IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2-06-2010 CORAM THE HONOURABLE MR.JUSTICE M. VENUGOPAL C.R.P.(NPD) No.23 of 2004 and C.M.P. No. 129 of 2004 Rathnammal ... Petitioner/Plaintiff Vs 1.Balaiah @ Govindaswamy (died) 2.Gita 3.Silpa (Minor) 4.Rajesh (Minor) R3 and R4 are rep. by their mother R2 R2 to R4 are brought on record as legal representatives of the deceased first respondent as per order of this Court dated 26.6.2007 in C.M.P.Nos.10610 to 10612/06 ... Respondents/Defendant Civil Revision Petition filed Section 115 of the Civil Procedure Code against the Judgment and decree dated 19.7.2002 made in A.S.No.4 of 2001 on the file of the Learned Sub Judge, Tiruvallur reversing the Judgment and decree dated 23.10.2000 made in O.S.No.324 of 1996 on the file of the Learned District Munsif, Tiruvallur. For Petitioner : Mr.M.R.Kapali for M/s.M.V.Krishnan For Respondents : Mr.R.Chavan O R D E R The Civil Revision Petitioner/Respondent/Plaintiff has filed this Civil Revision Petition as against the Judgment dated 19.7.2002 in A.S.No.4 of 2001 passed by the Learned Sub Judge, Tiruvallur. 2.The Learned Appellate Authority viz., Sub Judge, Tiruvallur in his Judgment dated 19.7.2002 in A.S.No.4 of 2001 filed by the Respondent/Defendant, has among other things observed that "the Trial Court has come to a wrong conclusion that the Respondent/Defendant has received a sum of Rs.18,000/- from the Revision Petitioner/Plaintiff" and resultantly, allowed the Appeal with costs of both the Courts and dismissed the Cross Appeal filed by the Revision Petitioner/Plaintiff without costs. https://hcservices.ecourts.gov.in/hcservices/ 3.Being dissatisfied with the Judgment and decree dated 19.7.2002 in A.S.No.4 of 2001 passed by the Learned Sub Judge, Tiruvallur, the Revision Petitioner/Plaintiff has projected this Civil Revision Petition before this Court. 4.The point that arises for consideration in this Civil Revision Petition is - "Whether the Judgment dated 19.7.2002 in A.S.No.4 of 2001 passed by the Learned Appellate Authority viz., Sub Judge, Tiruvallur is correct in the eye of law?" Contentions, Discussions and Findings on Point No.1: 5. According to the Learned counsel for the Revision Petitioner/Plaintiff, the Learned Appellate Authority viz., Sub Judge, Tiruvallur should have drawn an adverse inference against the Respondent/Defendant for not examining himself to rebut the evidence on the side of the Revision Petitioner/Plaintiff and further, Ex.A1, Mortgage Deed dated 25.10.1990 ought to have held as proved by the Revision Petitioner/Plaintiff on the basis of the evidence of P.W.1, Scribe-P.W.2, the Respondent/Defendant's Paternal Uncle, P.W.3 and the brother of the Respondent/Defendant, P.W.5. 6. It is the further contention on the side of the Revision Petitioner/Plaintiff that the Learned Sub Judge, Tiruvallur has failed to take note of the fact that though the Deceased Respondent/Defendant denied that he was not the person described in Ex.A1, Mortgage Deed dated 25.10.1990, yet it has been conclusively proved that the Deceased Respondent/Defendant has executed the said Mortgage Deed. 7. Continuing further, it is the contention on the side of the Revision Petitioner/Plaintiff that the Learned Sub Judge, Tiruvallur has committed an error in finding out a new case (which has not been pleaded by the Deceased Respondent/Defendant) that there can be another document executed by the Deceased Respondent/Defendant written by one Ragupathy. In fact, the Learned Sub Judge, Tiruvallur has ignored the document by way of suggestion put to P.W.3 admitting money transaction and indeed, the consideration as per Ex.A1 Mortgage Deed dated 25.10.1990 has been proved by the existing anterior family debt owed by the deceased Respondent/Defendant to the Revision Petitioner/Plaintiff. 8. The substance of the contention of the learned counsel for the Revision Petitioner/Plaintiff is that when once the execution of Ex.A1, Mortgage Deed dated 25.10.1990 has not been denied, onus shifts to the Deceased Respondent/Defendant to prove his case. But this aspect of the matter has not been appreciated by the Learned Appellate Authority in a real perspective which has resulted in miscarriage of justice. Therefore, he prays for https://hcservices.ecourts.gov.in/hcservices/ allowing this Civil Revision Petition to promote substantial cause of justice. 