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1951 Supreme(Ker) 85
Judges : GANGADHARA MENON,VITHAYATHIL
Unikkali - Appellant
Versus
Vasanthi - Respondent
Case No : S. A. No. 413 of 1123
Decided On : 08/22/1951
Advocates Appeared :
For the Petitioner: T. K. Narayana Pillai, Advocate. For the Respondent: V. G. Sankara Narayana Pillai, Advocate.
The burden of proof lies with the plaintiffs to show that the amount due under a promissory note has not been discharged, and the court has the discretion under 0.41 R.33 C.P.C. to pass any decree or order necessary to prevent the ends of justice from being defeated.
Headnote:
Liability Discharge - Promissory Note - 0.41 R.33 C.P.C.
Fact of the Case:
The case involved a dispute over a promissory note (Ext. A) executed by defendants 1 and 2 in favor of Krishnan Vydian. The 1st defendant contested the suit initially, claiming the amount under Ext. A had been discharged. The trial court gave a decree in favor of the plaintiffs, but the 2nd defendant later petitioned to set aside the ex parte decree against her, claiming the liability under Ext. A had been discharged. The trial court accepted this plea and dismissed the suit, but the District Court set aside the trial court's decree and allowed the suit. The second appeal focused on whether the liability under Ext. A had been discharged.
Finding of the Court:
The court found that the liability under Ext. A had been discharged based on evidence and circumstances, including the settlement of accounts between the 1st defendant and Krishnan Vydian, and a letter (Ext. II) sent by Krishnan Vydian admitting the discharge. The court also exercised its power under 0.41 R.33 C.P.C. to dismiss the suit against the 1st defendant, even though the original decree was set aside only as against the 2nd defendant.
Issues: The main issue was whether the liability under Ext. A had been discharged. Additionally, the court addressed the question of its competence to dismiss the suit against the 1st defendant under 0.41 R.33 C.P.C.
Ratio Decidendi: The court held that the burden of proof lay with the plaintiffs to show that the amount due under Ext. A had not been taken from the amounts sent to Krishnan Vydian. As the plaintiffs failed to discharge this burden, the court accepted the plea of discharge. Additionally, the court exercised its discretion under 0.41 R.33 C.P.C. to dismiss the suit against the 1st defendant.
Final Decision: The court set aside the decree of the lower appellate court, restored the trial court's decree, and dismissed the suit with costs in all the courts.
1. The 2nd defendant in O.S. No. 1647 of the District Court of Quilon is the appellant in this case. The suit is on Ext. A promissory note executed by defendants 1 and 2 on 22.12.1107 for Rs. 100 in favour of the Krishnan Vydian. The suit was filed on 21.12.1113. At first the 1st defendant alone contested the suit. His plea was that the amount under Ext. A had been discharged. This plea was repelled by the court and the plaintiffs were given a decree. In appeal filed by the 1st defendant the decree of the trial court was confirmed. Subsequently the 2nd defendant filed a petition to set aside the exparte decree against her. The decree was set aside as against her and the suit was restored to file. She also contended that the liability under Ext. A had been discharged. This time the trial court accepted the plea and dismissed the suit with costs. In appeal filed by the plaintiffs the District Court set aside the decree of the trial court and allowed the suit.
2. In this second appeal the only question that arises for consideration is whether the liability under Ext. A has been discharged. Before considering the evidence relating to the plea of discharge it is necessary to refer to certain circumstances. Defendants 1 and 2 are Kaniyans and the 1st defendant has taken to astrology as his profession. As knowledge of Sanskrit was necessary for the study of astrology he approached Krishnan Vydian for this purpose and Krishnan Vydian who was well versed in Sanskrit took him as his pupil. After some time the 1st defendant decided to go to Ceylon to try his fortune there. It was for this purpose that he borrowed Rs. 100 from Krishna Vydian, and his mother the 2nd defendant executed Ext. A promissory note in favour of Vydian. It is admitted the 1st defendant earned a decent income in Ceylon and that he sent about Rs. 1000 from there to Krishnan Vydian by money orders. He returned to his native place in Kumbhom 1108. It is contended that he then settled accounts with Krishnan Vydian and after setting off the amount due to Vydian under Ext. A got back the balance amount reserving, however with Vydian Rs. 332 for the purpose of purchasing a property. On 1.9.1108 he took Ext. III sale deed for a property from one Kochunni Ismail. That sale deed was written in the handwriting of P.W. 2 who is the son-in-law of Krishnan Vydian i.e. the husband of the 2nd plaintiff. Krishnan Vydian is an attestor to it. The ready cash consideration for Ext. III is Rs. 343 and it is stated in the document that it was the balance amount left with Krishnan Vydian for payment to the 1st defendant out of the money sent by the 1st defendant to Krishnan Vydian by money orders from Ceylon. Two facts are clear from this statement, namely that the 1st defendant was sending money to Krishnan Vydian from Ceylon and that on 1.9.1108 there was a balance of Rs. 343 due from Krishnan Vydian to the 1st defendant. If this statement is true there is every reason to believe that it is after setting off the amount due to Vydian under Ext. A that Rs. 343 was found due to the 1st defendant from Krishnan Vydian. It is difficult to believe that it was without taking into account the money due to Krishnan Vydian under Ext. A that it was stated in Ext. III that the balance amount due to the 1st defendant from Krishnan Vydian was Rs. 343. There is no reason to believe that this statement is not true in view of the fact that Ext. III was written in the handwriting of Krishnan Vydian's son-in-law and that Krishnan Vydian himself is an attestor to the document. It is also significant that this statement is inserted in the document at the end after all the terms have been mentioned. It would seem that the sentence was inserted at the instance of Krishnan Vydian for the purpose of making it clear that there was no further amount belonging to the 1st defendant in the hands of Krishnan Vydian. In the light of the statement in Ext. III it is difficult to believe that the amount due to
