IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTYSEVENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Second Appeal No.994 of 2011 Between: Y. Ram Reddy .. Appellant AND Dr. Ayyanna .. Respondent JUDGMENT: The Second Appeal is directed against the judgment and decree dated 13-08-2008 in A.S.No.49 of 2006 on the file of the Court of District Judge, Mahabubnagar, by which the judgment and decree in O.S.No.19 of 2000 on the file of Court of Senior Civil Judge, Mahabubnagar dated 30-06-2004 were confirmed. The parties are referred to herein as they are arrayed before the trial Court. The plaintiff filed the suit for recovery of Rs.1,62,600/- with future interest and costs from the defendant claiming the same to be due under a promissory note dated 20-08-1999. The plaintiff issued a legal notice prior to the suit for which there was no reply. The defendant resisted the suit contending that the plaintiff and Narayana Reddy were labour contractors and the plaintiff opened a hotel at Mahabubnagar later after stopping labour contracts. Narayana Reddy was unable to discharge a loan taken from the plaintiff and the plaintiff obtained the jeep of Narayana Reddy on hire during the elections to Parliament and Assembly in 1999. In an accident, the jeep driver died and the plaintiff sustained grievous injuries. When Narayana Reddy demanded money for repair of the jeep and other expenses, their relationship became strained and the plaintiff was beaten by Narayana Reddy’s sons. The defendant intervened, separated them and acted as a mediator and the settlement arrived through Sudhakar Reddy was not implemented by Narayana Reddy. On 20-08-1999, the defendant was called to the house of B. Venkatram Reddy, an advocate, where during negotiations the defendant was forced to sign on a promissory note at midnight. While one Prathap Reddy was the scribe, Thirmalgiri Bal Reddy and Edigi Narsimhulu Goud were the attestors. The signatures of two other attestors were subsequently obtained by the plaintiff and the promissory note executed under such circumstances was without consideration and materially altered. In spite of intervention of Dayakar Reddy, M.L.A., Sudhakar Reddy and his wife, the plaintiff still gave the notice and filed the suit. The defendant, therefore, desired the suit to fail. The trial Court framed issues about the truth, validity and consideration for the promissory note, the material alteration of the suit promissory note and the relief to be granted. PW.1 and DWs.1 to 6 were examined and Exs.A.1 to A.3 were marked during trial. The Trial Court rendered its judgment firstly noting that the presumption under Section 118 of the Negotiable Instruments Act becomes available to the plaintiff, who examined himself alone (though it was mistakenly stated to be under Section 118 of the Evidence Act). The Trial Court noted that DWs.2 and 3 were examined to rebut the presumption under Section 118, they being the first and second attesting witnesses to Ex.A.1-Promissory Note, who supported the version of the defendant as DW.1 in reiteration of the contents of the written statement. The third and fourth attestors or the scribe were not examined and the trial Court opined that while the presumption under Section 118 was rebutted, the plaintiff did not take any steps to produce evidence in favour of the promissory note. The evidence of DW.4, the wife of DW.1, DW.5, the Upa Sarpanch of the village and DW.6, the then M.L.A., was also referred to by the trial Court as corroborating the claims of DW.1 further and PW.1 was opined to have not discharged the shifted burden of proof. Consequently, holding all the issues against the plaintiff, the trial Court dismissed the suit with costs. In appeal, the First Appellate Court in the impugned judgment again referred to the rival contentions and evidence in detail and referred to the decision reported in Bonala Raju and another v. Sarupuru Srrenivasulu (2006 (2) ALT 202) relied on by the appellant-plaintiff in which it was held that the plaintiff need not prove the passing of consideration once the execution is proved as the presumption under Section 118 of the Negotiable Instruments Act that it is supported by consideration automatically applies. The Court also referred to the decisions reported in G. Vasu v. Syed Yaseen Sifuddin Quadri (AIR 1987 AP 139) and P. Venkatamma and another v. Dontham Sulochana (2005 (6) ALD 211) relied on by the learned counsel for the defendant in this regard and further referred to two other precedents concerning the alleged material alteration. The First Appellate Court took note of the presumption available to the plaintiff under Section 118 of the Negotiable Instruments Act that Ex.A.1 was executed for consideration unless the contrary is proved. The First Appellate Court also felt that the positive evidence of DWs.2 and 3, the attestors of Ex.A.1 in support of the defence version, ought to have been repelled by the plaintiff by examining the two other attestors of the promissory note. When DWs.2 and 3 positively deposed that no consideration was passed under the promissory note to the defendant from the plaintiff and when independent witnesses, DWs.5 