JUDGMENT
P.S. Narayana, J.
1. This Second Appeal was admitted on 29-6-1993. The value of the Second Appeal for the purpose of Court fee and jurisdiction is Rs.8404/-.
Tummala Tirumalarao, appellant/plaintiff filed O.S.No.532/79 on the file of I Additional Munsif Magistrate, Tenali for recovery of Rs.6400/- against the respondent/defendant, Pemmasani Laxmaiah. The suit was partly decreed by the Court of first instance on 16-1-1986 and aggrieved by the same, the plaintiff carried the matter by way of Appeal A.S.N.7/86 on the file of Principal Subordinate Judge, Tenali and the same was dismissed on 19-12-1992. The plaintiff being aggrieved by the said Judgment and decree had preferred the present Second Appeal.
2. The respective pleadings of the parties are as hereunder.
3. The appellant/plaintiff pleaded as follows:
The defendant borrowed Rs.5000/- from Siddabattuni Veeraswamy and executed the suit pronote dated 22-7-1976 in his favour undertaking to pay the same either to him or his order at 12% interest on demand. The defendant did not pay. The original payee transferred the suit pronote for consideration at Tenali on 15-4-1979 to the plaintiff. the plaintiff got a telegraph notice issued to the defendant on 24-4-1979 but the same was returned unserved. As the defendant failed to pay the suit is laid for recovery of the suit amount.
4. The respondent/defendant pleaded in paras 3 and 4 of the written statement as hereunder :
It was pleaded that the defendant did not borrow any cash of Rs.5000/- under suit pronote dated 22-7-1976 from plaintiff’s transferor. The suit pronote came into being under the following circumstances. The defendant originally borrowed Rs.4000/- from plaintiff’s transferor on 22-7-1970 at the rate of 24% per annum but executed pronote for Rs.5000/- at the rate of 12% per annum at the instance of the original payee. It was the understanding between the parties that at the time of paying, the amount calculated on Rs.4000/- at 24% per annum should be paid. After two years three months the defendant paid an amount of Rs.3600/- in the presence of one P.Sivaiah and S.Nagabhushanam to the son of the original payee. On 22-7-1973 the amount due under pronote dated 22-7-1970 (on Rs.4000/- at 24% per annum) was calculated and after giving credit to the payment of Rs.3600/- with interest for the balance of amount of Rs.2636/- the original payee required the defendant to execute the pronote for Rs.3000/- as cash borrowed at the rate of 12% p.a. and the defendant accordingly executed a pronote. The understanding between the parties was that Rs.2636/- should be paid with 25% interest per annum at the time of payment. On 22-7-1976 the amount payable at 24% per annum on Rs.2636/- was calculated and the amount payable came to Rs.4533-72. But at the instance of the original payee this defendant executed the suit pronote for Rs.5000/- at 12% p.a. on the understanding that at the time of payment the amount calculated on Rs.4533-72 at 24% per annum should be paid. The defendant therefore submits that the interest for the suit pronote should be scaled down from 22-7-1970. The defendant submits that the endorsement of transfer dated 15-4-1979 for the consideration is merely a nominal one. In fact, no consideration is paid thereunder. The said endorsement is not bona fide. It is so made with a view to confer jurisdiction upon the Court of Additional District Munsif, Tenali.
5. Originally, the Court of first instance framed certain Issues and while deciding Issue No.3 only, the question of territorial jurisdiction was considered and a direction was given to return the plaint for presentation to the proper Court and aggrieved by the same, C.M.A.No.26/92 was preferred on the file of Principal Subordinate Judge, Tenali and the appellate Court had allowed the Appeal and directed to entertain the suit and take the same on file to its original number and decide other Issues also by giving opportunity to both the sides. After remand, the Court of first instance had recast the Issues as hereunder :
1. Whether the suit pronote came into existence under the circumstances pleaded in para 3 of the written statement and if so whether the interest is to be scaled down from 22-7-1970 ?
