A court cannot dismiss a plaintiff's case based on disputed facts during the interlocutory stage without proper examination of evidence.

This Original Petition is filed by the petitioner/plaintiff for setting aside the dismissal of the application filed by the petitioner under Order 38 Rule 5 of C.P.C by the Sub Judge Muvattupuzha in IA No. 2/2024 dated 19.03.2024.

2. Heard the arguments of the learned counsel for the pe-

titioner and learned counsel for the respondent.

3. The case of the petitioner is that the petitioner had filed a suit in O.S. No. 21/2024 against the defendant for realisa- tion of Rs.36,15,452/- with interest. The defendant had borrowed an amount of Rs. 30,00,000/- from the plaintiff on 10.01.2023. The defendant is said to have executed a promissory note in favour of the plaintiff for having borrowed a loan of Rs.30,00,000/-. Due to non-payment of the loan amount, the plaintiff filed the suit and also filed an interlocutory application, I.A. No. 2/2024, under Order XXXVIII Rule 5 of the CPC for at- tachment of Item Nos. 1 and 2 of the properties belonging to the respondent and his mother. However, the said application came to be dismissed, and accordingly, the petitioner has approached this Court.

4. The learned counsel for the petitioner contended that the order of the trial Court is erroneous and illegal, wherein the document produced by the petitioner, namely the promissory note marked as Exhibit P2 (A1), was disputed by the trial Court. The trial Court believed only the version of the respondent–defendant that he had borrowed Rs.5,00,000/- by pledging the car, which was later repaid, and that the signatures of the witnesses were not found on promissory note. Therefore, the trial Court dis- missed the application, which is not correct. Hence, the petitioner prayed for setting aside the order under challenge.

5. Learned counsel for the respondent supported the or-

der of the trial Court and contended that the very case of the plaintiff is doubtful, as the document relied upon is not believ- able. The signatures of the witnesses are not found on the promis- sory note. In a criminal case, the two witnesses named in the promissory note have stated that they are not aware of the trans- action. Such being the case, there is no prima facie strong case in favour of the plaintiff for trying the suit. Therefore, attachment of the property of the defendant is not required.

6. He further contended that the very plaintiff had filed another suit against the defendant in O.S. No. 388/2023 for recovery of Rs.7,50,000/-, which is said to have been paid on 05.07.2023, and now claims to have paid Rs.30,00,000/- to the defendant. The question of paying another loan does not arises. Hence, the version of the plaintiff cannot be believed. Such being the case, the question of attaching the property does not arises. There is no prima facie case, in favour of the plaintiff for attaching the property and in support of his case he has relied upon the judgment of the Division bench of this Court reported in 2019 (1) KHC 677 case of Krishna Prasad v. Vrindaraj and Others . In another case, the Co-ordinate bench of this Court, in the case of Kunhimoideen @ Bava and Another v. Thalekkara Sulaikha and Others reported in 2020 (2) KHC 177 . In another case reported in 2016 (2) KHC 793 in the case of Smitha V. P.C Varghese and Another . As replied by the learned counsel for the petitioner, it was contended that the order of the trial Court, relying upon Section 269 of the Income Tax Act and disbelieving the payment of Rs.30,00,000/- in cash, is not correct. In support of his contention, reliance was placed on the judgment of the Hon’ble Supreme Court in Criminal Appeal No. 1755 of 2010