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1951 DIGILAW 94 (KER)

Unikkali v. Vasanthi

1951-08-22

GANGADHARA MENON, VITHAYATHIL

body1951
Judgment :- 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. 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 Krishnan Vydian under Ext. In the light of the statement in Ext. III it is difficult to believe that the amount due to Krishnan Vydian under Ext. A was not taken by him from the amounts sent to him by the 1st defendant. 3. It is argued by the respondent's learned advocate that if as a matter of fact the liability under Ext. A has been discharged there was no reason why Ext. A should not have been returned to the 1st defendant. The 1st defendant's explanation is that Krishnan Vydian told him that the promissory note was missing. Ext. II is a letter which according to the defendants was sent by Krishnan Vydian to the 1st defendant on 3.8.1108. It is stated in Ext. II that the amount under Ext. A has been taken out of the money sent by the 1st defendant to Vydian from Ceylon, that the promissory note was missing and that if it would be found it would be sent to the 1st defendant. It is true that Ext. II was filed in court only on 4.10.1116. It is also true that in Ext. C reply notice sent by the 1st defendant on 9.12.1110 there is no reference to Ext. II. It is therefore argued for the respondents that Ext. II was fabricated for the purpose of this case. The defendant's case is that Ext. II is written in the handwriting of Krishnan Vydian. Exts. III, V and J which are registered documents contain the signature of Krishnan Vydian. In Ext. V Krishnan Vydian has written his full name in his own hand. There is close resemblance between the signature in Ext. II and that in Exts. III, V and J. Krishnan Vydian's signature is one that cannot be easily imitated. More than that, there is striking resemblance between the handwriting in Ext. II and that in Ext. V. Ext. II appears to have written in a free hand. A comparison of each letter in Ext. II with the corresponding letter in Ext. V both with regard to the formation and shape shows that both are written in the same handwriting. It may be that the 1st defendant was not aware of the existence of Ext. II letter when he sent Ext. C reply notice and that Ext. II was discovered only afterwards. II with the corresponding letter in Ext. V both with regard to the formation and shape shows that both are written in the same handwriting. It may be that the 1st defendant was not aware of the existence of Ext. II letter when he sent Ext. C reply notice and that Ext. II was discovered only afterwards. In any case this fact alone cannot detract from the effect produced by the striking resemblance between the handwriting in Ext. II and that in Ext. V. Krishnan Vydian's handwriting as seen from Ext. V has a peculiarity of its own and it is not easy to imitate the same. We therefore agree with the trial court in its view that Ext. II is genuine. 4. It is to be noted that Krishnan Vydian did not make any demand for the amount under Ext. A. He died only in Mithunam 1110. The suit was filed only on 21.12.1113. It is also significant that one of the two major daughters of Krishnan Vydian refused to join as plaintiff in the case. She was therefore impleaded as 3rd defendant. In the light of these circumstances we are inclined to accept the defendant's evidence relating to the plea of discharge. D.W.1 who is an attestor to Ext. III swears that it was after final settlement of accounts between Krishnan Vydian and the 1st defendant that the balance of Rs. 343 was struck on the date of Ext. III. The 1st defendant as D.W. 2 also swears to this. D.W. 3 and D.W. 4 prove Ext. II. The evidence of these witnesses taken along with the circumstances mentioned above proves that the liability under Ext. A has been discharged out of the amounts the Ist defendant had sent to Krishnan Vydian from Ceylon and that Ext. II letter was sent by Krishnan Vydian to the Ist defendant admitting that the liability had been so discharged. The lower appellate court has not given due weight to the circumstances mentioned above. We do not agree with the view of the learned judge that there is no resemblance between the handwriting in Ext. II and that in Ext. V. The learned judge has not also correctly appreciated the effect of the statement in Ext. III that on the date of that document a balance amount of Rs. 342 was due to the Ist defendant from Krishnan Vydian. II and that in Ext. V. The learned judge has not also correctly appreciated the effect of the statement in Ext. III that on the date of that document a balance amount of Rs. 342 was due to the Ist defendant from Krishnan Vydian. It has also to be observed that so long it is admitted that the 1st defendant had sent to Krishnan Vydian an amount much larger than the one covered by Ext. A it is for the plaintiffs to prove that the amount due under Ext. A has not been taken from the amount so sent. The plaintiffs have not discharged this burden. In the circumstances the mere fact that Ext. A is found to be in the possession of the plaintiffs is not sufficient for holding that the liability under it has not been discharged. We therefore hold that the plea of discharge is true. 5. Another question for decision is whether in view of the fact that the original decree in the case was set aside only as against the 2nd defendant this court is competent to dismiss the suit as against the Ist defendant also. We are of opinion that 0.41 R.33 C.P.C. empowers us to dismiss the suit as against Ist defendant also although the decree against him was not set aside by the trial Court when the suit was restored to file on the application of the 2nd defendant although he is not a party to this second appeal. 0.41 R.33 empowers the appellate court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal of objection. We think that this is a fit case in which we should exercise this power. Reference may be made in this connection to a decision of the Madras High Court reported in 65 Madras Law Journal 15 (Thirumala v. Athimula). We think that this is a fit case in which we should exercise this power. Reference may be made in this connection to a decision of the Madras High Court reported in 65 Madras Law Journal 15 (Thirumala v. Athimula). That was a case in which A obtained an exparte decree against B and C. B applied to set aside the exparte decree and it was set aside as against both B and C. In Revision filed by the plaintiff the High Court confirmed the order as to B but reversed the order setting aside the exparte decree against C. When the suit against B was tried it was found that the document on which the suit was filed was not genuine. In appeal the High Court dismissed the suit not only against B but also against C although C was not a party to the appeal. In Krishnaswami Naik v. Anjappa Naik (AIR 1915 Mad. 227) a suit was decreed against one of the defendants exparte and against the other defendants after contest. One of the defendants that contested appealed and the appellate court dismissed the suit against all the defendants including the one against whom the decree was passed exparte. In second appeal the High Court held that it was a proper exercise of the power conferred on the appellate court by O.41 R.33. The reason of the rule is that when an appeal comes before the court the whole suit out of which the appeal arises is within the control of the court and the court has ample discretion to pass any decree or order for preventing the ends of justice being defeated. In view of our finding that the liability under Ext. A has been discharged we do not think it proper to allow the decree against the 1st defendant to stand. 6. We therefore set aside the decree of the lower appellate court and restore that of the trial court and dismiss the suit with costs in all the courts. The second appeal is thus allowed with costs.