9. The Learned counsel for the Revision Petitioner/Plaintiff cites the decision of the Hon'ble Supreme Court in Gurdev Kaur and others v. Kaki and others, (2007) 1 SCC 546, wherein, it is held that 'justice should be administered in accordance with law and not according to Judge's whim, desire and notion of justice'. 10. He also relies on the decision of this Court in K.Chockalingam v. K.R.Ramasamy Iyer and another, 2004-4-L.W.586, wherein it is observed that 'the Second Appeal being not maintainable under Section 102, C.P.C (as the value of the suit was less than Rs.25,000/-), C.R.P. under Section 115, C.P.C., cannot lie, but it was allowed to be converted into one under Article 227 of the Constitution of India etc. and decree granted against the first Defendant'. 11. Per contra, the Learned counsel for the Respondents/Defendants supported the Judgment of the Learned Sub Judge, Tiruvallur dated 19.7.2002 made in A.S.No.4 of 2001 submits that the Learned Appellate Authority viz., Sub Judge, Tiruvallur has taken into account all the facts and circumstances of the case and appreciated the available oral and documentary evidence on record and arrived at a proper conclusion and therefore, this Court sitting in Revision at this stage need not interfere with the same. 12. In the plaint filed by the Revision Petitioner/Plaintiff, it is among other things mentioned that the Deceased Respondent/Defendant was in urgent need of funds for the purchase of lands that fell to the share of his brother and on being approached, the Revision Petitioner/Plaintiff gave a sum of Rs.18,000/- to the Deceased Respondent/Defendant on 25.10.1990 as loan which carries interest of 24% p.a. and on the same date, the Deceased Respondent/Defendant executed a document called as mortgage deed which is bad in law for want of proper stamp and registration and therefore, the Plaintiff will file the same after curing the stamp deficiency. 13. Further, it is the case of the Revision Petitioner/Plaintiff that the entire transaction was witnessed by Rangaswamy Naidu, S/o.Kondama Naidu. The Deceased Respondent/Defendant failed to turn up with funds as promised and the Revision Petitioner/Plaintiff issued a legal notice dated 6.8.1992 to the Deceased Respondent/Defendant calling upon him to return the loan amount and notice mentioned about the Deceased Respondent/Defendant's Father name as Chandriah and it is a drafting error and the Deceased Respondent/Defendant gave a false reply dated 13.8.1992 and since the claim cannot be enforced as mortgage, the suit is presented as a simple money claim. 14. The stand of the Deceased Respondent/Defendant in the written statement is that he never borrowed a sum of Rs.18,000/- https://hcservices.ecourts.gov.in/hcservices/ from the Revision petitioner/Plaintiff on 25.10.1990 as alleged and he never agreed to pay interest and never executed any document or Mortgage Deed and the persons mentioned in para 3 of the plaint are associates of the Revision Petitioner/Plaintiff and no person by name Gangadharan arranged the transaction and when notice was addressed to Chandriah's son and when reply was sent, the suit was filed against a different person. 15. Also, it is the stand of the Deceased Respondent/Defendant that a Mortgage deed for a sum of Rs.100/- alone shall be a registered document, engrassed on a proper stamp and if this is absent, the said document not at all admissible in evidence and that the said document cannot be looked into for any purpose. 16. In the plaint, the Deceased Respondent/Defendant has signed in Telugu. In the written statement, the Deceased Respondent/Defendant has also signed in Telugu. A perusal of the recitals of Ex.A1, Mortgage Deed dated 25.10.1990 go to show that the Deceased Respondent/Defendant has created an equitable mortgage in respect of punja land with well and oil engine for Rs.18,000/- to and in favour of the Revision Petitioner/Plaintiff. The rate of interest agreed to mentioned as Rs.2 per Rs.100/-. In the said Ex.A1, Mortgage Deed dated 25.10.1990, it is mentioned that the Deceased Respondent/Defendant has to pay the sum of Rs.18,000/- together with interest at Rs.2/- per Rs.100/- on demand being made either to the Revision Petitioner/Plaintiff or to the authorised representatives. 17. In Ex.A1, Mortgage Deed, two witnesses have signed in Telugu and the said document has been written by one Karunai Prakasam. 