THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE GURIJALA KRISHNA MOHAN REDDY A.S.No.248 OF 2005 JUDGMENT: (per B.PRAKASH RAO,J) The appellant herein who is the unsuccessful plaintiff filed this appeal under Section 96 C.P.C. inter alia seeking to assail the correctness of the judgment and decree dated 21.02.2005 in O.S.No.34 of 2003 on the file of the II Additional District Judge, Ongole dismissing the suit filed by him for recovery of Rs.12,17,437/-. Briefly, the facts are that in the suit the appellant/plaintiff sought for recovery of a sum of Rs.12,17,437/- being the principal amount on pro-note for Rs.7,10,000/- and interest thereon at Rs.5,07,437/-. The case of the appellant in the plaint in short is to the effect that the respondents/defendants are legal representatives of one Gaddipati Venugopala Rao (deceased) who executed pro-note dated 15.11.2000 which is marked as Ex.A1 and consequently, died in the year 2003 and therefore, the respondents are liable for the suit amount. In spite of the demand made by the appellant no amount was paid. Hence, the appellant filed the suit. The suit was contested by respondents 1, 3 to 5 by filing the written statement denying about issuance of suit pro-note by the deceased. The second respondent remained ex parte. A specific plea has been taken that suit pro-note is a forged one. It is stated that in view of the disputes existing between the deceased and his elder brother G. Srinivasa Rao suit pro-note has been brought into existence. Hence, the suit is liable to be dismissed. With these and other allegations, the court below framed the following issues: 1) Whether the suit pro-note is true, valid and supported by consideration? 2) To what relief? During the course of trial on behalf of the appellant PWs 1 to 4 were examined and Exs. A1 to A5 were marked and on behalf of the respondents DWs 1 to 4 were examined but no documents were marked. The court below after taking into account the evidence and the material available on record did not find favour with the appellant and came to the conclusion that Ex.A1 is forged one and dismissed the suit. Hence, the appeal. Having heard the learned counsel on either side and after perusing the evidence and also material available on record, now the point that arises for consideration is whether the suit claim is sustainable. The case as stated above on behalf of the appellant is that the respondents who are the legal representatives of the deceased who executed the promissory note are liable for suit claim. PW1 who is the appellant marked Ex.A1 pro-note. The principal amount which is said to have been borrowed is Rs.7,10,000/- and interest thereon is Rs.5,07,437/-. In proof of Ex.A1, appellant examined PW2 who scribed it. PW3 is the first attestor and PW4 who is the employee of the government was examined to prove that the appellant has capacity to lend such huge amount. On behalf of the respondents the father of the deceased was examined as DW1, wife of the deceased was examined as DW2 and DWs 3 and 4 are the mortgagees. On a perusal of the entire judgment of the court below, it is quite apparent that except extracting the depositions of the witnesses there is no finding as to the acceptance or rejection of their evidence. However, ultimately in paragraph 10, the court below did not accept the case of the appellant on two grounds that the second attestor who is the brother of the deceased was not examined and that there is no demand prior to the filing of the suit. Therefore, the same is fatal to the case of the appellant. Further, there is no effort made by the appellant for sending the suit document along with the admitted signatures of the deceased for expert opinion. Curiously, the lower court by placing reliance on Section 73 of the Evidence Act, 1872 (for short ‘the Act’) compared Ex.A1 with the original mortgage deed dated 18.11.2002 executed by the deceased which was filed in O.S.No.233 of 2004 on the file of Senior Civil Judge, Ongole and found that the signatures are not tallying and came to the conclusion that Ex.A1 is forged one. It is curious to note that the document with which Ex.A1 was compared has not been marked. The court below did not give any reason as to how the document dated 18.11.2002 was taken on record. There is also nothing to indicate as to why no exercise has been done under Section 45 of the Act either by the appellant or by the court below in respect of Ex.A1. The entire approach of the court below and the manner in which Ex.A1 has been dealt with by invoking Section 73 of the Act is totally incorrect and impermissible. Except giving a finding that Ex.A1 is a forged one, the court below did not consider the depositions, especially the evidence of PW2 who is the scribe nor gave any finding as to why the evidence of the witnesses cannot be accepted. In the circumstances, we are of the view that the matter requires fresh enquiry. Accordingly, the appeal is allowed and the judgment and decree of the court below is set aside and the matter is remitted to the court below for fresh disposal in accordance with law after giving opportunity to both sides. It is also made clear that the parties can take all such steps and lead any further evidence as they are entitled to under law. B.PRAKASH RAO,J GURIJALA KRISHNA MOHAN REDDY,J Dated: 20.01.2011 lvl THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE GURIJALA KRISHNA MOHAN REDDY A.S.No.248 OF 2005 (per B.PRAKASH RAO,J) Dt. 20.01.2011