2. Whether the plaintiff is not entitled to the suit costs ?
6. PW-1 to PW-4 and DW-1 to DW-8 were examined and Exs.A-1 to A-5 and Exs.B-1 to B-4 were marked. The Court of first instance on appreciation of the oral and documentary evidence had decreed the suit for the amount that may be found due by the defendant with proportionate costs on the amount of Rs.5000/- taken by him on 22-7-1970 after deducting the payment of Rs.3600/- and by calculating interest as per the provisions of Act 4 of 1938. Aggrieved by the same, the plaintiff preferred A.S.No.7/80 on the file of Principal Subordinate Judge, Tenali and the appellate Court at para 8 had framed the following Points for consideration:
1. Whether the suit pronote is a renewed pronote or not, as held by the lower Court ?
2. To what relief ?
7. The appellate Court also had appreciated the oral and documentary evidence available on record and had confirmed the findings to the effect that Ex.A-1 is a renewal promissory note of an earlier promissory note and consequently dismissed the suit with costs. Aggrieved by the same, the unsuccessful plaintiff in both the Courts below had preferred the present Second Appeal.
8. On the respective contentions advanced by both the learned Counsel Sri Narasimha Chari and Sri V.S.R.Anjaneyulu, representing the appellant and respondent respectively and on perusal of the findings recorded by the Court of first instance and also the appellate Court, the following substantial questions of law arise for consideration in the present Second Appeal :
1. Whether the Second Appeal is maintainable in view of Section 102 of the Code of Civil Procedure, hereinafter in short referred to as “Code” ?
2. Whether the Courts below had appreciated the presumption under Section 118 of the Negotiable Instruments Act 1881 in proper perspective in the facts and circumstances of the case in relation to Ex.A-1 ?
3. Whether Ex.B-1 is materially altered and what would be the resultant effect thereof ?
9. Submissions of Sri Narasimha Chari, Counsel for the appellant :
Sri Narasimha Chari, the learned Counsel representing the appellant in a systematic way had taken this Court through the oral and documentary evidence available on record and had contended that the names of DW-2 to DW-7 had not been referred to in the written statement at all and in the absence of a specific pleading the evidence let in by the respondent/defendant in relation to these witnesses would be of no consequence. The learned Counsel also would maintain that the Second Appeal was admitted even in the year 1993 and hence it cannot be said to be not maintainable at all in the light of the present amended provision i.e., Section 102 of the Code. The Counsel also had taken this Court meticulously through the oral evidence available on record and had contended that though specific stand was taken that Rs.3600/- was paid to the son of PW-2, except the oral evidence of DW-8 in this regard and the interested testimony of DW-1, there is no other evidence and hence on the strength of such evidence recording a finding believing the part payment definitely is unsustainable. The learned Counsel also would maintain that the positive defence taken by the defendant is that Ex.A-1 is the renewal of Ex.B-1 and Ex.B-1 itself is materially altered and hence in the absence of proper explanation, even the defendant cannot reply upon such document for the purpose of establishing his plea that Ex.A-1 is the renewal promissory note of Ex.B-1. The learned Counsel had drawn the attention of this Court to the relevant portions of the evidence of PW-2 and DW-1 in this regard. The Counsel also would maintain that in the absence of proper pleading and non-furnishing of details definitely it cannot be said that the presumption available under Section 118 of the Negotiable Instruments Act 1881 had been rebutted by the defendant to such an extent so as to dislodge the availability of such a presumption being drawn in favour of the appellant/plaintiff. The Counsel also had made elaborate submissions relating to the normal behaviour and the non-production of any receipt in relation to the part payment. The learned Counsel also had placed reliance on certain decisions to substantiate his contentions.