18. It is the evidence of P.W.1 (Revision Petitioner / Plaintiff) that she lent a sum of Rs.18,000/- in the year 1990 to the Deceased Respondent/Defendant and the deceased Respondent/Defendant agreed to pay interest at Rs.2/- per Rs.100/- and the Respondent/Defendant, for purchase of land has taken loan from her and that the Accountant Ragupathy knows about the loan transaction given to the Respondent/Defendant and he has written the loan document and at the time, when the money was lent to the Respondent/Defendant Gangadharan was alive and that the Respondent/Defendant has approached the Accountant with him and that the Accountant alone has written the document and that the Accountant read the document and she lent money to the Respondent/Defendant and the Respondent/Defendant signed in the document and when she asked for money from the Respondent/Defendant, he has not paid the same. 19. P.W.2 has stated in his evidence that he does not know about the dealings between the Revision Petitioner/Plaintiff and the deceased Respondent/Defendant and that he has gone to Oothukottai and on the way to Oothukottai Sub Registrar Office, near a house Gangadharan, Rangasamy, Venkatachalapathy and Rama https://hcservices.ecourts.gov.in/hcservices/ Naidu were standing and that the Respondent/Defendant has to owe an amount to the Revision Petitioner/Plaintiff for which they asked him to write a document and accordingly, he has written the same and that he has signed Ex.A1, Mortgage Deed and he has written the document on the dictation of one Gangadharan. 20. P.W.3 in his evidence has stated that since he is not having a proper vision, he is not in a position to identify the signature found in Ex.A1 and that the Deceased Respondent/Defendant is his brother's son and that the Respondent/Defendant received the loan for his sister's marriage and that the Revision Petitioner/Plaintiff demanded money from the Deceased Respondent/Defendant and that by pledging the land, the money was demanded and if the land has been mortgaged, the money was to be given; but he does not know whether any mortgage deed was executed and later, the document was written and that he along with Rama Naidu signed the same. 21. P.W.4 in his evidence has stated that the Deceased Respondent/Defendant owes a sum of Rs.18,000/- from the Revision Petitioner/Plaintiff and that, the said outstanding arose out of the loan taken for Ramachandra Naidu daughter's marriage taken by Rathinammal from Rajagopal Naidu and the loan was taken in the year 1989 and after the marriage, Ramachandra Naidu expired and a bond for Rs.8,600/- in favour of Rama Naidu and another bond for Rs.8,600/- in favour of Rathinammal in the year 1989 during March were written and for the family outstanding, the equivalent mortgage was created and Ex.A1 first page, the signature of the Respondent/Defendant finds place and Ex.A1, mortgage deed dated 25.10.1990 was written by Karunai Prakasam. In the cross examination, P.W.4 has stated that he was not aware of the fact that whether on the basis of two bonds any case was filed. 22. P.W.5 in his evidence has stated that his father Ramachandra Naidu executed a bond in favour of Rathinammal and on the basis of bond loan, the same was fashioned on him on partition and the Revision Petitioner/Plaintiff demanded back the said loan from him for which, his brother, the Deceased Respondent/Defendant informed that he will retain the land and wipe of the loan and accordingly, he written the land to his brother and his brother has gone to Rathinammal and wrote a ten rupees stamp paper about which his personal knowledge and the said document was written by Prakasam and in Ex.A1 first page, his brother has signed as Govindaswamy and the land has been given for the loan. 23. A perusal of Ex.A1, Mortgage deed dated 25.10.1990 shows that in the Trial Court, a total penalty of Rs.5940/- has been levied on 21.8.2000 towards stamp duty. The Revision Petitioner/Plaintiff has not enforced the mortgage but filed the suit as a simple money claim. 