanth Reddy, Advocates for the respondent and upon hearing the petitioners and upon perusing the material papers on record, this Court made the following:

O R D E R

This is an O.P. filed by the petitioner u/s.13 (1a) of Hindu Marriage

Act, 1955 to dissolve the marriage of the petitioner with the respondent by granting decree of divorce and costs.

2. The averments of the petition in brief are that the petitioner is legally wedded wife of the respondent. Their marriage was solemnized on 17-2-2013 at Pedaballi village as per the Hindu caste customs. Their marriage is an arranged marriage. But, by mistake and oversight their marriage was not registered with the authorities concerned. After the marriage, the petitioner and the respondent came back to the house of the petitioner. The mother of the petitioner arranged nuptial ceremony of the petitioner and respondent. The petitioner entered into the room with a lot of expectations. But, the respondent did not touch the petitioner and avoided 2 the meeting of the petitioner. The marriage was not consummated.

Subsequently also the petitioner tried her level best to have cohabitation with the respondent, but in vain. The petitioner understood that the respondent is an impotent. The petitioner demanded the respondent time and again to have marital life, but the respondent and his mother refused the request of the petitioner and beat her mercilessly and abused her in filthy language.

The petitioner further submits that the respondent and his mother took away the gold ornaments of the petitioner and beat the petitioner and they also necked her out from their house threatening that if the petitioner comes again, it will be the end of her life. None came forward in the village to rescue the petitioner as the respondent and his parents are very much influenced. So, the petitioner left the village of the respondent expecting danger to her life. The mother of the petitioner made sincere efforts to compromise the matter. But, the respondent and his mother did not care the request of the mother of the petitioner. The petitioner was subjected to great physical and mental and economical harassment by the respondent and his mother by taking money of Rs.1,00,000/- and 5 tulas of gold for the purpose of the marriage of the petitioner. The mother of the petitioner presented gold chain of 2 tolas and gold ring of 500 gms. to the respondent.

So, the petitioner feels that it is not safe and possible for her to continue the marital ties with the respondent.

3. The respondent has partly denied the allegations made in the petition save those are specifically traversed in the counter. He submits that the nuptial marriage in between him and the petitioner was performed 7 days after the marriage at Pedaballi. He and the petitioner happily led the marriage. He is not an impotent and prepared to undergo any test to prove his potency. The petitioner is making false and frivolous allegations as she is having connections with some other persons. The petitioner did not return to the village of the respondent, after she left the village of the respondent on the first occasion. The question of necking out or beating the petitioner at the village of the respondent did not and could not arise as the petitioner did 3 not come to the village of the respondent. He and his mother did not demand any money or jewelry weighing 500 grams or less. The petitioner or her mother or her people foisted a case u/s.498-A I.P.C. r/w.3 and 4 of

Dowry Prohibition Act against the respondent and his mother. He and his mother did not commit any sin at any point of time. Under the circumstances, it is impossible for the respondent to revive the marital tie with the petitioner. He has absolutely no objection to dissolve the marriage by decree of divorce. So, the petition may be allowed without costs.

4. Now, the point for consideration is : Whether the petitioner is entitled for dissolution of her marriage with the respondent ?

5. Heard arguments of both side counsel. Perused the evidence.

6. During enquiry, the petitioner examined herself as PW.1 besides examining PW.2 and got marked Exs.A.1 and A.2. On the side of the respondent, no witnesses were examined including himself and no documents were marked.

7. POINT : Admittedly, the marriage of the petitioner was solemnized with the respondent on 17-2-2013 in Pedaballi village as per Hindu caste customs and their marriage is an arranged marriage. The said marriage was not registered with the authorities concerned. The petitioner seeking divorce on the ground that their marriage could not be consummated owing to the impotency of the respondent. She further contends that the respondent and his mother subjected the petitioner to cruelty physically and mentally. The contention of the respondent is that their marriage was consummated as he is a potent and he is ready to undergo for any medical test. He further contends that the petitioner and her mother never gave any cash or gold towards dowry. He and his mother never harassed the petitioner physically and mentally.

