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IN THE COURT OF SENIOR CIVIL JUDGE AT KANDUKUR
Present: Sri M.Nageswara Rao,
Senior Civil Judge, Kandukur
Wednesday, this the 6th day of January, 2021.
APPEAL SUIT NO.22/2019
Between :
Bellamkonda Bhaskar, S/o.Chimpiraiah, Hindu, aged about 49 years, mason worker, r/o.Naladalapuru Village, Voletivaripalem Mandal, Prakasam District.…. Appellant/Defendant.
And :
Karamsetty Bramarambha, W/o.Venkateswarlu, Hindu, aged about 50 years, house wife, r/o.Darakanipadu Village, Gudlur Mandal, Prakasam District.…. Respondent/Plaintiff.
// Appeal Suit filed under Order XLI Rule 1 and Sec.151 of C.P.C.,
against the Judgment and Decree dated 07-03-2019 in
O.S. No.344/2017 on the file of Principal Junior Civil Judge's Court,
Kandukur//
Between :
Karamsetty Bramarambha.…. Plaintiff.
And :
Bellamkonda Bhaskar. …. Defendant.
This appeal suit coming on 07-12-2020 before me for final hearing in the presence of Sri CH. Hari Krishna, Advocate for Appellant and of
Sri T.Gopala Krishna Murthy, Advocate for Respondent and upon hearing their arguments and having stood over for consideration till this day, this Court delivered the following :
J U D G M E N T
1.This is an Appeal filed by the appellant/defendant praying the court to set aside the decree and judgment passed by the Learned Principal
Junior Civil Judge, Kandukur passed in O.S. No.344/2017, dated 07-03-2019 wherein the suit was decreed for recovery of money and therefore prayed the court to dismiss the suit by allowing this appeal suit with costs.
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2.The grounds of appeal are as follows :
(1) The judgment and decree passed by the trial court is contrary to law, weight of evidence and probabilities of the case.
(2) The trial court failed to see that P.W.1 not identified the appellant/defendant, though the photo of the defendant and others were confronted to the respondent/plaintiff, itself is proving the contention of the appellant/defendant.
(3) The trial court failed to see that P.W.1 admitted that her husband is doing money lending business and also admitted that one
Thanneru Malakondaiah is the maternal uncle whose dispute is settled by the appellant/defendant.
(4) The trial court failed to see the evidence of the respondent/plaintiff/P.W.1 which is contradicting to his pleadings that there is no pleading by the respondent/plaintiff that the consideration was passed and wrongly came to conclusion and decreed the suit.
(5) The trial court failed to observe that the material alteration at the date portion and the same can be observed without assistance of hand writing expert when the same apparent on the face of the suit document.
(6) The trial court failed to see the burden heavily lies on the respondent/plaintiff to prove the due execution of the suit promissory note and passing of consideration to the appellant/defendant under the suit promissory note and the contracting statement cannot be allowed and accordingly the trial court failed to see that the respondent/plaintiff failed to discharge his burden.
(7) The trial court failed to appreciate that nothing was elicited in the cross examination of the appellant/defendant and as such the 3 respondent/plaintiff failed to prove the passing of consideration an failed to discharge the burden.
(8) The trial court ought to have disbelieved the evidence of
P.W.2 and P.W.3 who are the interested witnesses and also ought to have appreciated the evidence of D.W.1 and dismiss the suit with costs.
Therefore, prayed the court to consider the appeal grounds and set side the decree and judgment passed by the trial court by allowing this appeal with costs. Hence, the appeal.
3.After receiving notices in this appeal, the respondent/plaintiff made her appearance and contested the appeal.
4.Heard the arguments of the learned counsel for the appellant/defendant and also heard the arguments of the learned counsel
for the respondent/plaintiff. Perused the entire material on record.
5.For easy understanding and convenience, the parties will be referred hereafter as they are arrayed in the main suit.
6.The case of the plaintiff is as follows :
The defendant borrowed an amount of Rs.80,000/- from the plaintiff on 20-10-2014 for his family necessities and executed a demand promissory note in favour of the plaintiff on the same day at Darakanipadu
Village, agreeing to repay the same with interest at the rate 18 % per annum either to the plaintiff or to her order on demand. Subsequently, the defendant failed to pay the debt inspite of repeated demands made by the plaintiff and postponing the same on some pretext orother. Therefore, the plaintiff is constrained to file the suit for recovery of money. The defendant is not entitled for any of the benefits under any of the debt relief acts which are in force.
