JUDGMENT
S.B. Sinha, C.J.
1. This civil revision petition arises out of an order dated 27.2.1998 passed by the Additional Senior Civil Judge, Ongole in Small Cause Suit No. 4 of 1995 whereby and whereunder the suit filed by the plaintiff-opposite party is decreed.
2. The fact of the matter is as follows. The plaintiff is a chit fund company. The first defendant (first petitioner herein) joined the chit company as one of the subscribers for the Chit OTS-3 for Rs. 30,000/-. Subsequently, the first defendant participated in the auction and became the prized bidder and an amount of Rs. 15,350/- was paid to him by the chit fund company vide voucher dated 14.7.1992. As on thedate of auction, the first defendant was due a sum of Rs. 28,000/-. While receiving the bid amount, the first defendant executed a promissory note for Rs. 28,000/- in favour of the plaintiff for which defendants 2 to 4 stood as guarantors. After receiving the bid amount, the first defendant paid 24 monthly instalments and thereafter committed default. Thus, the first defendant is due a sum of Rs. 6,000/- to the plaintiff together with interest and costs. On the other hand, the first defendant made a counter claim stating that he vas a member of the chit of Rs. 1,00,000/- with Chit No. OKL 1 at a monthly subscription of Rs. 2,000/-, that he paid five instalments amounting to Rs. 10,000/-, that he could not prosecute the chit and discontinued and that he gave a notice to the plaintiff to return the said amount of Rs. 10,000/-.
3. Having regard to the pleadings of the parties, the learned Court below formulated three questions for its consideration. On point No. 1, it was held that the defendant No. 1 has admitted the suit transaction and he having not been able to prove the counter claim, the suit, of the plaintiff is entitled to be decreed.
4. The learned Counsel appearing on behalf of the petitioners would submit that having regard to the fact that the plaintiff did not examine himself, the learned trial Judge must be held to have erred in law in paying the impugned order. In support of the aforementioned contention, strong reliance has been placed on a decision of the Apex Court in Vidhyadhar v. Mankikrao, . In the instant case, the claim of the plaintiff had been admitted. The suit, therefore, was to be decreed in terms of Order 12 Rule 6 of the Code of Civil Procedure.
5. The defendant No. 1 pleaded that the plaintiff was due to him a sum of Rs. 10,000/- in respect of the Chit No. OKL 1 and the said amount has to be given set off and thus the balance amount of Rs. 3,205/- was due to be paid to him. For the aforementioned amount, a counter claim has been filed. It was in the aforementioned situation and having regard to the provisions contained in Order 18 Rule 1, CPC the first defendant was to begin hearing of the suit. He examined two witnesses to prove the liability of the plaintiff to the extent of Rs. 10,000/- to him. The learned Court below upon trial of the suit and having regard to the materials on record, merely came to the finding that the first defendant has failed to prove his claim and that even he had not been able to prove the notice issued by him to the plaintiff. In evidence he claimed ignorance in relation to the whereabouts of the said notice. The notices exchanged between the first defendant and the plaintiff had also not been produced in the Court. However, the reply notice given by the plaintiff is to the effect that the money was credited to Nalluri Ajay Choudary but even the said Ajay Choudary had not been examined.
6. It is not in dispute that so far as the counter claim is concerned the same is to be treated as not proved having regard to the fact that the defendant No. 1 admitted the claim of the plaintiff and that the burden of proof was upon him to prove the counter claim.
7. The learned trial Judge also came to the conclusion that having regard to the provisions of the Limitation Act, the claim of the defendant No. 1 was barred by limitation. Even in that view of the matter, the purported counter claim on the basis whereof the defence of the defendant No. 1 is placed could not have been entertained.
8. For the reasons aforementioned, this Court is of the opinion that no case is made out for interference with the impugned order.
9. The decision of the Apex Court in Vidhyadhar is not applicable to the facts of the present case. Therein, a suit was filed for redemption of mortgage by conditional sale or in the alternative a decree for specific performance of contract which was decreed by the Trial Court on 29.4.1975. In the aforementioned situation, it was held that it was necessary for the plaintiff to examine himself as a witness so as to enable the defendant subjecting to cross-examination. Such a question did not arise here. Having regard to the provisions of Section 58 of the Evidence Act, the plaintiff was not required to prove the admitted transaction.
For the reasons aforementioned, there is no merit in the C.R.P., which is accordingly dismissed. No order as to costs.