IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRD DAY OF SEPTEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2505 of 2007 Between: Pallepalepu Ana Grace Raja Rajeswari Devi .. Petitioner AND Rayaprolu Suryabhanumathi and others .. Respondents ORDER: The Civil Revision Petition is directed against the judgment and decree in A.S.No.5 of 2001 on the file of the Court of VII Additional District Judge, Kakinada, dated 7-6-2005, which arose out of the judgment and decree dated 7-11-2000 in O.S.No.94 of 2000 on the file of the Court of Principal Junior Civil Judge, Peddapuram. The suit in O.S.No.94 of 2000 was filed by the 1st respondent herein against the revision petitioner herein and 4 others claiming that the defendants to the suit borrowed Rs.15,000/- repayable with interest at 24% p.a. on 01-05-1994 and executed a promissory note in favour of the plaintiff, but did not repay in spite of a registered notice, for which the revision petitioner herein gave a false reply. On the death of the 1st defendant in the suit on 05-08-1997, his legal representatives were brought on record as defendants 4 and 5, while the wife of the deceased 1st defendant was already on record as 2nd defendant. Defendants 1 and 2 resisted the suit contending that their signatures were obtained on blank stamp papers and the 3rd defendant put her signatures as attestor to the transaction of a loan of Rs.10,000/-. The loan of 1992 was not renewed and the suit promissory note was fabricated and a false notice was given. The 3rd defendant/revision petitioner herein denied the execution of the demand promissory note or taking any loan and contended that she merely accompanied the defendants 1 and 2 to the house of the plaintiff and she only attested the promissory note. The revision petitioner claimed that she is earning Rs.5,000/- per month as a teacher and had no necessity to borrow. Defendants 4 and 5 adopted the defence of the 1st defendant. The trial Court framed issues on the truth, validity and binding nature of the suit promissory note and the entitlement of the plaintiff to the suit claim and examined PWs.1 to 3 and DW.1 and marked Exs.A.1 to A.5 during trial. The trial Court rendered its judgment on 7-11-2000 referring to the evidence of PW.1 about the 3rd defendant borrowing the amount for her house repairs and noting the signatures of the revision petitioner to be not on the stamps affixed on the promissory note, but on the left hand side probablising her signature only as an attestor. The trial Court also noted the failure of the plaintiff to send the copy of the promissory note to the 3rd defendant in spite of her demand made in the reply notice to the suit notice and it was noted that there was no explanation in the plaint as to why the 3rd defendant’s signature was not obtained on the stamp and obtained at a place meant for attestation. Hence, the trial Court concluded that the evidence of PWs.2 and 3, who are colleagues of the plaintiff’s husband, and the evidence of the plaintiff, who was not present at the time of execution of the promissory note, cannot be acted upon to prove the truth of the promissory note. Consequently, the suit was dismissed with costs. Against the said judgment and decree, the plaintiff preferred A.S.No.5 of 2001 in which the impugned judgment was rendered and the Appellate Court noted that PW.1 was not cross-examined on behalf of the 1st defendant and the appellate Court was of the opinion that the defence of the 3rd defendant was contradictory. It noted that the word “witnesses” was not written above the signature of the 3rd defendant and the contents of the promissory note were as though all the three defendants borrowed the money. The non-examination of the 2nd defendant was also taken adverse notice of and the Appellate Court also brushed aside the non- examination of the scribe and the other attestor of the promissory note and tilted in favour of the plaintiff on the defendants not establishing their defence. The issuance of a suit notice prior to suit was also construed in favour of the plaintiff and in the absence of proof of any repayment by the defendants 1 to 3, the Appellate Court set aside the judgment and decree of the trial Court and decreed the suit with further interest at 12% and 6% p.a. respectively with costs. The revision petitioner/3rd defendant challenged the said decree and judgment in this revision contending that any admission of the defendants 1 and 2 could not have made the 3rd defendant liable for the claim. While reiterating the defence taken before the trial and Appellate Courts, the revision petitioner contended that the burden of proof could not have been placed on her in respect of the suit claim, more so, when there was no explanation as to why her signature was not obtained on the revenue stamp as executant. She, therefore, desired the impugned judgment and decree to