IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.488 of 2011 Date: 21.07.2011 Between: S. Naseer Ahamed .....Appellant AND N. Christopher ....Respondent THE HON’BLE SRI JUSTICE K.C.BHANU SECOND APPEAL No.488 of 2011 JUDGMENT: 1. This appeal is directed against the judgment and decree dated 26.02.2011 passed by the IV Additional District Judge, Kurnool whereunder and whereby the judgment and decree in O.S.No.899 of 2006 dated 11.12.2007 passed by the Principal Junior Civil Judge, Kurnool were confirmed. 2. The parties are referred to as they are arrayed in the suit in the trial court. 3. The brief facts that are necessary for disposal of the appeal are: The plaintiff filed the suit for recovery of Rs.85,000/- on the strength of the promissory note executed by the defendant for a sum of Rs.50,000/- agreeing to repay the same with interest at the rate of 24% p.a, and since the defendant failed to discharge the debt inspite of receiving legal notice got issued by him on 11.5.2006 and for issuing reply with false allegations without discharging the debt, the suit was filed. 4. The defendant filed written statement stating that he borrowed a sum of Rs.50,000/- only from the brother-in-law of the plaintiff by name Obulesu, but with an understanding to adjust the interest accrued on the promissory note debt towards rent of the house taken by the husband of the plaintiff on monthly rental basis, but the brother-in-law of the plaintiff without paying any rent and adjusting the interest as accrued on the promissory note debt towards discharge of the debt, got filed the suit in the name of the plaintiff, even though he had no acquaintance with him for any such money transactions. 5. Basing on the pleadings the following issues are framed for trial: 1. Whether the suit promissory note is true, valid and binding on the defendant? 2. To what relief? 6. To substantiate the case of the plaintiff, he himself was examined as P.W.1 and got marked Exs.A.1 to A.3. On behalf of the defendant, D.Ws.1 and 2 were examined and no documents were marked. 7. The trial court after considering the entire evidence on record, came to the conclusion that the defendant had borrowed money from the plaintiff and executed suit pronote and accordingly decreed the suit. On appeal, the appellate court has confirmed the same. Aggrieved thereupon, the present appeal is filed. 8. Now the point for consideration is whether there is any substantial question of law involved so as to admit the appeal? 9. The filing of second appeal is not automatic or routine. The appellant must show that there is substantial question of law involved in the appeal. If the findings are not based upon any evidence or perverse findings are recorded by both the courts below or inadmissible evidence is taken into consideration or admissible evidence is overlooked, are some of the instances where the second appeal can be admitted. 10. The evidence of P.W.1 would go to show that the defendant borrowed a sum of Rs.50,000/- from the plaintiff on 8.6.2003 and executed a promissory note Ex.A.1. Therefore, from the evidence of P.W.1, it is very clear that the defendant has borrowed an amount of Rs.50,000/- from the plaintiff. The contention of the defendant is that he borrowed money from the brother-in-law of the plaintiff by name R. Obulesu and that he was a tenant of the said Obulesu and with an understanding between them, the rent payable to the defendant by the said Obulesu will be adjusted towards interest for every month. Subsequently, he discharged the principal amount and interest, but Obulesu did not return the promissory note and postponed the same on one pretext or the other. 11. The execution of Ex.A.1 promissory note is not in dispute. Therefore, the initial burden of the plaintiff has been discharged. As the defendant has taken a specific plea that he borrowed money from R. Obulesu and executed a promissory note and due to misunderstandings the said R. Obulesu got filed the suit through his brother-in-law and when the fact as ascertained by the defendant saying that the promissory note was executed in favour of R. Obulesu, it is for the defendant to establish the same. He has not taken the effective steps to summon the said R. Obulesu to return the promissory note when he already paid the amount covered by the promissory note. No steps have also been taken to summon R. Obulesu to examine him on behalf of the defendant. No doubt, R. Obulesu is none other than the brother-in-law of the plaintiff, but at the same time the defendant ought to have examined him as a witness to substantiate his plea whether he supports the case of defendant or not is a different matter. 12. The first substantial question of law raised is that Ex.A.1 promissory note is not supported by any consideration, but the same cannot be countenanced in view of the fact that the execution of Ex.A.1 is admitted by the defendant. Once it is admitted, it is presumed that Ex.A.1 promissory note is supported by consideration. The other contention that Ex.A.1 was given as a collateral security has not been established because there is no other evidence. The appreciation of evidence by the courts below is not shown to be improper either adversely or contrary to law. Hence, the question of admitting the second appeal does not arise. The appeal is devoid of merit and is liable to be dismissed. 13. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs. ______________ K.C.BHANU,J Date: 21st July, 2011. Gk THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.488 of 2011 Date: 21.07.2011 Gk.