24. At this stage, this Court pertinently points out that P.W.1 in her evidence has stated that Venkatram Naidu, materal uncle knows about the loan taken by the Respondent/Defendant and https://hcservices.ecourts.gov.in/hcservices/ that since Venkatram Naidu is aged about 80 years and not keeping in good health, he cannot come to court for adducing oral evidence. Admittedly, the said Venkatram Naidu has not been examined before the Trial Court. Though P.W.1 in her evidence has stated before the Trial Court that Ex.A1 mortgage Deed has been written by Ragupathy but a perusal of Ex.A1 mortgage deed dated 25.10.1990 shows that the same was written by Karunai Prakasam. More over, the said Ragupathy has also not been examined as a witness before the Trial Court. But the evidence of P.W.3 is to the effect that since he is not having proper vision and therefore, he is unable to point out his signature in Ex.A1 and further that, he does not know about anything about the writing of the mortgage but says in his evidence later the document was written. However, the evidence of P.W.4 is to the effect that one bond for Rs.8600/- was for Ramachandra Naidu and another bond during March 1989 for Rs.8600/- was in favour of Rathinammal and only for family debt, the equitable mortgage loan came into existence and he was aware of the same directly. 25. In the present case, the evidence of P.W2 is to the effect that he does not know about the dealing between the Revision Petitioner/Plaintiff and the Respondent/Defendant and that he has written Ex.A1, Mortgage Deed and signature found in Ex.A1 document. In effect the evidence of P.W.2 is not in corroboration with the evidence of P.W.1 (Revision Petitioner/Plaintiff) to the effect that the Deceased Respondent/Defendant has taken a loan of Rs.18,000/- on 25.10.1990. As per Ex.A1, mortgage Deed, when the Deceased Respondent/Defendant has taken a plea in the written statement that he has borrowed a sum of Rs.18,000/- from the Revision Petitioner/Plaintiff on 25.10.1990 and that he has not agreed to pay interest and not executing any document on mortgage deed and then it is for him to prove the same by adducing necessary oral or documentary evidence before the Trial Court. Unfortunately, in the Trial Court, on the side of the Respondent/Defendant, no evidence has been adduced. 26. Now, before this Court, in C.M.P.Nos.10610 to 10612 of 2006, the Respondents 2 to 4 have been brought on record as legal Representatives of the Deceased first Respondent/Defendant and the second respondent has been appointed as Guardian of the minor Respondents 3 and 4. 27. The Trial Court on appreciation of oral and documentary evidence, in its judgment in O.S.No.324 of 1996 on 23.10.2000, has come to the conclusion that on 25.10.1990, the deceased Respondent/Defendant has received a sum of Rs.18,000/- and executed Ex.A1 Mortgage deed. 28. However, the First Appellate Court in its judgment in A.S.No.4 of 2001 on 19.7.2002, has observed that the witnesses of P.Ws.2 to 5 have not stated that the Plaintiff gave a sum of Rs.18,000/- to the deceased Respondent/Defendant on 25.10.1990 etc. https://hcservices.ecourts.gov.in/hcservices/ 29. At this stage, this Court points out the decision in Prerepa Bhagavat Sastrulu and another v. Saridey Lakshmikantam, A.I.R. 1940 Madras 511, wherein, it is held as follows: "As a general rule it is undesirable to remand a case merely in order to give an opportunity to both parties to adduce evidence which might and ought to have been put before the trial Court; and there is a clear danger that such a remand order may in effect be an invitation to perjury. But where the Appellate Court found that a concubine of a deceased Hindu was entitled to maintenance and having regard to the facts that she had got a decree in a connected suit for a certain debt due from the estate of the deceased and that there was another claim for maintenance against the same estate brought by a widow of the deceased which had been remanded for taking further evidence as to the quantum of the assets and liabilities of the estate, remanded the case of the concubine also for further evidence on the same point, the evidence in both cases to be taken in common, the remand was held justified and proper". 30. In Raghabendra Bose and others v. Sunil Krishna Ghose and others, (2005) 12 SCC 309, the Hon'ble Supreme Court has observed that 'the Superior Court is precluded from giving observations on merits when it remands the matter'. 31. In The Technological Institute of Textiles v. Workmen and others reported in (1972) 4 SCC 26, the Hon'ble Supreme Court has held as follows:- "Where the Industrial Tribunal has been doing nothing but merely adjourning the matter for over two years at the request of the respondents (workmen) but when a request to adduce evidence on behalf of the appellant (employers) was rejected and closed the case suo motu, held, the appellant had no opportunity to adduce any evidence and an award passed against the appellant on mere conjecture and guess must be set aside as highly arbitrary and unjust". 