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7.On the other hand the case of the defendant is as follows :
The defendant denied all the averments of the plaint. It was further contended in the written statement that the defendant never borrowed any amount from the plaintiff and never executed any promissory note in favour of the plaintiff. The suit promissory note is a concocted and created document. The suit promissory note is suffers with material alteration at the date portion. The defendant is a poor and daily labour in mason works. It is further contended that the husband of the plaintiff by name Karamsetty Venkateswarlu is a money lender in his village and he used to lend money to weaker section people on huge interest at 10/- per day taking advantage of their financial necessities and weakness and also used to collect amount on daily wise by harassing the borrowers. It is further contended that the mother of the defendant belongs to Darakanipadu village and the defendant used to go to the maternal grandmother house at Darakanipadu village. The maternal uncle of the defendant by name Tanneeru Malakondaiah borrowed some amount from the husband of the plaintiff at huge rate of interest at Rs.10/- per day and subsequently the said Malakondaiah failed to discharge the amount indebted to the husband of the plaintiff due to drought condition, therefore, the husband of the plaintiff raised dispute with the said
Malakondaiah and a galata also taken place in between the husband of the plaintiff and the said Malakondaiah in respect of the calculation of the interest, at that time the defendant intervened and it was found that the said Malakondaiah was indebted including with interest at Rs.10/- to a tune of Rs.1,70,000/- to the husband of the plaintiff, but the said Malakondaiah asked one year time to discharge the said amount, while so, the hsuband of the plaintiff insisted the defendant to execute promissory notes in his favour for the above said settled amount as a security as the defendant 5 being relative of the said Malakondaiahand also as mediator in the said issue, as such the husband of the plaintiff obtained two promissory notes from the defendant, one in his name for an amount of Rs.90,000/- and another promissory note in the name of the plaintiff for Rs.80,000/-. Thus the said two promissory notes were executed by the defendant on 02-10-2014 with his own hand writing without taking any consideration from the plaintiff in favour of the plaintiff and his wife towards security as stated above. Therefore, no consideration was passed under the said two promissory notes. The husband of the plaintiff also filed another suit against the defendant in O.S. N0.345/2017 on the file of Principal Junior
Civil Judge’s Court, Kandukur. It is further contended that at the time of
the execution of the suit promissory note, the husband of the plaintiff, the defendant and the said Malakondaiah were only present and the attetors of the suit promissory note were not present at that time and the attestors coloumn in the suit promissory note was kept blank. It is further contended that at the time of the execution of the said two promissory notes the defendant mentioned the date as ‘2’ but not ‘20’, but the defendant astonished about the adding of ‘0’ after ‘2’ in the date portion in the suit promissory note. It is further contended that as the said Malakondaiah did not discharge the above said settled debt amount to the husband of the plaintiff, the husband of the plaintiff taking advantage of the above said two promissory notes which were executed by the defendant in favour of the plaintiff and her husband towards security for the above said debt of the said Malakondaiah, the plaintiff filed the present suit and filed another suit in O.S. No.345/2017 through his wife to have get wrongful gain. The plaintiff came to the court with unclean hands. As the plaintiff altered the date portion in the suit promissory note the suit is barred by limitation.
There is no cause of action for the suit since no consideration is passed 6 under the suit promissory note and thereby the suit is liable to be dismissed. Hence, the suit may be dismissed with costs.
8.Basing on the pleadings of both parties the trial court has framed the following issues for trial :
(1) Whether the suit promissory note, dated 20-10-2014 is true, valid and binding on the defendant ?
(2) Whether the defendant executed the suit promissory note as collateral security as pleaded in the written statement ?
(3) Whether the plaintiff is entitled for recovery of promissory note debt ?
(4) To what relief ?
9.To prove the claim in the suit, the plaintiff got examined herself as P.W.1 and got marked Ex.A.1. The plaintiff also got examined both the attestors of the suit promissory note as P.W.2 and P.W.3. On the other hand, the defendant got examined himself as D.W.1 and no documents were marked on behalf of the defendant.
