The High Court · 2025

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE G.RADHA RANI SECON D APPEAL NO: 1039 OF 2005 Appeal filed under Section 100 of CPC against the judgment and decree dated 23-01-2004 in AS No.35 of 2002 on the file of the Court of the Vl Additional District and sessions Judge (Fast Track court), Nizamabad preferred against the judgment and decree daled 19-07 -2002 in OS No.24 of 2001 on the file of the Court of the Principal Junior Civil Judge, Nizmabad. Between: Bainsa Haridas, S/o.B.Hanmandlu, Working in Poddu News Paper Kotagally, Nizamabad, A.P. ...APPELLANT/RESPONDENT/PLAINTIFF AND

1. A. Baswaraj S/o. Madhava Rao, aged 40 years, Occ: Auto Driver 2. Smt. A. Kalavathi Wo. A. Baswaral, Aged 37 years, Occ: Tailoring Both R/o. Cio. Kalavathi Tailoring Centre, Jandugalli, Nizamabad, A.P. ...RESPONDENTS/APPELLANTS/DEFENDANTS l.A. NO: 1 OF 2006 (SAMP. NO: 2032 0F 2006) Petition under section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased take up the sA No.1039/2005 for hearing immediately alternatively fix early date of hearing- Counsel forthe Appellant: Sri K. M. Mahender Reddy Counsel for the Respondents: Ms. B.Rajeswari, Advocate for Sri S. Satyam Reddy The Court delivered the following JUDGMENT: '[IIE H()NOURABLI! Dr. JUSTICE G.I{ADIIA RANI SLCOND APPEAL No.I039 of 2005 .IT]DGMF]N'I': This Second Appeal is filed by the appellant-respondent-plaintiff aggrieved by the.ludgment and decree dated 23.01 .2004 passed in A.S. No.35 of 2002 bv the VI Additional District and Sessions Judge, FTC, Nizamabad, revcrsing thejudgment and decree dated 19.07.2002 passed in O.S. No.24 o1'200 I by the Principal Junior Civil Judge, Nizamabad.

2. Thc parties are hereinafter referred as arrayed before the trial court as 'plaintitt and 'defendants'.

3. thc plaintiff filed the suit for recovery of an amount of Rs.47,850/- with future interest at 2o/o per month against the defendants. As per the averments in the plaint, the plaintiff was a resident of Kotagalli, Nizamabad. l'he defendant Nos.l and 2 were husband and wife and they were residents ol Jandagalli, Nizamabad and both of thern were known to the plaintiff. ln the month ofJanuary 1998, the defendant No.l approached the plaintiff and requested for a hand loan of Rs.20,000i- for his domestic 2 Dr.GfrR,J SA No.l039 of200S needs and promised to repay the same on demand along with interest at 24"/o per annum. The praintiff gave the defendant No. r loan of Rs.20,000i- on 18.01'1998 at Nizamabad and the defendant No.1 received the same in the presence of witnesses. It was an oral transaction. Subsequently, on

03.02.1998, the defendant No. r again approached the plaintiff and obtained from him a further loan amount of Rs.r0,000/- in the presence of witnesses fbr his domestic necessities and offered to repay it also along with interest at 24o/o per annum. The said transaction was also oral one. Thus, the defendant No.1 obtained a roan of Rs.30,000/- from the plaintiff at Nizamabad agreeing to repay the same on demand along with interest at 2o/o per month.

3.1. Sr,rlsequently, the defendant No.1 failed to repay any amount to the plaintiff inspite of repeated demands made by him and also failed to pay any interest on the said amount. when the ptaintiff insisted for repalment of the entire loan amount along with the accumulated interest, the defendant No.2 (wife of defendant No.1) promised that she would take the responsibility for the repayment of the entire loan amount of her 3 DLGRR,.I SA No.t039 of200s husband along with interest by 30' 1 1'2000 and executed a written agreement dated 29.05.2000 in the presence of witnesses at Nizamabad' As per the said undertaking dated 29'05'2000' the defendant No'2 repaid an amount of Rs.3,000/- to the plaintiff on 31.05.2000 leaving the principal amount of Rs.27,000 l- and accumulated interest from 18'01'1998/ 03.02.1998 onwards. As such, the plaintiff filed the suit for the principal amount of Rs.27,000/- and interest of Rs'20'850/-'