10. Submissions of Sri V.S.R.Anjaneyulu, Counsel representing the respondent/defendant :
Sri V.S.R.Anjaneyulu, the learned Counsel representing the respondent/defendant had initially pointed out that in the light of the clear bar imposed by Section 102 of the Code, the Second Appeal is not maintainable. The learned Counsel also would urge that even otherwise, on facts, concurrent findings had been recorded by both the Courts below and such findings cannot be disturbed in this Second Appeal. The learned Counsel also would maintain that non-passing of consideration under Ex.A-1 and the aspect that Ex.A-1 is just a renewal promissory note of Ex.B-1, are just questions of fact which had been well proved by examining the concerned witnesses and on appreciation of evidence and when both the Courts had recorded findings in relation thereof, such findings do not warrant any disturbance in a Second Appeal. The learned Counsel also would maintain that the part payment made in discharge of the debt had been well established by examining DW-1 and also DW-8, an independent witness who had arranged loan, and inasmuch as the evidence is so clear and convincing, concurrent findings had been recorded by both to the Courts below in this regard and hence such findings also cannot be disturbed on the ground that no attempt was made to examine the son of PW-2 and such payment would not be binding on PW-2 as such. The Counsel also would maintain that except putting a few questions relating to the alleged material alteration in Ex.B-1, there is no other factual foundation and even otherwise every alteration would not amount to material alteration within the meaning of Section 87 of the Negotiable Instruments Act 1881. The Counsel also would maintain that it is not a case where the defendant is trying to enforce Ex.B-1, but however he is placing reliance on Ex.B-1 to the limited extent of showing that Ex.A-1 is a renewal promissory note of Ex.B-1 and nothing more and hence the ground of material alteration now raised would not alter the situation in any way. The Counsel also would maintain that even otherwise this question was neither specifically raised nor canvassed before the Courts below and hence it is impermissible to permit the appellant to raise such a question on the ground that it would constitute a substantial question of law. The learned Counsel also had placed reliance on certain decisions in this regard.
11. Heard both the Counsel at length and perused the findings recorded by the Court of first instance and the appellate Court as well.
Point No.1:
It is not in controversy that the Second Appeal was admitted on 29-6-1993 and the value of the Second Appeal for the purpose of Court fee and jurisdiction is Rs.8404/-. Section 102 of the Code prior to the present Amending Acts read as hereunder :
No second appeal in certain suits:
No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed three thousand rupees.
12. This amendment to the Code enhancing the limit of Rs.1000/- to Rs.3000/- had been introduced by the Amending Act 1976. In SHAH VARDHILAL AMRITLAL Vs. BHURALAL it was held at paras 4, 5 and 6 as hereunder :
“……The suit must be of the nature cognizable by a Court of Small Causes, the value of subject matter whereof does not exceed Rs.3000/- to attract the provision of Section 102. The key words are ‘any suit of the nature cognizable by Court of Small Causes’ which clearly mean that the suit must be one of which the Court of Small Causes could take cognizance; it does not matter that it ultimately came to be tried as a regular suit and not in accordance with the procedure laid down for the disposal of such Small Cause suits. Merely because the suit was tried in the ordinary manner as a regular suit, it will not cease to be a suit of the nature cognizable by the Courts of Small Causes, for what is important is the nature of the suit and not the procedure employed for the disposal thereof…
…..In the present case, the suit from which the Second Appeal arose answers the description mentioned in Section 102. Since Section 102 is made applicable by Section 97(3) of the Amendment Act to pending proceedings including appeals, it follows that the Second Appeal filed against the Judgment and decree of the appellate Court dated 20th October 19786 was not competent……..
…..In order to overcome the argument that rights and causes of action vested prior to effect being given to the amendments introduced by the Amendment Act, 1976, would ordinarily be saved, the Parliament introduced Section 97(3) to make its intention clear that it desired the amendments to take effect retrospectively except those specifically saved by Section 97(2). In this view, Section 6 of the General Clauses Act can have no effect, because a different intention clearly appears on a plain reading of Section 97(3) of the Amendment Act. Therefore, a Second Appeal could not lie…..”
13. In SREERAMULU Vs. K.VENKATESWAR RAO while dealing with Sections 100, 101 and 102 of the Code, at para 3 it was held :
“With such concurrent judgments against him, the defendant has come up on Second Appeal to this Court. A preliminary objection has however been taken by the respondent as to the maintainability of this appeal, but this should not detain us longer. No doubt, the value of this appeal isles than rs.500/- and the appeal before us now is only against the arrears of rent but it is the nature of the suit and not of appeal that is material for purposes of Section 102 C.P.C. It is the character of the suit as it was originally framed and presented to the Court and not which it may assume in the course of or after the trial by virtue of the findings of the Court or in the appeal that may eventually be brought that determines the nature of the suit for purposes of Section 102 C.P.C.