10.After hearing the arguments of both counsels and after evaluating the entire evidence placed on record by both parties the trial court has come to conclusion that the plaintiff is able to establish his claim in the suit and disbelieved the version of the defendant and therefore proceeded to pass decree and judgment in favour of the plaintiff and against the defendant.
11. Aggrieved by the said judgment and decree passed by the learned Principal Junior Civil Judge, Kandukur in O.S. No.344/2017, dated 07-03-2019 the appellant/defendant herein filed the present appeal.
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12. Now the points for consideration are :
(1) Whether the judgment and decree passed by the
Learned Principal Junior Civil Judge, Kandukur in
O.S. No.344/2017, dated 07-03-2019 is in accordance
with law and if not, whether it requires any interference by this court ? and (2) To what relief ?
13.POINT NO.1 :
The learned counsel for the appellant/defendant submitted that the trial court failed to appreciate the evidence of P.W.1 in respect of that the husband of the plaintiff is doing money lending business, P.W.1’s husband is having dispute with the maternal uncle of the defendant by name Thanneru Malakondaiah. The trial court failed to see the evidence of P.W.1 which is contradicting the pleadings. The trial court failed to observe the pleadings with regard to passing of the consideration under the suit promissory note. The learned counsel for the appellant/defendant further submitted that the trial court failed to observe the material alteration in respect of the date portion which apparent on the face of the suit promissory note itself. The trial court ought to have appreciated the evidence of D.W.1. P.W.2 and P.W.3 are the henchmen of P.W.1, their evidence cannot be given much weight. The learned counsel for the appellant/defendant further submitted that there was a dispute in between the husband of the plaintiff and the maternal uncle of the defendant by name Thanneru Malakondaiah with regard to the debt due by the said
Malakondaiah, for which the defendant settled the said dispute, at that time the husband of the plaintiff insisted the defendant to execute promissory notes for the said settlement of the debt due by the said
Malakondaiah, accordingly, the defendant executed Ex.A.1/suit promissory note in favour of the plaintiff and another promissory note in favour of her husband on the same day towards security. Therefore, no consideration 8 was passed under the suit promissory note. Hence, prayed the court to set aside the judgment and decree passed by the trial court by allowing this appeal suit with costs.
14.The learned counsel for the respondent/plaintiff submitted that the trial court appreciated the evidence available on record correctly and decreed the suit basing on the material available on record. The defendant himself executed the suit promissory note in his own hand writing. The defendant clearly and categorically admitted in his cross examination that the writings in Ex.A.1/suit promissory note belongs to him and the signatures as executants of the suit promissory note also belongs to him.
The plaintiff in order to prove his initial burden rests upon him himself was examined as P.W.1 and examined both the attestors of the suit promissory note as P.W.2 and P.W.3 and that the evidence of the plaintiff’s side is corroborated in all material aspects. The defendant took a false plea only to avoid the debt due under the suit promissory note. Therefore, the trial court rightly held that the suit was decreed. Therefore, no grounds to interfere with the judgment and decree of the trial court by the appellate court. Hence, prayed the court to dismiss the appeal suit with costs.
15.Originally the suit is filed by the plaintiff for recovery of money basing on the suit promissory note said to have been executed by the defendant in his favour. The contention of the plaintiff is that the defendant borrowed an amount of Rs.80,000/- from the plaintiff on 20-10-2014 for his family necessities, on the same day the defendant executed the suit promissory note in his favour, having agreed to repay the same with interest at the rate of 18 % per annum. Subsequently, the defendant failed to repay the same inspite of repeated demands made by the plaintiff, therefore, the plaintiff is constrained to file the suit for 9 recovery of money. Per contra, the contention of the defendant is that the husband of the plaintiff is money lender in the village and he used to lend money to weaker section people in the village at higher rate of interest at
Rs.10/- per day taking advantage of the financial necessities and weaknesses and that the husband of the plaintiff used to collect the amount on daily basis. The maternal uncle of the defendant by name
Thanneru Malakondaiah borrowed some amount from the plaintiff on higher rate of interest at Rs.10/- per day, in the year 2014 due to drought condition the said Malakondaiah failed to discharge the amount indebted to the husband of the plaintiff and thereby disputes arose in between the husband of the plaintiff and Thanneru Malakondaiah, and a galata took place in between them, at that time the defendant intervened between the plaintiff and the said Malakondaiah and calculated the amount due by the said Malakondaiah to the plaintiff at Rs.1,75,000/- for which the said
Malakondaiah asked one year time to discharge the said settled debt amount, mean while the husband of the plaintiff insisted the defendant being relative of the said Malakondaiah and acted as mediator, to execute promissory note in his favour as security for the settled due amount of the said Malakondaiah, as such the husband of the plaintiff obtained the suit promissory note from the defendant in the name of the plaintiff for
Rs.80,000/- and another promissory note in his name for Rs.90,000/- on 20-10-2014, thus, the defendant without receiving consideration executed the suit promissory note and another promissory note in his own hand writing towards security for the debt due by his maternal uncle
Malakondaiah. At the time of the execution of the suit promissory note and the above said another promissory note, the husband of the plaintiff, the defendant and the said Malakondaiah were only present and the alleged attestors of the suit promissory note were not present at that time.
