IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 1093 of 2006()
1. POTTAYILTHODI VEETTIL CHANDRASEKHARAN,
... Petitioner
Vs
1. NARANGAYIL ARAVINDAKSHAN,
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :30/01/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A .NO.1093 OF 2006
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Dated 30th January 2007
J U D G M E N T
Appellant is the defendant and respondent
the plaintiff in O.S.127/02 on the file of Munsiff
court, Parappanangadi. Respondent instituted the suit
for realisation of the amount due under Ext.A1
promissory note dated 26/1/2002 for Rs.38,000/- with
interest. Appellant in the written statement denied
execution of Ext.A1. Learned Munsiff framed necessary
issues. Respondent was examined as PW1 and appellant
as DW1. On the side of respondent Ext.A1 promissory
note was marked and on the side of appellant, Ext.B1
lawyer notice sent by respondent and Ext.B2 reply
notice were marked. Learned Munsiff on the evidence
dismissed the suit holding that respondent did not
succeed in establishing execution of Ext.A1.
Respondent challenged the decree and judgment before
Sub court, Tirur in A.S.110/2003. Learned Sub Judge
after re-appreciation of evidence and elaborate
discussion of the findings of learned Munsiff and
2
evidence reversed the finding and granted a decree
for realisation of the amount. It is challenged in the
second appeal.
2. Learned counsel appearing for appellant was
heard.
3. According to appellant the substantial
question of law which arises for consideration in the
appeal is whether appellate court was correct in
relying on a case which was not set up in the plaint.
According to learned counsel, in the plaint respondent
did not specifically plead that Rs.2,000/- was
borrowed in addition to Rs.38,000/- borrowed under
Ext.A1 and that a cheque was issued for the amount due
under the promissory note as security and therefore
learned Sub Judge should not have interfered with the
decree and judgment passed by learned Munsiff.
4. Learned Sub Jude has elaborately discussed
the evidence and found that appreciation of evidence
by learned Munsiff was not proper. Though it was
contended that in Ext.B1 lawyer notice, respondent did
not contend that cheque was issued as security for the
amount due under promissory note, as rightly found by
learned Sub Judge that notice was sent in compliance
with the mandatory provisions of Section 138 of
3
Negotiable Instruments Act and in such a notice it is
not necessary to give details of antecedent debt.
Learned Sub Judge has given cogent reasons for
accepting the evidence of PW1 and rejecting the
evidence of DW1. Though it was contended that learned
Sub Judge should not have accepted a new case which
was set up in the plaint on going through the judgment
I cannot agree with the submission that a new case
has been accepted. In any event there is no
substantial question of law much less the question of
law. As held by Apex court in K.D.Kadam v. Savitribai
Sopan Gujar (1999 (3) SCC 722) mere appreciation of
evidence or facts is not a substantial question of
law. First appellate court is competent to
reappreciate the facts and evidence. Learned Sub
Judge correctly appreciated the evidence and
reversed the findings of the Munsiff giving cogent and
sufficient reasons. It cannot be interfered in the
appeal.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR,
JUDGE.
4
uj.