We see that neither the suit nor the grounds taken in appeal fall within the prohibited sphere of Sections 100 to 102 C.P.C. The plea as to non-maintainability is therefore wholly devoid of force.
It is also argued that since the decree for arrears of rent appealed against is based on the same right as that for possession and that since the defendant did not appeal against the decree for possession in the lower appellate Court, but on the contrary delivered possession of the property, thereby admitting the right of the plaintiff, he cannot now bring a second appeal to this Court. This plea is not well founded. The Code is exhaustive of the rights of Second Appeal and unless a particular case falls within the prohibited domain, the right will remain unaffected.
Under Section 100 C.P.C. an appeal shall lie to this Court from every decree passed by the Subrodinate Court in appeal provided the grounds all or any stated in that Section exist and this jurisdiction of this Court knows no limitations save those as have been in terms imposed by the Code or by any law for the time being in force. In the absence of such limitations, it follows that this appeal is quite competent.
It is also clear that execution of a decree in part or in full, whether through Court or otherwise, does not affect the right of appeal nor the fact that only a separable portion of the decree was appealed against in the lower appellate Court can be a bar to an appeal to this Court. Inasmuch as this is an appeal against the decree passed by the lower appellate Court, it is competent under Section 100 C.P.C.”
14. In GADE NARAYAN MURTY Vs. BERHAMPUR MUNICIPALITY
it was held that a suit for recovery of Rs.617-07 as tax due being a suit cognizable by Courts of Small Causes, the Second Appeal cannot lie. In B.P.GAUTAM Vs. R.K. AGARWAL while dealing with Section 102 of the Code and U.P. Civil Laws Amendment Act 1972, a Full Bench of Allahabad High Court at paras 4 and 5 held :
“Section 102 of the Code of Civil Procedure provides –
“No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed one thousand rupees.”
It cannot be gainsaid that the present suit became small causes in nature after the coming into force of the Civil Laws Amendment Act, 1972. It is true that under Section 9 of the Amending Act such suit was triable by the Small Cause Court and was liable to be transferred to it from the regular side, but nonetheless it continued to retain its nature, namely, small causes. In that event Section 102 which applies to suits of the nature of small causes but which are tried on the regular side, is fully applicable. Under it no second appeal lies. The present second appeal is clearly incompetent.”
15. In HADIBANDHU Vs. BHAGABAN it was held :
“Sub-section (3) of Section 97 of Amendment Act expressly takes away the right of appeal. It clearly indicates that the Legislature was conscious of the principle that rights and causes of action vested prior to the coming into force of an amending enactment are saved unless taken away expressly or by necessary implication. To meet this situation, sub-section (3) of Section 97 has been enacted expressly taking away the vested right. The contention that Section 6 of the General Clauses Act cannot be pressed into service. Therefore, the provisions of Section 102 C.P.C. as amended in 1976, are retrospective. The Second Appeal filed after the commencement of the Amending Act of 1976 would not be maintainable when the amount involved in the appeal is below Rs.3,000/-.”
16. Section 102 of the Code as substituted by Section 11 of the Amending Act, Act 46 of 1999 and again substituted by the Amending Act 22 of 2002 in the present form reads as hereunder :
No Second Appeal in certain cases :
No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.
17. There cannot be any doubt that in the light of the subject matter of the present litigation i.e., the amount involved, the bar imposed under Section 102 of the Code in normal circumstances would become operative. Section 11 of the Amending Act 1999 of the Code, Act 46 of 1999, dealing with Substitution of new Section for Section 102 reads as hereunder :
“For Section 102 of the principal Act, the following Section shall be substituted, namely:-
“102. No second appeal in certain cases:- No second appeal shall lie from any decree when the amount or value of the subject matter of the original suit does not exceed twenty-five thousand rupees.”
18. Section 5 of the Amending Act 2002 of the Code, Act 22 of 2002, dealing with Substitution of new Section for Section 102 reads as hereunder :
“For Section 102 of the principal Act [as substituted by Section 11 of the Code of Civil Procedure (Amendment) Act, 1999], the following Section shall be substituted, namely:-
“102. No second appeal in certain cases:- No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.”