be reversed. The 1st respondent-decree holder did not enter appearance before this Court in spite of personal service of notice of the revision and respondents 2 to 5, who are the other defendants in the suit, are stated to be not necessary parties and no notice was given to them. It should be first noted that the decree of the suit as against the defendants 2, 4 and 5 by the impugned judgment in appeal is not the subject matter of the consideration herein and the present consideration is confined only to the sustainability of the judgment and decree against the 3rd defendant to the suit. Sri C.V. Bhanoji Ramars, learned counsel for the revision petitioner is heard. The point for consideration is whether the revision petitioner could have been made liable for the suit claim? The trial Court, which had the benefit and advantage of seeing and observing the witnesses in flesh and blood, while they were deposing, preferred to consider the evidence of the revision petitioner as DW.1 as more reliable than the evidence of the plaintiff as PW.1. Admittedly, the plaintiff as PW.1 was unable to convince the trial Court about her presence at the time of execution of the suit promissory note, as she does not even know the attestors and the scribe of Ex.A.1 or the occupation of the attestors in spite of the scribe and the plaintiff’s husband being document writers and the attestors being workers in the same Registrar’s office. The trial Court also reasonably referred to the probability of the 3rd defendant signing only as an attestor to the promissory note in the light of her signature being admittedly found on the left hand side and not on the right hand side over the revenue stamps over which the executants sign in the ordinary and natural course of human events. The failure of the plaintiff to send a copy of the promissory note to the 3rd defendant in spite of a demand in the reply notice was also rightly relied on. Such a conclusion by the trial Court could have been interfered with by the Appellate Court only for very strong, weighty and convincing reasons. It is also seen from Ex.A.1 promissory note that the signatures of defendants 1 and 2 and the 3rd defendant are in blue ink, while the body of the promissory note and the signatures of the attestors and the scribe are in black ink. The 3rd defendant is patently not a member of the family of the defendants 1 and 2 and the purpose for which the loan was together taken by the defendants 1 to 3 was also different for defendants 1 and 2 and the 3rd defendant. In the ordinary and natural course of human events, they would have taken separate loans to the extent of the amounts required by them. Defendants 1 and 2 also supported the version of the 3rd defendant in their written statement, which they would not have done, if the claims of the plaintiff were true and having admittedly borrowed a sum of Rs.10,000/- from the plaintiff, they did not produce any evidence in the suit in spite of claiming the suit promissory note to be forged and fabricated. The Appellate Court in the impugned judgment could not have used the absence of the cross-examination on behalf of the 1st defendant, against the 3rd defendant and the judgment and the depositions of the witnesses show that the cross-examination was conducted on behalf of the 2nd defendant also, while the 1st defendant died even during the pendency of the suit and therefore, there could have been no cross-examination on his behalf. The contradiction between the defence of the 3rd defendant on the one hand and defendants 1 and 2 on the other could not have led to disbelieving the 3rd defendant, if she is otherwise reliable and the mention of the word “witnesses” below the signature of the 3rd defendant has to be explained by the plaintiff and not the 3rd defendant. If she was also an executant, the very location of her signature on the promissory note remains unexplained. Even the appellate judgment does not project PWs.2 and 3 to be independent witnesses. As to why the reply notice by the 3rd defendant should be suspected is not intelligible and the preponderance of broad human probabilities arising out of the evidence does not tilt in favour of the plaintiff as considered by the appellate Court and the conclusions of the trial Court insofar as they relate to the 3rd defendant deserve to be restored. Accordingly, the judgment and decree in A.S.No.5 of 2001 on the file of the Court of VII Additional District Judge, Kakinada, dated 7-6-2005 are set aside insofar as they concern the 3rd defendant to the suit and the suit in O.S.No.94 of 2000 on the file of the Principal Junior Civil Judge, Peddapuram (O.S.No.785 of 1995 on the file of the I Additional Junior Civil Judge, Kakinada) shall accordingly stand dismissed against the 3rd defendant without costs. The Civil Revision Petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 03-09-2010 Ksn