4. The defendant Nos.l and 2 filed written statement denying taking of loan by del'endant No.l on 18'01'1998 or on 03'02'1998 on oral transaction and contended that the defendant No'2 was not concerned with the alleged money transaction of defendant No'l with the plaintiff' They goondas' rowdies and further submitted that the plqintiff camq q!o4g -1vith got executed a bond in favour of plaintiff on29'05'2000 for Rs'30'000/- by showing muscle power and took Rs'3,000/- from the defendant No'2 by threatening her by showing knives in an illegal method' The matter was referred to the police immediately' No General Power of Attomey was given by the defendant No'l in favour of defendant No'2 to give an 1 Dt.CRR,J SA No. t039 of200s undertaking to pay the money payable by defendant No.l. 1'he plaintiff was a professional money lender and would charge interest at 5%o per month and was harassing the people with the help of goondas. The defendants raised a counter claim for Rs.3,000/- from the plaintiff under the suit bond and prayed to dismiss the suit with costs.

5. Basing on the said pleadings, the learned Principal Junior Civil J udge, N izan.rabad, liamed the issues as follows: I 2 Whether the plaintiff is entitled for recovery of suit claim as prayed for? Whether the claim of defendant No.2 for Rs.3,000/- as a counter-claim as alleged in the written statement is proper and tenable?

3. To what reliefl

6. The plaintiff exalnined himself as PW. I and got marked the agreement dated 29.05.2000 as Ex.Al. He got examined the attestor of the said agreement as PW.2, the scribe of Ex.Al as PW.3 and the alleged witness, who was present at the time of giving hand loan to defendant No.1 5 DT.GRR,J SA No.l039 of2005 on 18.01.1998 and 03.02.1998, as PW.4. The defendant No.2 examined herself as DW. l. No documents were marked on behalf of the defendants. 7 After considering the oral and documentary evidence on record, the leamed Principal Junior Civil Judge, Nizamabad decreed the suit with costs for Ils.47,li50l with future interest at 60/o per annum on the principal amount of Rs.27,000/- liom the date of suit till the date ol realization and that both the def'endants were jointly and severally liable to discharge the suit debt.

8. Aggricved by the saidjudgment and decree passed by the learned Principal Junior C'ivil Judge, Nizamabad, the defendants prel.ered an appeal. Tl.re said appeal was heard by the leamed VI Additional District and Sessions Judge (FTC), Nizamabad and videjudgment and decree dated

23.01.2004 set aside the judgment of the trial court and allowed the appeal with costs. Aggrieved by the said judgment and decree passed by the leamed VI Aclditional District and Sessions Judge (FTC), Nizamabad, the plaintiff prefcrred this second appeal raising the follorving substantial questions of larv in Ground No.4 of Grounds of Appeal: 6 Dr.GRR,.l SA No.l039 of200i (a) Whether the admission i.e. execution of Ex.Al (Agreement) by DWI (Defendant No.2) and repa).rment endorsement ofRs.3,000/- is not sufficient to decree the suit, in the absence ofpleadings, defences about lodging of police complaint and it is also supported by scribe PW.3 and other witnesses PW.2, 4? (b) Whether the findings of trial court supported by evidence of PW.1 to 4, Ex.Al can be disbelieved in the absence of contra evidence? (c) Whether the evidence of PW.3 (scribe), PW.4 (Attestor) neighbours of defendants, is not sufficient to decree the suit, as their evidence is consistent and PW.3 scribe the Ex.Al under instruction of 2nd defendant (AIR l94l Mad 417,1912 (1) An.W.R.7l (d) In the absence of 1" defendant's evidencc of counter claim, adverse inference under Section I l4(g) of Evidence Act is not sufficient (AIR 1999 SC 1441X (e) Whether the defendants discharged their burden ol proof of not borrowing Rs.30,000/- whereas DW.1, clearly admitted the transaction and no independent evidence produced? (0 Whether hand loan advanced casually or for neighbours can be termed as money lending in the absence of contra evidence, pleadings, etc. (AIR 1963 AP 442, 1968 (l) ALT 341, 1962 An.W.R. 135)? (g) Whether the transaction Ex.Al binds l't defendant or not? Because it is settled law that 'Agent' need not be appointed in writing as DWI acknowledged the debt 7 Dr-GR R,J SA No.l039 of2005 within 3 years and acted upon and also repaid Rs.3,000/- which is sufficient or not?

