Judgment:
C.Y. Somayajulu, J.
1. Plaintiff in O.S. No. 10 of 1995 on the file of the Court of the Subordinate Judge, Kandukur, is the appellant For the sake of convenience, the parties would hereinafter be referred to as they are arrayed in the Trial Court.
2. Plaintiff filed the suit for recovery of Rs. 30,330/- being the principal and interest due on the promissory note dated 17-12-1981, executed by late Pothula Venkata Narasaiah husband of the first defendant and father of the Defendants 2 and 3. The contention of the defendants is that the suit promissory note is a renewal of the earlier promissory notes and since the executant of the suit promissory note was an agriculturist within the meaning of A.P. (Andhra Area) Agriculturists Relief Act, 1938, hereinafter referred to as Act 4 of 1938, the transaction has to be reopened and interest has to be scaled down and if it is so scaled down the amount payable by them would only be Rs. 9,890.06 ps. and that they have no objection for passing a decree for the said amount.
3. Basing on the pleadings the Trial Court framed four issues for trial. In support of his case, plaintiff examined himself as P.W.1 and the attestors of the suit promissory note as P.Ws.2 and 3, and the suit promissory note is marked as Ex.A.1. In support of their case defendants examined one witness as D.W.1 and marked Exs.B.1 to B.18 on their behalf. On Issue No. 1, which relates to the question whether the plaintiff lent Rs. 24,800/- under Ex.A.1, on Issue No. 2, which relates to the question whether the suit promissory note is liable to be scaled as per the provisions of the Act 4 of 1938 and on Issue No. 3, which relates to the principal amount lent by the father of the plaintiff to the executant under Ex.A. 1 as mentioned in Para 5 of the written statement the Trial Court held in favour of the defendants, and consequently on Issue No. 4, which relates to the relief, passed a decree for Rs. 9,890.06 ps. with interest at 6% per annum on Rs. 3,400/- from the date of suit till the date of realization. Hence this appeal.
4. The main contention of the leaned Counsel for the plaintiff is that the Court below erred in finding on Issues 1 to 3 in favour of the defendants though there is no reliable evidence on record to show that Exs.B.4 to B.11 are true and genuine, only on the basis of surmises and conjectures, placing absolute reliance on the evidence of D.W.1, who admittedly has no personal knowledge about the said transactions. The main contention of the learned Counsel for the defendants is that since the calculations found in Exs.B.4, 5, 7 and 9 and the endorsements on Exs.B.6, 8, 10, and 11 clearly show that the suit promissory note is a renewal of those promissory notes and since the Trial Court gave cogent reasons for its conclusion that the suit promissory note is a renewal of earlier promissory note there are no grounds to interfere with the decree and judgment of the Trial Court.
5. At the out set I must state that the Trial Court did not frame the issues properly and had obviously overlooked the presumption under Section 118 of Negotiable Instruments Act. Obviously the Court below failed to note that defendants admitted execution of Ex.A.1. Since their case is that Ex.A.1 is a renewal of an earlier promissory note, which is not referred to in Ex.A.1, it is for them to establish the said fact and so the burden to establish that Ex.A. 1 is a renewal promissory note of an earlier promissory note is on the defendants and so as per Rules 1 and 3 of Order 18 CPC it is the defendants that have to lead the evidence in the first instance, because had the parties not adduced evidence on their behalf, in view of the admission of the defendants in their written statement about the execution of Ex.A.1 and Section 118 of Negotiable Instrument Act, and Section 102 of Evidence Act, plaintiff would have been entitled to a decree in his favour. Because of the wrong casting of Issue No. 1 plaintiff had to lead evidence in the first instance and was deprived of an opportunity to speak about Ex.B.1 to B.18 relied on by the defendants in their evidence.
6. The point for consideration is whether the suit promissory note (Ex.A.1) is a renewal of the earlier promissory note and if the executant of Ex.A.1 is entitled to the benefit of Act 4 of 1938.