8. PW.1 reiterated the petition averments in her chief examination affidavit filed in lieu of the chief examination. She also spoke about the 4

Exs.A.1 and A.2. Likewise, PW.2, the mother of PW.1 supported the case of

PW.1. Her evidence in the chief examination is almost all on the same lines as that of PW.1. PWs.1 and 2 further deposed that the respondent and his parents made a false representation that the respondent is an employee in

TVS company at Chennai. So, PW.1 married the respondent. But, on enquiry, they came to know that the respondent is not an employee in TVS company at Chennai. PWs.1 and 2 were beaten by the respondent. PW.2 paid Rs.1,00,000/- in advance to the respondent and during the time of marriage she gave 2 tulas of chain and a ring of half tula to the respondent.

PW.2 also spent about Rs.1,00,000/- for marriage expenses by incurring debt from others as she is living on coolie work. PW.1 further deposed that she has no means to maintain her mother. PW.2 further deposed that she earns

Rs.150/- per day. It was suggested to PW.2 by the learned counsel for respondent that she (PW.2) has no means to pay dowry of Rs.1,00,000/- and gold ring to the respondent. But, the said suggestion was denied. PW.2 admits that some years ago her husband deserted her. PWs.1 and 2 denied the suggestions given by the learned counsel for respondent as to the contentions of the respondent.

9. To substantiate his case, as aforesaid, the respondent did not choose to examine any witnesses including himself and no documents were marked on his behalf. Absolutely there is no iota of evidence either oral or documentary on behalf of the respondent. A presumption, therefore, can be drawn against the respondent u/s.114 (g) of Indian Evidence and that what he stated in his counter is not true, since he did not enter into the witness box. The Hon’ble Apex Court in a decision reported in A.I.R. 1999

Supreme Court 1341 in Iswar Bhai C.Patel Vs. Harihar Bahera and

Another (Hon’ble Justice Sri S.Saghir Ahmad and Hon’ble Justice Sri

M.B.Shah), held that ;

“The Evidence Act Sec.114 (g) – Defendant failing to appear as

a witness to substantiate his defence – it can be presumed that his

5

pleas in the written statement are not established – Suit can be

decreed on the basis of evidence adduced by the plaintiff “.

It was further held that “ the true object to be achieved by a Court

of justice can only be furthered with propriety by the testimony of

the party who personally knowing the whole circumstances of the

case can dispel the suspicious attaching to it. The story can then be

subjected in all its particulars to cross examination. It is the

bounden duty of a party personally knowing the facts and

circumstances to give evidence on his own behalf and to submit to

cross-examination and his non appearance as a witness would be a

strongest possible circumstance which will go to discredit the truth

of his case.”

10. Sec.13 of The Hindu Marriage Act, 1955 reads as follows :

13. Divorce : (1) Any marriage solemnized whether before or

after the commencement of this Act, may, on a petition presented by

either the husband or the wife, be dissolved by a decree of divorce on

the ground that the other party-

(i) has, after the solemnization of the marriage, had voluntary,

sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the

petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not

less than two years immediately preceding the presentation of the

petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering

continuously or intermittently from mental disorder of such a kind

and to such an extent that the petitioner cannot reasonably be

expected to live with the respondent.

6

11. Further, as stated supra, the respondent in his counter contends that he is a potent and he is ready to undergo any medical test regarding his potency. But, admittedly he did not take any steps in that regard. Of course, as aforesaid, he even did not choose to enter into the witness box. It is significant to note that in the counter itself the respondent states that absolutely he has no objection to dissolve the marriage by decree of divorce.

Even during the course of arguments also the learned counsel for respondent submitted that the O.P. may be allowed and the marriage of the petitioner and respondent may be dissolved. Perhaps, may be as the respondent is also interested to take divorce, he did not choose to enter into witness box.

Thus, in the facts and circumstances of the case and for the foregoing reasons, I hold that the petitioner is entitled for dissolution of her marriage with the respondent by decree of divorce. Hence, this point is answered accordingly.

12. In the result, the O.P. is allowed with costs. The marriage of the petitioner with the respondent is dissolved by granting divorce.

Dictated to the Stenographer, transcribed by him, corrected and

pronounced by me in the Open Court on this the 23 rd day of June, 2015.

Senior Civil Judge,

Penukonda.

Appendix of evidence

Witnesses examined for

PETITIONER RESPONDENT

PW.1 : E.Mamatha @ Harika - NIL – PW.2 : E.Girijamba Exhibits marked for Petitioner

Ex.A.1 : Wedding Card Ex.A.2 : Photograph

Exhibits marked for Respondent

- NIL –

S.C.J.