9. This Court admitted the Second Appeal on 09.09.2005 on the grounds raised in Ground No.4 of the Memorandum of Appeal.

10. Heard Sri K. M. Mahender Reddy, learned counsel for the appellant and Ms. B. Rajeshwari, leamed counsel representing Sri S Satyam Reddy, learned counsel for the respondents on record. I l. The learned counsel lor the appellant contended that the first appellate court misread the evidence and not appreciated the evidence in a proper mannel and camc to wrong conclusions which were not warranted Both the parties.,vere known to each other. On 18.01.1998 and on

03.02.1998, the del'endant No. I approached the plaintiff and obtained hand loan of Rs.20,000/- and Rs.10,000/- respectively, for his domestic needs with a promise to repay, but, failed to re-pay the same. The defendant No.2 undertook to repav Rs.30,000/- with interest by 30.11.2000 and executed agreement dated 29.05.2000, but paid only Rs.3,0001 on 31.05.2000. Hence, the suil rvas filed for Rs.47,850/- (Principal amount of Rs.27,000/- DT.GRR,J SA No.t039 of200s + interest of Rs.20,850/-). The defendants denied the payments made on

18.01.1998 or 03.02.1998 and contended that the plaintiff forcibly got executed the document on 29.05.2000 for Rs.30,000/- and referred the matter to police and that the defendant No.2 was not authorized nor that she was a GPA holder, but admitted payment of Rs.3,000/-. The trial court on considering the oral and documentary evidence on record, came to a proper conclusion and vide reasoned judgment, decreed the suit. The defendant No.l failed to enter into the witness box as such, an adverse inference had to be taken against him and relied upon the judgment of the Hon'ble Apex Court in Vidhyadhar v. Manikrao and anotherr. He further contended that the plaintiff could not be considered as a money lender for advancing the money casually for neighbours and relied upon the judgment of the erstwhile High Court of Andhra Pradesh in K. Sudersanam v. S. Venkat Rao2, wherein it was held that: "In order to fall within the definition of money lcnder it is not enough merely to show that a man had, on several occasions, lent money at remunerative rates of interest. There must be a certain degree of system and continuity about the transactions. The definition of ' AIn t99g sc tqqt ' e.IR t963 aP 442 () Dr-eRRJ SA No.l0J9 of 2005 'money lender' in the Act does not includc those who advanced money casually." I 1. I . He also relied upon the judgment of the High ()ourt of Andhra Pradesh in Komaravelli Vara Laxmi v. Syed Kasim Hussain3, wherein also it was held that isolated transactions of money lending would not attract the definition of 'money lender' within the meaning of the Act.

11.2. Lcarned Counsel for the appellant further contended that defendant No.2-DW-l admitted the transaction and also repaid an amodnt of Rs.3,000/-, as such, the defendants could not denv borrowing the amount. She rvould come within the term 'Agent' and the transaction under Ex.Al binds the defendant No.1. He further contended that Ex.A1 had to be interpreted by considering its contents as a whole without considering the surrounding circumstances and relied upon the judgments of the High Courl of Andhra Pradesh in Dur.vuru Jayarami Reddy v. Revathi Mica Companya and of the judgment of the Full Bench of the High Court of Madras in Sivagurunatha Pillai v. Padmavathi Ammals. r 1962 SCC Online AP 86 4 1970 sCC onLine -,\P 256 t etR l9+l Madras 4l? t0 DT.CRR,J SA n'o.t039 of2005 He further contended that when the defendant No.2 admitted her signatures on Ex.Pl, it could be said to be proved and relied upon the judgments of the Hon'ble Apex Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal and another 6 and Rajendra Lalitkumar Agrawal v. Ratna Ashok Muranjan 7 on the contention that interpretation of terms and conditions of document would constitute a substantial question of law.