There is a material alteration in date portion by adding digit ‘0’ after the 10 digit ‘2’ and make it ‘20’. Subsequently, the said Malakondaiah failed to discharge the debt for which the plaintiff filed the suit basing on the suit promissory note executed by the defendant towards security and the husband of the plaintiff also filed another suit basing on the another promissory note executed by the defendant towards security.
16.In order to discharge initial burden rests upon her the plaintiff herself was examined as P.W.1 and got marked Ex.A.1. The plaintiff also examined both the attestors of the suit promissory note as P.W.2 and P.W.3.
P.W.1 being the plaintiff reiterated the plaint contents in her chief- examination. The learned counsel for the defendant cross examined P.W.1 at length, but no useful material brought on record in favour of the defendant. Even the evidence of P.W.1 not disturbed in the cross examination. P.W.1 clearly and categorically deposed in his evidence that on 20-10-2014 the defendant borrowed an amount of Rs.80,000/- from her to meet his family needs and on the same day the defendant had executed
Ex.A.1/suit promissory note in her favour, having agreed to repay the same with interest at the rate of 18 % per annum. The defendant contended that he had executed the suit promissory note towards security for the debt due by his material uncle Malakondaiah to the husband of the plaintiff. The evidence of P.W.1 is very clear that the defendant himself borrowed the amount of Rs.80,000/-. The recitals of Ex.A.1/suit promissory note is very clear that the defendant borrowed the amount to meet his family needs and agreed to repay the same with interest at the rate of 18 % per annum. The defendant contending that he executed Ex.A.1/suit promissory note towards security for the debt due by his maternal uncle
Thanneru Malakondaiah to the husband of the plaintiff.
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17.The evidence of P.W.1 is clear that the defendant himself borrowed the amount of Rs.80,000/- from him and executed Ex.A.1/suit promissory note in his own handwriting. As can be seen from Ex.A.1/suit promissory note it is dated 20-10-2014 for Rs.80,000/-. The recitals of
Ex.A.1/suit promissory note is very clear that the defendant borrowed the amount to meet his family needs and agreed to repay the same with interest at the rate of 18 % per annum.
18.The defendant himself was examined as D.W.1. No other evidence adduced on behalf of the defendant. In the cross examination
D.W.1 clearly admitted that he scribed the suit promissory note. D.W.1 also clearly admitted that the signatures on the suit promissory note in executants portion belongs to him. Therefore, the defendant himself clearly and categorically pleaded in his written statement also and admitted in his cross examination that he had executed Ex.A.1/suit promissory note in favour of the plaintiff and the signatures in the suit promissory note as executant belongs to him. The defendant contending that he executed Ex.A.1/suit promissory note towards security for the debt of his maternal uncle Thanneru Malakondaiah to the plaintiff. The defendant has not placed any material before the court to show that
Ex.A1/suit promissory note is security for the debt of his uncle Thanneru
Malakondaiah to the husband of the plaintiff.
