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2009 DIGILAW 2587 (MAD)

A. Sivapatham v. R. Madanagopal

2009-07-23

K.K.SASIDHARAN

body2009
Judgment :- This revision petition is directed against the Order dated 012. 2008 in I.A. No. 267/2008 in O.S.No. 10/2006 on the file of the learned Subordinate Judge, Maduranthagam, whereby and whereunder, the application preferred by the revision petitioner to send the promissory note for expert opinion was dismissed. 2. The petitioner is the defendant in O.S.No. 10/2006 preferred by the respondent before the Subordinate Judge, Maduranthagam. The Prayer in the suit was to direct the petitioner to pay a sum of Rs. 1, 17,966/-with interest and cost on the basis of a promissory note stated to have been executed by the revision petitioner on 07.03.2003. .3. The Suit was resisted by the revision petitioner by filling written statement. It was the contention of the revision petitioner that he has not borrowed the amount as stated in the plaint. Similarly, there was no promissory note executed by him so as to give cause of action to the respondent to file a suit against him. In short, he expressly denied the execution of promissory note agreeing to pay a sum of Rs. 1, 00,000/- on 07.03.2003. Subsequently an additional written statement was filed by the revision petitioner wherein he has stated that the alleged Signature in the revenue stamp was a rank forgery committed by the respondent. However, he admitted his signature just below the revenue stamp in the alleged promissory note. 4. Subsequently, the respondent filed an application in I.A.No. 80/2007 to send the suit promissory note marked as Ex.A-1 along with the signature of the revision petitioner in the vakalat for expert opinion. The said application was adjourned time and again for enquiry. Ultimately, the respondent has not pressed the application and accordingly, the said application was dismissed. 5. While the matters stood thus, the revision petitioner filed as application in I.A.No. 267/2008 for the purpose of sending the suit promissory note for expert opinion. 6. In the affidavit filed in support of the application, it was contended by the revision petitioner that the signature as found in the revenue stamp was not his signature and it was nothing but a forgery committed by the respondent. However, he admitted the signature found just bellow the revenue stamp. Accordingly, he prayed for sending the document in Ex.A-1 for expert opinion. The said application was contested by the respondent by filing counter. 7. However, he admitted the signature found just bellow the revenue stamp. Accordingly, he prayed for sending the document in Ex.A-1 for expert opinion. The said application was contested by the respondent by filing counter. 7. The main contention of the respondent was regarding the delay in filling the application. According to him, there was no bona fides in filing the application and it was only on account of his inability to prove his defence before the trial Court he has filed the application. 8. The learned Trial Judge dismissed the application mainly on the ground of delay in filing the application. .9. The suit is for a money decree based on a promissory note. Therefore, the entire .burden is on the respondent to prove the execution promissory note by the revision petitioner. Though initially the petitioner denied the execution of the promissory note, subsequently, after perusing the promissory note produced by the respondent, revision petitioner filed an additional written statement wherein it was his contention that the signature as found in the document just below the revenue stamp was actually put by him. However, it was his contention that the signature found in the revenue stamp was not put by him and as such, it was a forgery. 10. The entire basis of the case of the respondent was the promissory note stated to have been executed by the revision petitioner. Therefore, the burden is on him to prove that the promissory note was executed by the revision petitioner. It was not as if the revision petitioner has to prove the negative. 11. In Thiruvengadam Pillai v. Naveneethammal and another, 2008 (4) SCC 530 , the issue before the Supreme Court was regarding the observation made by the First Appellate Court about the failure on the part of the Defendants to prove that the Signature was forged. By concurring with the views of the High court in setting aside the findings of the trial Court, by observing that it was for the plaintiff to prove the execution of document, the Supreme Court held thus:- “19. The trial Court had analyzed the evidence properly and had dismissed the suit by giving cogent reasons. The first Appellate Court reversed it by wrongly placing onus on the Defendants. The trial Court had analyzed the evidence properly and had dismissed the suit by giving cogent reasons. The first Appellate Court reversed it by wrongly placing onus on the Defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the Defendants, it was for the Defendants to establish that the document was forged or concocted, is not sound proposition. The first Appellate Court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the Defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first Defendant had executed the agreement and not on the first defendant to prove the negative. The issue also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witness.” 12. In P. Sood & Co., (Manufacturing) represented by its Partner, Krishna Kumar Sood vs. Peerchand Misrimalji Bhansali, Prop., Meena Metals, [2005 (3) CTC 12], Division Bench of this Court opined that when the defendant denied the signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps to ascertain the genuineness of the disputed signature by sending the document to hand writing expert. 13. In the present case, the petitioner has admitted his signature found just below the revenue stamp. However, he has specifically denied the signature as found in the revenue stamp. The respondent has also filed in application in I.A.No. 80/2007 to send the suit promissory note for expert opinion. The said application proceeded on the basis that the revision petitioner has denied the execution of promissory note and he has also preferred a criminal complaint against him before the CBCID, Kanchipuram. The respondent has also filed in application in I.A.No. 80/2007 to send the suit promissory note for expert opinion. The said application proceeded on the basis that the revision petitioner has denied the execution of promissory note and he has also preferred a criminal complaint against him before the CBCID, Kanchipuram. The said application was adjourned from time to time and finally, the respondent has made an endorsement that he was not pressing the application and accordingly, the application was dismissed. It was only in the said circumstances, the revision petitioner has filed an application for the very same relief which was earlier sought for by the respondent. 14. The revision petitioner has also produced the docket sheet in I.A.No. 80/2007 wherein it is found that the application filed in February, 2007 was kept pending till 012. 2008. Therefore, the credit for dragging the suit from February, 2007 to December, 2008 goes to the respondent only. The learned Trial Judge was not correct in his observation that the intention of the revision petitioner was to drag on the proceedings. While making such observation against the revision petitioner, the learned Trial Judge has conveniently forgotten the fact that the very same petition was earlier preferred by the respondent and for the reasons best known to him, he has not pressed the said application. 15. In the normal circumstances, the burden is on the plaintiff to prove the execution of the promissory note, Since there are two different signatures in the very same promissory note, interest of justice requires that the application should be allowed. It is more so on account of the fact that the respondent himself has earlier filed an application and the same was dismissed after a long time for the reasons best known to him. In any case, the delay cannot be attributed fully to the revision petitioner. Therefore, I am of the view that the petitioner has made out a case for sending the document for expert opinion. While arriving at the decision, I have also taken into consideration the proceedings initiated by the revision petitioner before police the also on the very same allegation, which is also found mentioned in the application in I.A.No. 80/2007. 16. Therefore, I am of the view that the petitioner has made out a case for sending the document for expert opinion. While arriving at the decision, I have also taken into consideration the proceedings initiated by the revision petitioner before police the also on the very same allegation, which is also found mentioned in the application in I.A.No. 80/2007. 16. Therefore, on a careful consideration of the entire matter, I am of the view that the application filed by the revision petitioner for sending the document for expert opinion deserves to be allowed. 17. In the result, the Order dated 012. 2008 passed by the Sub Judge, Maduranthagam in I.A. No. 267/2008 in O.S.No. 10/2006 is set aside. The Civil Revision Petition is allowed. No costs. Consequently, M.P. No.1/2009 is closed.