12. The leamed counsel for the respondents-defendants supported the judgment of the lower appellate court and contended that the lower appellate court had discussed the evidence of the witnesses and considered the documents in detail and came to the conclusion that the plaintiff forcibly obtained Ex.Al from defendant No.2 and that the plaintiff was a professional money lender rvithout licence and dismissed the suit and allowed the appeal with costs. The questions raised in the grounds of appeal were all questions on facts, but not on law and prayed to dismiss the second appeal. u zoo+ (r ) aro o+ (sc) '(zotg) I scc lu s l1 Dt.GRR,l SA No.l0i9 of2005

13. The right of appeal is a statutory right and the second appeal lies only when the case involves a substantial question of lau, as per Section 100 of CPC. The term substantial question of law had not been defined under CPC. The general rule is that High Court shall only entertain the matters involving a substantial question of taw. The question of fact wrongly determined cannot be criteria for filing the second appeal. Section 103 speaks of two situations when a question of lact can be dealt with by a Couft in a second appeal. Firstly where, neither the lower court nor the court of first instance had decided the necessary question. Secondly, where, the essential issue has been mistakenly settled by the courts below. Ordinarily, the second appeal would not lie on a finding of fact. But, if there is a legal inference that needs to be drawn from the finding of fact. the second appeal would lie on the basis that the decision was wrong. The mere fact that a question of fact has been wrongly determined should not be criteria for entertaining a second appeal. 12 DT.GRR.J SA No.t039 of2005

14. The Hon'ble Apex Court in Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar & Ors.8, held that: "After all, a second appeal is not a third trial on facts, for re-appreciation of cvidence to be justified and for the same to be required as well as being dernonstrably at a different threshold from merely a possible different view, pervcrsity or the other conditions of no evidence or inadmissible evidence."

15. In the light of the principles enunciated above, when the substantial questions raised in the grounds of appeal are considered, all these are questions on facts, but not questions of law or particularly any substantial questions of law which were not decided earlier' The first appellate court has power to judge the correctness of findings of facts as well as of law recorded by the trial court and it has rightly considered the

16. The first appellate court observed that: "Admittedly, the plaintiff and defendants were not relatives, but only neighbours. The delbndant No.1 was working in a cloth shop and defendant No.2, wife of defendant No.l, was eaming as a tailor' The amount of Rs.30,0001 was a huge amount for both the plaintiff and 8 2023 Livelnw sC 821 l3 DTCRR,J SA No. t039 of200s the defendants. The presence of PWs.3 and 4 at both the times of lending hand loans was not stated by the plaintiff in the plaint. Admittedly, PW.3 was a native of Bodhan and he was a govemment employee and PW.4 was a resident of the locality of PW.1 . The prcsence of PWs.3 and 4 on both the dates ofhand loans was highly doubtful. In the said circumstances, there was a strong suspicion agarnst the payment of hand loans to defendant No.l by the plaintiff without obtaining any document_ -l'he plaintitf did not state any reason as to why he did not obtain similar document as of Ex.AI from the defendant No. I on the dates of giving hand loans or subsequently. Adrnittedly, defendant No.2 was a house-wifc and defcndants were poor people. So, there was every chance of police not caring the oral report of defcndant No.2. The plaintiff, PW.2 (the attestor of Ex.Al) and PW.3 (rhe scribe of Ex.Al), are not able to say as to why there rvere throe signatures of defendant No.2 on Ex.Al in the plaint. The plaintiff did not state that both defendarrt Nos.l and 2 borrorved the hand loans, but PWs.3 and 4 in their evidence deposed that both the defendants borrowed Rs.20,000/- and Rs.10,000/- on 18.01.1998 and 03.02.1998. PW.3 stated that defendant Nos.l and 2 agreed to repay the debt by 30.1 1.2000. Even if we take the entire case of the plaintiff as tnre and correct. he would have gone to the house of defendants to obtain Ex.Al. But, the case of the plaintiff was that defendant No.2 herselt along with two persons, carne to his house l4 DICRR,J SA n'o.1039 of2005 and executed Ex.A l, which could not be believed. PWs.2 and 3 were close friends of PW. I . PW.4 even though denied that he was close friend of plaintiff, from his evidence, we can conclude that he was yesman of plaintiff. By believing the evidence PWs.2 to 4, the leamed Junior Civit Judge decreed the suit even though there were strong suspicious circumstances against Ex.Al."

