1979 Supreme(MP) 354

IN THE HIGH COURT OF MADHYA PRADESH
J.P. BAJPAI, J.
Ramdeo - Appellant
Vs.
Smt. Narayanbai - Respondents
S.A. No. 157 of 1969 (I)
Decided On : 13-11-1979

Headnote:Civil Procedure Code, 1908 – O. 41, R. 33 – power of Court of appeal – first appellate Court setting aside the judgment on extraneous matter – order bad in law.

        Short Note

       1. This second appeal is directed against the judgment and decree made by the Additional District Judge, Barwani, reversing that of the trial Court. The trial Court had, however, decreed the claim of the plaintiff for Rs. 3,301/ – being the decretal amount, along with interest based on a promissory note executed by the defendant in favour of one Jankibai Jankibai on her turn happened to assign the same to the present plaintiff on 30 – 4 – 1963. The plaintiff claiming himself to be the valid holder of the promissory note instituted the suit giving rise to the present appeal.

       Held : As referred above the present plaintiff had purchased the rights under the pronote from Jankibai. In this context, it was quite natural for him to state in the plaint that he was the valid holder of the pronote after making payment of the amount in question. Naturally the amount under the pronote was not initially paid in his presence by Jankibai to the present defendant. The lower appellate Court had observed that since the plaintiff did not say a single word as to whether the defendant executed the pronote in favaur of Jankibai on receipt of consideration, the claim was not liable to be decreed. In the present case, from the specific endorsement made by the defendant in his own handwriting without any plea of coercion duress or fraud, it appears that there was no scope for doubt about payment of the amount under the pronote. The defendant's conduct appears to be malafide. A heavy burden did lie under these circumstances on the defendant to get rid of the statutory presumption. The lower appellate Court had arbitrarily set aside the finding arrived by the trial Court. The reasons given by the lower appellate Court are apparently extraneous. There is nothing on record to support the view taken by lower appellate Court. The finding of the lower appellate Court is perverse and is therefore liable to be set aside. Appeal allowed.