19. Section 16 of the said Act dealing with Repeal and Savings reads as hereunder :
(1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or High Court before the commencement of this Act shall, except in so far as such amendment or provisions are consistent with the principal Act as amended by this Act, stand repealed.
(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897), –
(a) the provisions of Section 102 of principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not been come into force;
(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and Section 7 of this Act;
(c) the provisions of Rule 1 of Order XX of the First Schedule as amended by Section 13 of this Act shall not apply to a case where the hearing of the case had concluded before the commencement of Section 13 of this Act.
20. It is pertinent to note that Section 16(2)(a) of the Amending Act, Act 22 of 2002, referred supra, specifically says that notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1897), the provisions of Section 102 of principal Act as substituted by Section 5 of this Act, shall not apply to or affect any appeal which had been admitted before the commencement of Section 5; and every such appeal shall be disposed of as if Section 5 had not been come into force. In the light of this provision, inasmuch as the present Second Appeal was admitted in the year 1993, the same is definitely saved and the bar imposed in the present Amending provision of Section 102 of the Code would not be operative as far as the present case is concerned. Hence, I am of the considered opinion that the Second Appeal is maintainable for the reasons referred to supra. Consequently, the Point is answered in favour of the appellant/plaintiff.
Point No.2:
Section 118 of the Negotiable Instruments Act 1881, Act 26 of 1881, deals with Presumptions as to negotiable instruments for consideration and the relevant portion reads :
Presumptions as to negotiable instruments of consideration :
Until the contrary is proved, the following presumptions shall be made :-
a. of consideration – that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
……………
……………
21. It is needless to say that this presumption is rebuttable presumption. In KUNDAN LAL Vs. CUSTODIAN, EVACUEE PROPERTY, BOMBAY AIR 1961 S.C. 1316 the Apex Court held :
“Section 118 lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and thereunder a Court shall presume inter alia that the negotiable instrument or the endorsement was made or endorsed for consideration. In effect it throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. The phrase “burden of proof” has two meanings – One, the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissible made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. A plaintiff who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration should produce the said account books. If such a relevant evidence is withheld by the plaintiff, Section 114, Evidence Act enables the Court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a Court, can under certain circumstances rebut the presumption of law raised under Section 118 of the Negotiable Instruments Act.”
22. As can be seen from the findings recorded by both the Courts below, it is not as though this aspect of availability of the presumption under Section 118 of the Negotiable Instruments Act 1881 had been lost sight of and the same had been discussed and proper findings had been recorded in this regard. The defendant in the case had admitted the execution of the suit promissory note Ex.A-1 dated 22-7-1976 in favour of PW-2. Ex.A-2 is the endorsement of transfer of Ex.A-1 in favour of PW-1. Ex.A-3 is the postal acknowledgement. Ex.A-4 is a copy of settlement. Ex.A-5 is the postal receipt. Ex.B-1 is dated 22-7-1973 which is the promissory note executed by DW-1 in favour of PW-2. Exs.B-2 and B-3 are calculations on Ex.B-1 and Ex.B-4 is the hand-writing of PW-2 taken in open Court.
23. The specific stand taken by the respondent/defendant is that the promissory note Ex.A-1 came into existence in the circumstances pleaded by him. There cannot be any doubt or controversy that inasmuch as specific plea had been taken by the respondent/defendant to the effect that Ex.A-1 is only renewal of promissory note and not supported by consideration, the burden is on him. To prove his case, the respondent/defendant had examined himself as DW-1 and had filed the earlier promissory note marked as Ex.B-1 and had examined the scribe and the attestors of the earlier promissory note Ex.B-1 as DW-2 to DW-4 and the defendant also examined the attestors and the scribe of the suit promissory note Ex.A-1 as DW-5 to DW-7 respectively. DW-8 is the person in whose presence the payment of Rs.3600/- was made to the son of PW-2. No doubt, elaborate submissions were made pointing out certain trivial discrepancies in the oral evidence adduced by the defendant.
