IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 CMA.No. 263 of 2001() --------------------- AS.99/1999 of III ADDL.SUB COURT, ERNAKULAM OS.1586/1996 of I ADDL.M.C.,ERNAKULAM .................... APPELLANT: RESPONDENT:DEFENDANT: --------------------------------------------------------------- SIVAKARAN BHATTATHIRIPPAD, AGED ABOUT 48 YEARS, SON OF RAMAN BHATTATHIRIPPAD, KANJOOR MANAKKAL, KODUMUNDA DESOM, MUTHUTHALA VILLAGE, OTTAPPALAM TALUK. BY ADV. SRI.S.K.BRAHMANANDAN SRI.G.SREENIVASA PRABHU SRI.S.B.PREMACHANDRA PRABHU RESPONDENT:APPELLANT:PLAINTIFF: ---------------------------------------------------------- POULOSE THOMAS, AGED 62 YEARS, SON OF POULOSE, MAMPILLY HOUSE, PARUVOOTHARA MURI, PARUR VILLAGE, PARUR TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.PADMANABHAN NAIR, J. ------------------------------- C.M.A.No. 263 of 2001 ------------------------------- Dated this the 1st January, 2008. J U D G M E N T The defendant in O.S.No.1586/1996, on the file of the I Additional Munsiff's Court, Ernakulam, is the appellant. The appeal is filed challenging the order of remand passed by the lower appellate court, by which it set aside the judgment and decree passed by the trial court, dismissing the suit, and remanding the same for fresh consideration. The respondent-plaintiff filed a suit for money alleging that the respondent, as well as the appellant were dealers of electronic goods of M/s.Kerala State Electronic Development Corporation Ltd. (KELTRON). It was averred that though the appellant was a dealer in electronic items of KELTRON, he was not able to make prompt payment to the KELTRON, and committed defaults now and then. KELTRON stopped the direct supply of electronic items to the appellant. Thereafter, he approached the plaintiff and requested to supply the same items to him, which was made available to him by the KELTRON. It was further averred that on several occasions, the appellant used to get electronic items on credit basis, and the credit ultimately accumulated to a sum of Rs.58,566.50. The appellant C.M.A.No.263 of 2001 2 stopped the dealership. Though he promised to repay the amount, he failed to pay the same. Ultimately, the appellant went to the office of the KELTRON at Ernakulam, and executed a pro-note on 7.12.1995, in favour of the respondent, plaintiff, promising to pay a sum of Rs.58,566.50, within six months from the date of execution of the said pro-note. It was further averred that though it was recorded that a cheque will also be issued, in fact, no cheque was issued. Inspite of notice, appellant did not repay the amount. Hence, the suit. 2. Appellant filed a written statement contending that he did not execute any pro-note. It was further averred that a signed blank paper was obtained from him for the purpose of showing the same to KELTRON to recover the amount due to respondent-plaintiff from the KELTRON. It was further averred that there was no debt due from the appellant to the respondent. It was also contended that pro- note executed was without any consideration. The appellant never promised to issue any cheque. It was further contended that he received two suit notices and for both the notices, he had sent replies. The trial court raised the following issues:- C.M.A.No.263 of 2001 3 “1. Whether the promissory note is executed by the defendant ? 2. Whether the promissory note is supported with consideration ? 3. Whether the plaintiff is entitled to realise any amount from the defendant ? Is so what is the quantum ?” 3. The trial court found issues 1 and 2 in favour of the plaintiff and dismissed the suit, on the sole ground that pro-note was insufficiently stamped. Challenging the decree and judgment passed, respondent-plaintiff filed A.S.No.99/1999 before the Sub Court, Ernakulam. The learned Subordinate Judge took a view that there were pleadings to the effect that the claim is based on original cause of action. Hence, it set aside the decree and judgment passed by the trial court, and remanded the matter. Challenging the order of remand, this appeal is filed. 4. This C.M.A. was admitted in the year 2001. At the time of admission, no substantial questions of law were framed. But, at the time of hearing, this Court has raised the following substantial question of law. “Whether a suit based on a pro-note which was C.M.A.No.263 of 2001 4 dismissed by the trial court, the appellate court can set aside the judgment and decree passed by the trial court and remand the matter for considering a claim on the ground of original cause of action, though there was no factual foundation for such a plea.” The appeal was heard on the question of law framed. 5. The learned counsel appearing for the appellant- defendant has argued before me that a reading of the entire plaint will show that the suit was based on the pro-note alone and there is no averment regarding the original cause of action. In the plaint, there was an averment that the plaintiff as well as the defendant were dealers of Electronic goods of KELTRON. It was also averred that initially KELTRON supplied goods to the appellant directly, and as he committed default, they stopped the same. Thereafter, the respondent-plaintiff started supply of goods to the appellant. It was also averred that on various occasions, goods were supplied and an amount of Rs. 58,566.50 was due, and the appellant came to the office of the KELTRON, at Ernakulam, and executed a pro-note on 7.12.1995, undertaking to repay that amount, after six months. It was also averred that the document was attested by a sale officer of KELTRON. C.M.A.No.263 of 2001 5 These facts were not denied in the written statement. Lower appellate court took a view that these averments are sufficient to constitute a claim based on original cause of action. I am of the view that, that matter also can be left open to be decided by the trial court. The suit was for money, which was dismissed. The records show that after the evidence of the plaintiff was over, the respondent filed a petition to advance the hearing, produced certain documents and also filed a petition to re-open the case for evidence. The records do not show that the appellant filed any objection to those applications. Still, the trial court took a view that if the applications were allowed, it will cause great injustice and prejudice to the defendant. The view taken by the learned Sub Judge is unreasonable. He ought to have given an opportunity to the plaintiff to adduce further evidence. So, I am of the view that without making any observation, the matter can be remanded to the trial court for fresh consideration, in accordance with law. Hence, I do so. The question whether there is sufficient pleadings is also left open to be decided by the trial court. I also make it clear that it is open to both sides to amend the pleadings and to adduce further evidence, if so advised. C.M.A.No.263 of 2001 6 In the result, the appeal is dismissed. The parties are directed to suffer their respective costs. The parties shall appear before the trial court on 19.2.2008. C.M.P.No.4484/2001 in C.M.A.No.263/2001 is dismissed. K.PADMANABHAN NAIR, JUDGE nj. K.PADMANABHAN NAIR, J. ------------------------------- C.M.A.No.263 of 2001 J U D G M E N T Dated:1st January, 2008. -------------------------------