18. Thus, the above observations made by the first appellate court would disclose that the first appellate court considered the oral and documentary evidence on record and came to the above conclusion. The first appellate court is a final court on the facts and the questions raised in the grounds of appeal 'whether the admission of execution of Ex.Al (agreement) by DW.l (defendant No.2) and repayment endorsement of Rs.3,000/= is sufficient to decree the suit', 'whether the evidence of PWs.l to 4, can be disbelieved in the absence ofcontra evidence' are all questions of facts and the same were answered by the lower appellate court as to why the evidence of PWs.l to 4 cannot be believed. The lower appellate court on considering the evidence on record, came to the conclusion that the plaintiff forcibly obtained Ex.A1 from defendant No.2, which observation l5 Dr.CRR,.l SA No.l039 of2005 cannot be disturbed in the second appeal as there is no substantial question of law arising on these aspects. The burden of proof lies on the plaintiffto prove that the defendant No.l obtained loan from him and Ex.Al was a genuine document executed by DW.2 on behalf of defendant No.1, without any coercion or force. The plaintiff failed to prove the same. The first appellate court considered the circumstances and discussed them, which were sufficient fbr dismissal of the suit. The burden of proof would not lie upon the defendant to adduce any independent evidence by them. There was no necessity for the defendant No.l to enter into the witness box or any adverse inference could be drawn against him for not entering into the witness box as defendant No.2 was examined as DW. I on behalf of both the defendants. As no court fee was paid on the counter claim, the counter claim was rightly not considered by the trial court as well as the lower appellate court.

19. The lorver appellate court also made a detailed discussion on the aspect whether the plaintiff was a professional money lender and came to the conclusion that the plaintiff was a professional money lender and a: I6 DLCRR,J S,a No.I0J9 of200t without licence, he was lending money to the people with high rate of interest. This Court does not find any substantial question of law arising on this aspect also.

20. The wife cannot be considered as an agent of the husband without explicit instructions from him and the execution of Ex.Al by defendant No.2, the wife on behall of defendant No.l, cannot be considered as binding on delendant No.l. This Court considers that there were no substantial questions of law arising in this matter. As such, the second appeal is liable to be dismissed.

21. Accordingly, the Second Appeal is dismissed confirming the judgment and decree dated 23.01 .2004 passed in A.S. No.35 of 2002 by the VI Additional District and Sessions Judge (FTC)' Nizamabad. No order as to costs. Miscellaneous applications pending, if any, shall stand closed. ,TRUE COPY// Sd/. K. SAILESHI PUTY REGISTRAR SECTION OFFICER

1. The Vl Additional District and Sessions Judge (Fast Track Court), Nizamabad (with records, if any)

2. " The Principal Junior Civil Judge, Nizmabad. 3. One CC to Sri K M Mahender Reddy, Advocate [OPUC] 1. Qn. CC to Sri S. Satyam Reddy, Advocate IOPUCI 5. Two CD Copies To, VIl/gh <" 1$e SiAi€: , z Ct o I 19 APn 2025 * ()Ff:T}AT: + HIGH COURT DATED: 3110112025 JUDGMENT+DECREE SA.No.1039 of 2005 DISMISSING THE APPEAL WITHOUT COSTS "%