19.As can be seen from the contents of Ex.A.1/suit promissory note it is very clear that the defendant borrowed the amount from the plaintiff to meet his family needs. The defendant himself scribed the suit promissory note. If really, the version of the defendant is true he ought to have mentioned in Ex.A.1/suit promissory note that the suit promissory note is executed towards security for the debt due by Thanneru 12
Malakondaiah to the husband of the plaintiff. In his cross examination the defendant clearly admitted that there is no mention in the suit promissory note that it was executed for collateral security. The defendant himself clearly stated that there is no mention in Ex.A.1/suit promissory note that it was executed as collateral security purpose as debt due by Thanneru
Malakondaiah to the husband of the plaintiff. On the other hand, P.W.2 and
P.W.3 who are the attestors of Ex.A.1/suit promissory note deposed on oath
before the court that in their presence the defendant borrowed the amount
from the plaintiff and the defendant executed the suit promissory note in favour of the plaintiff. The learned counsel for the defendant cross examined P.W.2 and P.W.3 also, but no evidence is elicited in favour of the defendant. Therefore, the evidence of P.W.1 to P.W.3 and the recitals of
Ex.A.1/suit promissory note and also the admission of the defendant in his cross examination itself is sufficient to held that the defendant himself borrowed the amount of Rs.80,000/- from the plaintiff to meet his family needs and executed Ex.A.1/suit promissory note. Even the defendant has not examined any witnesses except himself on his behalf to establish the alleged disputes in between the plaintiff and the said Thanneru
Malakondaiah. Even the defendant did not choose to examine his maternal uncle Thanneru Malakondaih to support his case. Therefore, the plea taken by the defendant that he had executed Ex.A.1/suit promissory note towards security for the debt due by the said Thanneru Malakondaiah to the husband of the plaintiff, not supported any evidence.
20.The defendant further contended that there is material alteration in Ex.A.1/suit promissory note in respect of the date portion.
The defendant pleaded in his written statement that he put the date in the suit promissory note as ‘2’, but the plaintiff inserted the digit ‘0’ after the digit ‘2’in the suit promissory note in respect of the date portion and made 13 it as ‘20’to save limitation and that the material alteration is apparent on the face of Ex.A.1/suit promissory note. On the other hand, the plaintiff contending that there is no material alteration as pleaded by the defendant and that the defendant himself put the date as ‘20’ and that there is no material alteration. As can be seen from the original suit promissory note it appears that there is no alteration as pleaded by the defendant. In the date portion of the suit promissory note it is mentioned as ‘20’ with the same pen and it appears to be written by same pen by the scribe of the suit promissory note. There is no doubt putting of the digit ‘0’ after the digit of ‘2’ in the date portion of the suit promissory note. More over, the defendant himself in his own handing filled the entire suit promissory note in respect of all the coloumns. Therefore, the trial court rightly held that there is no material alteration as pleaded by the defendant. On the other hand, the evidence of P.W.1 to P.W.3 is very clear that the entire suit promissory note filled by the defendant in his own hand writing. Even as can be seen from the cross examination of P.W.1 to P.W.3, there is no suggestion put to P.W.1 to P.W.3 with regard the alleged material alteration as pleaded by the defendant in his written statement.
Therefore, there is no material alteration in Ex.A.1/suit promissory note in respect of the date portion as pleaded by the defendant.
21.In view of the evidence of P.W.1 to P.W.3 and the recitals of
Ex.A.1/suit promissory note and the admission of the defendant in his cross examination that he himself scribed Ex.A.1/suit promissory note and the signatures in the suit promissory note at the executants coloumn belongs to him, it is abundantly clear that the plaintiff able to prove the due execution of Ex.A.1/suit promissory note by the defendant.
22.Once the execution of Ex.A.1/suit promissory note is proved the presumption U/Sec.118 (a) of Negotiable Instruments Act would attract 14 that the suit promissory note is supported by consideration. No doubt it is true that the presumption is rebuttable in nature. The defendant has not adduced any evidence to rebut the presumption. On the other hand, the evidence of P.W.1 to P.W.3 is very clear and cogent and corroborated that the defendant borrowed amount and executed Ex.A.1 suit promissory note in favour of the plaintiff after taking consideration. The defendant simply pleaded that no consideration was passed under Ex.A.1/suit promissory note, is not supported by any evidence. Therefore, it is held that
Ex.A.1/suit promissory note is supported by consideration.
24.Coming to the interest, there is no serious dispute in between the parties. As per Ex.A.1 suit promissory note the contract rate of interest is at 18 % per cent per annum. The defendant himself mentioned the rate of interest at the rate of 18 % per annum. The purpose of borrowing the amount under the suit promissory note is to meet family needs.