24. In the light of the elaborate submissions made by both the Counsel, with all care and caution I had gone through the findings recorded by both to the Courts below in this regard. The evidence adduced on behalf of the defendant is so clear and convincing that the presumption available under Section 118 of the Negotiable Instruments Act 1881 in favour of the appellant/plaintiff had been well rebutted. PW-1 is the plaintiff in the suit who had obtained the promissory note in question by virtue of a transfer endorsement Ex.A-2. PW-2 had transferred Ex.A-1 in favour of PW-1. PW-3 is the scribe of the endorsement of transfer on Ex.A-2. PW-4 is the scribe of the pronote in 1968 executed in favour of PW-2 by one Lakshmaiah. The evidence of PW-4 is as vague as vagueness can be. Except this evidence, no other evidence is forthcoming on behalf of the appellant/plaintiff. Hence, in the light of the over-whelming evidence placed in proof of the origin of the loan transaction and the renewal thereof, clear findings had been recorded by both to the Courts below and hence the Courts below had recorded findings in accordance with law inasmuch as necessary evidence had been let in to rebut the presumption available in favour of the appellant/plaintiff relating to the passing of consideration under Ex.A-1. Hence, I do not see any illegality or perversity in the finding recorded by both the Courts below in this regard and hence the said findings are hereby confirmed. Consequently, this Point is answered in favour of the respondent/defendant.
Point No.3 :-
Certain submissions were made relating to material alteration of Ex.B-1. Section 87 of the Negotiable Instruments Act 1881 dealing with Effect of material alteration reads as hereunder :
“Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties.”
25. In JAYANTILAL GOEL Vs. ZUBEDA KHANUM it was held that it is well settled that a person who is in custody of a document subsequent to its execution, should there be any alteration has to discharge the burden of establishing that it is not altered. Reliance also was placed on A.SUBBA REDDY Vs. NEELAPA REDDI in this regard. In P.L.S. CHETTIAR Vs. P.L.U. CHETTIAR it was held that if the promissory note is materially altered without consent, such document is void under Section 87 of the Negotiable Instruments Act, 1881, and it was also further held that the saving clause “unless it is made for carrying out common intention……..” is not attracted without pleading and proof. It is pertinent to note that in the present case, the appellant/plaintiff had not placed reliance on Ex.B-1, but it is the respondent/defendant who had placed reliance on Ex.B-1 just to show that Ex.A-1 is only a renewal promissory note. The relevant witnesses were examined to prove this aspect. Evidently, because Ex.B-1 was pressed into service at a latter point of time, the appellant/plaintiff had not taken any plea in this regard. It is pertinent to note that if the appellant/plaintiff was particular of agitating this question seriously, he could have as well amended the pleading in this regard. It is no doubt true that PW-2 in cross-examination had stated :
“…. It is not true that I obtained pronote in 1973 in renewal of a debt of 1970 for a round figure of Rs.3000/-. Ex.B-2 is not in my hand. Ex.B-4 is my specimen writing written at the request of Counsel for defendant. It is not true that Ex.B-2 and B-4 are similar. ……”
26. In the cross-examination of DW-1, DW-1 had stated :
“….Ex.B-1 recites that I borrowed Rs.3000/-. There is slight difference of ink in the writing of the words of Ex.B-1 and the words of Nisani. So also in Ex.B-2. I cannot say who wrote the Nisani in Ex.B-1. PW-2 has got a pen….”.
27. Except this evidence, the aspect of material alteration had not been seriously canvassed by both the parties. From the nature of the suggestions and the evidence available on record, it is definitely doubtful whether this alteration would amount to material alteration within the meaning of Section 87 of the Negotiable Instruments Act 1881. Even otherwise, it is not going to alter the situation in any way especially in the light of the over-whelming evidence available on record to show that Ex.A-1 is only a renewal transaction and for this limited extent, reliance placed by both the Courts below on Ex.B-1 cannot be found fault in any way. Hence, in the light of the peculiar facts and circumstances, I am of the considered opinion that on this ground the appellant/plaintiff can succeed in the present Second Appeal. Accordingly, this Point also is answered in negative.
28. In the light of the foregoing discussion on the questions urged by both the Counsel representing the parties, I am of the considered opinion that the Second Appeal is devoid of merit and accordingly the same shall stand dismissed, with costs.