HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.1481 of 2003 Date: 25-11-2011 Between Polubothu Appayamma (died) and 2 others … Petitioners/Plaintiffs and Uppala Papayamma … Respondent/Defendant HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.1481 of 2003 Order: Aggrieved by the judgment and decree, dated 31- 10-2002, in Small Cause Suit No.83 of 2000 on the ﬁle of the Principal Senior Civil Judge, Rajahmundry, East Godavari district, the present civil revision petition is filed. 2. The revision petitioners herein are the plaintiﬀs 1 to 3 in S.C. Suit No.83 of 2000. They ﬁled the suit for recovery of money. The trial Court, on evaluating the evidence on record, dismissed the said suit. Being aggrieved by the said judgment, the present revision is filed. 3. Sri T.S.Anand, learned counsel for the petitioners-plaintiﬀs, mainly urged that the trial Court failed to consider the evidence on record in correct perspective and that it also failed to see that when once it was admitted that the bankers cheques were encashed by the defendant, the burden is on the defendant to prove under what circumstances, the amount was received by her. 4. Now, the point for consideration is : Whether the impugned judgment is sustainable ? 5 . Point:- As seen from the impugned judgment, the plaintiﬀs ﬁled the suit against the defendant claiming an amount of Rs.9,000/-. Admittedly, the 1st plaintiﬀ and the defendant are neighbours and there was a longstanding litigation between them. During the pendency of the dispute before this Court, there was a compromise between the parties and in terms of the said compromise, an amount of Rs.9,000/-to be paid to the defendant to compensate the litigation. Accordingly, the 1st plaintiﬀ paid an amount of Rs.9,000/- under two bankers cheques dated 10-9-1996 and 31-10-1996 and the defendant encashed the said amount and thereafter, the defendant did not act upon the compromise. Then the plaintiﬀs ﬁled the suit for recovery of money. 6. In proof of the claim of the plaintiﬀs, P.Ws.1 to 3 were examined and got Exs.A-1 and A-2, and X-1 to X-5 were marked. On behalf of the defendant, one Uppada Simhachalam, husband of the defendant, was examined as D.W.1 and no documentary evidence was adduced. 7. A perusal of the written statement ﬁled by the defendant shows that she denied the entire transaction including the payment of Rs.9,000/- by way of two bankers cheques. The plaintiﬀs, in order to prove the transaction under two bankers cheques about payment of Rs.9,000/-, got marked Exs.X-1 to X-5 through the evidence of P.Ws.2 and 3. P.Ws.2 and 3 are none other than the employees of the bank, who deposed that the defendant encashed the amount thereunder. 8. D.W.1 is the husband of the defendant and he also admitted in his evidence that the defendant received Rs.9,000/- through two bankers cheques and same was encashed, but deposed that the said amount of Rs.9,000/- was towards the cost of the construction of the joint compound wall. Strangely, the said contention was not raised in the written statement. The said plea of receiving that amount of Rs.9,000/- towards the construction of the compound wall is an after-thought. Moreover, when the defendant admitted that they have received the amount of Rs.9,000/- under two bankers cheques Exs.A-1 and A-2, it is for the defendant to prove that the said amount was received in lieu of the alleged cost of the construction of the joint compound wall. Moreover, the said assertion was not averred in the written statement. 9. The plaintiﬀs examined P.Ws.2 and 3 and proved Exs.X-1 to X-5 about the payment of money to the defendant. On the other hand, D.W.1, the husband of the defendant, himself admitted that the defendant received the amount of Rs.9,000/-. If that be the case, it is for the defendant to prove under what circumstances she received Rs.9,000/-. 10. As already observed, the averment in the written statement ﬁled by the defendant is denying the averments of the plaintiﬀs including receipt of Rs.9,000/- . Therefore, in any view of the matter, the ﬁnding of the trial Court that the plaintiﬀs failed to discharge their burden cannot be appreciated in view of the admission of D.W.1 in his evidence regarding receipt of Rs.9,000/-. 11. When there is variation between a pleading and evidence as in the case of the defendant, the said variation is to be noted seriously while adjudicating the matter. Therefore, a presumption shall be drawn in favour of the petitioners-plaintiﬀs that the defendant received the amount of Rs.9,000/-. 12. During the course of arguments, the learned counsel for the petitioners brought to the notice of this Court regarding the compromise entered into between the parties. Having gone through the contents thereunder, the defendant failed to perform her part of contract as agreed under the said compromise. 13. Therefore, in any view of the matter, the ﬁnding of the trial Court is not sustainable. Accordingly, the civil revision petition is allowed setting aside the judgment under revision. No costs. ___________________ K.S.APPA RAO, J. 25th November, 2011. Ak HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.1481 of 2003 25th November, 2011. (Ak)