and 6, corroborated the same, the First Appellate Court was of the opinion that Ex.A.1 was proved to have been without any consideration. Mere presumption under Section 118 of the Negotiable Instruments Act, which is rebuttable being insufficient for a decree in favour of the plaintiff under the circumstances, the First Appellate Court dismissed the appeal with costs throughout. In the Second Appeal at the instance of the plaintiff, the questions sought to be raised are about the necessity for the First Appellate Court to frame the points for determination before deciding the appeal, the mandatory nature of the presumption under Section 118 of the Negotiable Instruments Act, the requirement to mention the particulars of the undue influence in the written statement and alleged irrelevant particulars given in the written statement. The plaintiff sought to plead that the Courts below erred in their findings of fact and desired the suit to succeed. Sri G. Narender Raj, learned counsel for the appellant and Sri K. Srinivas, learned counsel for the respondent are heard at the stage of admission. The point for consideration is whether any substantial questions of law are involved in the second appeal as it is mandatory under Section 100 of the Code of Civil Procedure, 1908 read with Order 42 Rule 2 thereof that the High Court should be satisfied that the case involves substantial questions of law and should formulate the same if it were to entertain the second appeal. Coming to the first ground of challenge to the judgment of the First Appellate Court about not framing appropriate points for consideration, it is true that Order 41 Rule 31 of the Code of Civil Procedure mandates the judgment of the First Appellate Court to state the points for determination followed by the decision thereon and the reasons for the same. It is also true that in the present case, the First Appellate Court framed an omnibus point for consideration about the liability of the judgment and decree of the trial Court to be set aside or annulled by reappraising the evidence. But, it is seen from the contents of the elaborate discussion made by the First Appellate Court that it had specifically adverted to the effect of the presumption under Section 118 of the Negotiable Instruments Act, the adequacy of the evidence on record in rebutting any such presumption, the probability of the promissory note coming into existence under the circumstances stated in the written statement etc., and had gone into in detail the pleadings and the evidence on record. Any technical non-compliance with the requirement of framing the appropriate points for consideration, therefore, need not result in reverting the parties back to the First Appellate Court and subject them to further expense, time and anxiety. Coming to the presumption under Section 118 of the Negotiable Instruments Act, as already extracted above from the judgments of the Courts below, the presumption was drawn in view of the admitted execution on Ex.A.1 and was found on merits to have been rebutted by the evidence for the defendant on record. The claim that the particulars of undue influence were not precisely stated also does not stand to reason when in the further grounds stated in the written statement in paras-6 to 12 a graphic description of the events that ultimately led to the suit was given by the defendant in corroboration of which the oral evidence was placed before the Court. Except that there was no reply to Ex.A.2- legal notice in the suit in spite of service on the defendant under Ex.A.3 acknowledgment, there was no other circumstance in the evidence of both parties to strengthen the interested and self- serving claims of PW.1,while the question of burden of proof loses its relevance when once the evidence of both the parties is before the Court except when it is equally balanced. The questions raised by the plaintiff-appellant thus do not appear to be involving any substantial question of law so as to indulge in any re- appreciation of the questions of fact involved, more so, when the First Appellate Court being the final Court of fact finding had reasoned reasonably in favour of the plaintiff. Sri G. Narender Raj, learned counsel for the appellant, also sought to raise another question during hearing about adverse inference to be drawn due to non-examination of the advocate at whose house Ex.A.1 was claimed to have been obtained from him. Assuming that the non-examination of the advocate has to be considered as an adverse factor in appreciating the evidence of the defendant, the same will not outweigh the effect of the independent evidence of Dws.2, 3, 5 and 6. When DWs.2 and 3, the attestors of Ex.A.1, corroborated the version of DW.1 in all material particulars, the non-examination of the advocate does not matter as it is the quality and not the quantity of evidence that counts. The plaintiff, therefore, has to fail even in the second appeal. Therefore, the Second Appeal is found to be devoid of involvement of any substantial questions of law and is consequently dismissed without costs at the stage of admission. _____________________ G. BHAVANI PRASAD, J Date: 27-08-2011 Ksn