Therefore, the plaintiff is entitled to get contract rate of interest.
23.After considering the entire material on record and the evidence of both parties, it appears that the defendant has set up the defence only for the purpose of the suit and to avoid payment of the suit debt to the plaintiff. On the other hand, the evidence of P.W.1 to P.W.3 cogent and trustworthy. Therefore, the plaintiff is able to establish his claim and as such, he is entitled to recover the suit amount from the defendant as prayed for. Therefore, the trial court has rightly appreciated the evidence placed by both parties and passed a well reasoned judgment both on factual and legal aspects. Considering the reasons given by the trial court and the additional reasons given by this court, this court is of the considered view that the trial court has rightly passed the decree and judgment in O.S. No.344/2017, dated 07-03-2019. More over, there are no 15 new grounds urged in the appeal to take a contra view from that of the view expressed by the trial court. Therefore, there are no sufficient and tenable grounds to interfere with the said decree and judgment and therefore, the decree and judgment of the trial court is confirmed.
Accordingly, the point No.1 is answered.
24.POINT NO.2 :
In view of the findings given by this court on point No.1, this court holds that the present appeal is devoid of merits and as such the appeal suit is liable to be dismissed.
25.In the result, this appeal suit is dismissed without costs, confirming the judgment and decree passed by the Learned Principal Junior
Civil Judge, Kandukur passed in O.S. No.344/2017, dated 07-03-2019.
Typed to my dictation by theStenographer of this court, corrected and pronounced by me in the open Court, on this the 6th day of January, 2021.
SENIOR CIVIL JUDGE,
KANDUKUR.
APPENDIX OF EVIDENCE
- Nil -
S.C.J.
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IN THE COURT OF SENIOR CIVIL JUDGE AT KANDUKUR
Present: Sri M.Nageswara Rao,
Senior Civil Judge, Kandukur
Wednesday, this the 6th day of January, 2021.
APPEAL SUIT NO.22/2019
Between :
Bellamkonda Bhaskar, S/o.Chimpiraiah, Hindu, aged about 49 years, mason worker, r/o.Naladalapuru Village, Voletivaripalem Mandal, Prakasam District.…. Appellant/Defendant.
And :
Karamsetty Bramarambha, W/o.Venkateswarlu, Hindu, aged about 50 years, house wife, r/o.Darakanipadu Village, Gudlur Mandal, Prakasam District.…. Respondent/Plaintiff.
// Appeal Suit filed under Order XLI Rule 1 and Sec.151 of C.P.C.,
against the Judgment and Decree dated 07-03-2019 in
O.S. No.344/2017 on the file of Principal Junior Civil Judge's Court,
Kandukur//
Between :
Karamsetty Bramarambha.…. Plaintiff.
And :
Bellamkonda Bhaskar. …. Defendant.
This is an Appeal filed by the appellant/defendant praying the court to set aside the decree and judgment passed by the Learned Principal Junior Civil Judge, Kandukur passed in O.S. No.344/2017, dated 07-03-2019 wherein the suit was decreed for recovery of money and therefore prayed the court to dismiss the suit by allowing this appeal suit with costs.
Valuation and Court Fee :
For the purpose of court fee and jurisdiction this appeal suit is valued at Rs.1,36,440/-, on which a court fee of Rs.3,826/- is paid U/Sec.20 r/w.49 of A.P.C.F. & S.V. Act.
Appeal presented on : 24-04-2019 and filed on : 11-06-2019
This appeal suit coming on 07-12-2020 before me for final hearing in the presence of Sri CH. Hari Krishna, Advocate for Appellant and of Sri T.Gopala Krishna Murthy, Advocate for Respondent and upon hearing their arguments and having stood over for consideration till this day, this Court doth order and decree :
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1. that the appeal suit be and the same is hereby dismissed;
2. that the judgment and decree passed by the Learned
Principal Junior Civil Judge, Kandukur in O.S. No.344/2017,
dated 07-03-2019 be and is hereby confirmed; and;
3. that each party do bear their own costs.
Given under my hand and the seal of the Court, this the 6th day of January, 2021.
SENIOR CIVIL JUDGE,
KANDUKUR.
TABLE OF COSTS
- NIL -
S.C.J.