HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1027 of 2010 Dated: 12-11-2010 Between: Tungala Venkata Panduranga Rao …Appellant AND Tungala Srinivasa Perumallu Respondent. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.1027 of 2010 JUDGMENT: Unsuccessful defendant before the Courts below filed this second appeal challenging the judgment and decree passed by the Senior Civil Judge, Avanigadda in A.S.No.25 of 2008, dated 02.09.2010, whereby the appeal filed by the defendant was dismissed confirming the judgment and decree passed by the Principal Junior Civil Judge, Avanigadda in O.S.No.274 of 2007, dated 29.08.2008 decreeing the suit of the plaintiff filed for recovery of the amount based on a pronote. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. The plaintiff instituted the above suit against the defendant based on a pronote for recovery of Rs.50,000/- stating that the defendant borrowed an amount of Rs.50,000/- from him on 16.8.2001 for family expenses and executed the suit promissory note with his own hand writing agreeing to repay the same with interest at the rate of 12% per annum. Subsequently, the defendant made part payment of Rs.2,000/- on 9.8.2004 and endorsed the same on the back of the promissory note with his own hand writing. Later, as the defendant failed to repay the balance amount, the plaintiff got issued legal notice and that the defendant having received the notice did not pay the amount. Hence the suit. The defendant while traversing the plaint averments contended that he has not executed any suit promissory note and that he has not made any part payment and not endorsed on the back of the promissory note and that the promissory note and the alleged endorsement for part payment are created and forged due to the disputes between the plaintiff and the defendant. Basing on the above pleadings, the trial Court settled necessary issues for trial. To substantiate the claim of either parties, the plaintiff himself examined as P.W.1 and got examined the attestor of the pronote as P.W.2 and marked Exs.A.1 to A.4. The defendant himself examined as D.W.1 and marked Exs.B.1 to B.3. Considering the evidence brought on record, the trial Court held that the plaintiff by examining himself as P.W.1 and examining the attestor of suit pronote as P.W.2 discharged the burden and that the burden shifts on the defendant to prove his contention that the signatures and writings on Exs.A.1 and A.2 are not belongs to him, but he has not taken any steps to send the disputed signatures and writings on Exs.A.1 and A.2 to the hand writing expert for comparison with the admitted signatures and writings. Though the defendant pleaded that there were no talking terms in between him and the plaintiff for the last 8 years, he failed to prove the same. Except the oral statement, he has not let in any evidence to substantiate his claim and holding so, decreed the suit of the plaintiff. Aggrieved by the same, the defendant preferred the appeal. Ex.A.3 is the office copy of legal notice got issued by the plaintiff and Ex.B.1 is the original of legal notice got issued by the plaintiff. In the appeal it was contended that in Ex.B.1 the date of execution of promissory note is not mentioned, but in Ex.A.3, the date of promissory note is mentioned. In the absence of any such plea before the trial Court and suggestion put to the plaintiff, the said plea cannot be permitted to be raised across the bar and the lower appellate Court accordingly dismissed the appeal confirming the judgment and decree of the trial Court. Learned counsel for the appellant-defendant contended that the date has not been mentioned in Ex.B.1 original legal notice, but the same has been mentioned in Ex.A.3 office copy, and therefore, it is for the plaintiff to explain the said discrepancy. The lower appellate Court found that except the date in the promissory note, the contents in both Ex.A.3 and B.1 are one and the same. Therefore, in the absence of any suggestion to the plaintiff to explain the said discrepancy with regard to the date in Ex.A.3 and in the absence of any such pleading before the trial Court, the appellant cannot raise the said plea either in the first appeal or in the second appeal. The concurrent findings reached by the Courts below are on appreciation of the evidence in proper perspective. No question of law much less substantial question of law arises for consideration in this second appeal. The Second Appeal fails and the same is accordingly dismissed at the stage of admission. No order as to costs. ________________ A. GOPAL REDDY, J. NOVEMBER 12, 2010 Tsr.