32. In, Ranganath Parmeshwar Panditrao Mali and another v. Eknath Gajanan Kulkarni reported in (1996) 7 SCC 681 at 685, the Hon'ble Supreme Court has among other things observed thus, "...the next question that arises for consideration is whether prayer for injunction granted by the trial court in favour of the plaintiffs would have been reversed by the lower appellate court? We find from the judgment of the lower appellate court that instead of considering the evidence and the consequential finding of possession in favour of the plaintiffs by the trial court the lower appellate court merely https://hcservices.ecourts.gov.in/hcservices/ reversed the judgment once coming to the conclusion that the plaintiffs are not the legal heirs of Panditrao. In fact there is no consideration of evidence of possession by the lower appellate court or by the High Court. In that view of the matter it would not be proper for this Court to finally conclude the question and on the other hand it would be proper to remit the matter to the lower appellate court. In the aforesaid circumstances, the judgment and decree of the High Court as well as those of the Additional District Judge, Ahmednagar are set aside. Question of Shevantabai being the wife of Panditrao and the plaintiffs being legal heirs of Panditrao is concluded and would not be reopened. But the lower appellate court would reconsider the evidence and the findings on the question of possession to decide the relief of injunction". 33. It cannot be gain said that a Court of law cannot exclude the evidence of witnesses available on record while rendering its judgment in Appeal. 34. As far as the present case is concerned, on going through the judgment of the First Appellate Court in A.S.No.4 of 2001 dated 19.7.2002, this Court is of the considered view that the First Appellate Court has indulged in surmises, conjectures, suppositions and guess while rendering its findings and they are not quite in consonance with the pleadings and evidence available on record. Therefore, this Court on the basis of Equity, Fair Play and Good Conscience opines that necessary opportunities will have to be provided to the respective parties to adduce further oral and documentary evidence if any to prove their respective stands and accordingly, this Court without going into the merits of the matter and without expressing any opinion touching the case, allows the Civil Revision Petition by setting aside the Judgment of the Learned Appellate Authority viz., Sub Judge, Tiruvallur dated 19.7.2002 in A.S.No.4 of 2001 and remits back the matter to the Learned First Appellate Authority viz., Sub Judge, Tiruvallur for fresh disposal in accordance with law. Since, this Court has set aside the judgment in A.S.No.4 of 2001 dated 19.7.2002 on the file of the Learned Sub Judge, Tiruvallur, this Court also sets aside the judgment in Cross Appeal dated 19.7.2002 and grants liberty to the Revision Petitioner/Plaintiff to re- agitate the same subject matter before the Learned Sub Judge, Tiruvallur. 35. In the result, the Civil Revision Petition is allowed leaving the parties to bear their own costs. Consequently, the Judgment and Decree dated 19.07.2002 passed in A.S.No.4 of 2001 and the Cross Appeal passed by the Learned Appellate Authority viz. Sub Judge, Tiruvallur are set aside. The matter is remitted back to the Learned Sub Judge, Tiruvallur who is directed to dispose of the Appeal Suit and Cross Appeal by permitting the https://hcservices.ecourts.gov.in/hcservices/ parties to adduce both the oral and documentary evidence, if they so desire within a period of three months from the date of receipt of a copy of this order and to report compliance to this Court without fail, since the Appeal is of the year 2001 and the Suit is of the year 1996. The parties are directed to lend a helping hand to the Court to complete the proceedings of the Appeal Suit and the Cross Appeal. Consequently, connected Miscellaneous Petition is closed. rk Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Subordiante Judge, Tiruvallur. 2.The District Munsif, Tiruvallur. 3.The Section Officer, Judicial Section High Court, Madras-104. C.R.P.(NPD) No.23 of 2004 and CMP.No.129/2004 TAM(CO) SR/10.6.2010 https://hcservices.ecourts.gov.in/hcservices/