7. The evidence of D.W.1 who is the son of second defendant and the grandson of the executant of the Ex.A.1 is that he was brought up by his maternal grandfather i.e., the executant of Ex.A.1. He produced Ex.B.1 (secondary school leaving certificate) to show that his grandfather Venkata Narasaiah was his guardian. From Ex.B.1 it is seen that D.W.1 who gave evidence in October 1988 was born in June 1962. So it is clear that D.W.1 was aged about 26 years when he gave evidence. He produced Ex.B.4 promissory note dated 22-7-1958 for Rs. 5,000/- said to have been executed by his grandfather Venkata Narasaiah (executant of Ex.A.1) in favour of Chenchurama Naidu, Ex.B.5 endorsement on Ex.B.4 shown that a promissory note dated 21-7-1961 for Rs. 6,525/- was executed in favour of Chenchurama Naidu. D.W.1 produced Ex.B.6 promissory note for Rs. 6,125/- dated 30-12-1963 said to have been executed by Venkata Narasaiah (executant of Ex.A.1) in favour of Chenchurama Naidu, which contains Ex.B.7 endorsement that promissory note was renewed on 29-12-1966. D.W.1 also produced Ex.B.8 promissory note dated 10-7-1964 for Rs. 7,489/- said to have been executed by Venkata Narasaiah (executant Ex.A.1) in favour of Chenchurama Naidu, which contains Ex.B.9 endorsement that the promissory note was renewed for Rs. 9,160-54 on 10-7-1967 D.W.1 also produced Ex.B.10 promissory note dated 10-7-1967 for Rs. 9,160-54 containing Ex.B.11 endorsement that it was renewed for Rs. 11,220/- on 9-7-1970. D.W.1 also produced Ex.B.13 promissory note dated 22-12-1972 said to have been executed by Venkata Narasaiah (executant of Ex.A.1) for Rs. 11,220/-. Ex.B.14 is the promissory note dated 9-7-1973 for Rs. 13,700/-. Ex.B.12 and Ex.B.14 are the calculations contained in Exs.B.9 and B.13 respectively. All the above promissory notes, with endorsements, produced by D-W.1 are not in the handwriting of and do not contain the signatures of either the plaintiff or anybody on behalf of the plaintiff. None of the attestors or scribes thereof are examined by the defendants. D.W.1 cannot have personal knowledge about those transactions as he was born in 1962 and Ex.B.4 is of 1958, i.e., before his birth.
8. Learned Counsel for the defendants strongly contends that since the calculations found in Ex.B.12 and Ex.B.14 tally with the amounts mentioned in the renewed promissory notes it is easy to see that the suit promissory note is a renewal of the earlier promissory notes. When Exs.B.4 to B.14 are not proved by examining anybody who has knowledge of those transactions, and when they do not contain the signatures of the plaintiff or his representative they cannot be taken into consideration, because they remained unproved. Thus the Trial Court erred in relying on the self-serving documents produced by the defendants.
9. The Trial Court on basis that the plaintiff failed to produce the account books, in response to Ex.B.2 notice to produce, erroneously drew an adverse interference against the plaintiff, ignoring the endorsement on Ex.B.2 and also the evidence of plaintiff as P.W.1 that he does not maintain account is and that he is not an income tax assessee. On the ipsi dixit of D.W.1 that plaintiff is an income tax assessee it cannot be said that plaintiff is an income tax assessee, more so because D.W.1 did not produce any certificate from the income tax authorities to show that the plaintiff is an income tax assessee. Thus the evidence adduced by the defendants does not rebut the presumption under Section 118 of the Negotiable Instruments Act and the evidence adduced by the plaintiff and so the plaintiff is entitled to decree as sought for. The point is answered accordingly.
10. In view of the finding and the point for consideration the appeal is allowed and the judgment and decree of the Trial Court are set aside, and O.S. No. 10 of 1995 on the file of the Court of the Subordinate Judge, Kandukur is decreed with costs throughout.