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2012 DIGILAW 4852 (MAD)

Balasubramaniam v. Selvam

2012-11-29

P.R.SHIVAKUMAR

body2012
Judgment :- The defendant in the original suit is the appellant in the Second Appeal. The respondent in the Second Appeal filed the suit O.S. No.28 of 2008 on the file of the Sub Court, Neyveli for recovery of money due under the suit promissory note dated 13.11.2004 marked as Ex.A1. 2. The case of the respondent herein/plaintiff is that the defendant borrowed a sum of Rs.2,00,000/- on 13.11.2004 and executed Ex.A1/Promissory Note, promising to repay the said amount with interest at the rate of 12% per annum and thereafter, failed to pay any amount either towards interest or towards principal. 3. The defence plea of the appellant herein/defendant is that he did not borrow any amount much less Rs.2,00,000/-, on 13.11.2004. It is his further contention that the suit Promissory Note, produced as Ex.A1, was not executed by him and the signature found therein is not that of the appellant/defendant. He has also taken a plea that the suit promissory note is a forged one. 4. After framing necessary issues, a Trial was conducted by the Trial Court. At the conclusion of Trial, learned Trial Judge dismissed the suit. On appeal, the learned Appellate Judge reversed the judgment of the Trial Court and decreed the suit as prayed for. Hence, the Appellant herein/defendant is before this Court with this Second Appeal. 5. The following were the substantial questions of law projected by the appellant and formulated by this Court, at the time of admission: "(1) Whether the Lower Appellate Court is right in reversing the well considered judgment and decree of the Trial Court? (2) Whether the Lower Appellate Court is right in holding that the suit promissory note is genuine and that the defendant has validly execute the promissory note? (3) Whether the Lower Appellate Court is right in holding that the finding of the Trial Court that Ex.A1 is not a genuine one is not correct and that the plaintiff is entitled to a decree for recovery of the principal and interest under Ex.A1? (4) Whether the Lower Appellate Court is right in observing that even though the plaintiff and PW2 and 3 are close relatives, it is not possible to hold that they are interested witnesses and that the plaintiff has proved the due execution and signature of the plaintiff in Ex.A1? (4) Whether the Lower Appellate Court is right in observing that even though the plaintiff and PW2 and 3 are close relatives, it is not possible to hold that they are interested witnesses and that the plaintiff has proved the due execution and signature of the plaintiff in Ex.A1? (5) Whether the Lower Appellate Court is right in comparing the signatures of the appellant/defendant by itself without the aid of handwriting expert in coming to the conclusion that the signature of the appellant in Ex.A1 is true and genuine?" 6. An appeal against an appellate decree of a Court Subordinate to the High Court shall lie to the High Court under Section 100 C.P.C. only on a substantial question of law. The Section also provides that the appellant preferring the second appeal should precisely formulate the substantial questions of law and incorporate the same in the grounds of appeal. It also mandates the Court to formulate the substantial questions of law at the time of admission of the second appeal. The mere fact that a second appeal has been admitted and questions have been formulated as substantial questions of law involved in the second appeal does not mean that the respondent, on appearance, cannot contend that the said questions are not substantial questions of law involved in the second appeal. The respondent shall have a right to contend that the questions formulated are not in fact substantial questions of law in general or that though the questions are substantial questions of law, they are not the questions involved in the second appeal or that the result of those questions are not necessary for the disposal of the second appeal. 7. Mr. R. Thiagarajan, learned senior counsel appearing for the appellant fairly conceded that none of the questions formulated at the time of admission can be successfully projected as substantial questions of law involved in the second appeal. Question Nos.2 to 4, relate to the factual issues and question Nos.1 and 5 have not been happily worded. 7. Mr. R. Thiagarajan, learned senior counsel appearing for the appellant fairly conceded that none of the questions formulated at the time of admission can be successfully projected as substantial questions of law involved in the second appeal. Question Nos.2 to 4, relate to the factual issues and question Nos.1 and 5 have not been happily worded. When the High Court has formulated the substantial questions of law, on which the second appeal has been admitted, thereafter, the appellant shall not be allowed to raise any other question of law as substantial question of law without the permission of the Court and while hearing the appeal on merits, if the High Court feels that it becomes necessary to permit the appellant to raise such questions of law, it can permit him to do so. Learned senior counsel appearing for the appellant drawing the attention of this Court to the observation made by the Lower Appellate Judge finding fault with the appellant herein/defendant in not taking further steps for getting an expert opinion regarding the signature found in the disputed document after the dismissal of his application filed for such purpose before the Trial Court and contended that the said observation would show the erroneous approach made by the Lower Appellate Judge and the same should be allowed to be projected as a substantial question of law. 8. Accordingly, the following question is identified as the actual substantial question of law involved in the Second Appeal and the appellant is permitted to raise such a question: "Whether the observation made by the Lower Appellate Court finding fault with the defendant for not taking further steps pursuant to the dismissal of his application seeking expert opinion on the signature found in the disputed document as a preliminary note to the reasons on the finding based on other evidence and also based on the comparison made by the Appellate Court exhibits the absence of unbiased approach? 9. This Court heard the arguments advanced on both sides on the above said aspect. 10. The respondent/plaintiff has brought forth the suit based on the disputed suit promissory note marked as Ex.A1. The execution of Ex.A1 is denied by the appellant/defendant. In addition, he has also pleaded forgery. Under such circumstances, the burden of proving the document shall be on the respondent/plaintiff. 10. The respondent/plaintiff has brought forth the suit based on the disputed suit promissory note marked as Ex.A1. The execution of Ex.A1 is denied by the appellant/defendant. In addition, he has also pleaded forgery. Under such circumstances, the burden of proving the document shall be on the respondent/plaintiff. Of course, the respondent/plaintiff has chosen to lead evidence through PWs1 to 3 to prove the execution of Ex.A1 by the appellant/defendant. Had the Lower Appellate Judge stopped with considering the evidence available on record and based on such evidence and also on the comparison made by the said Court of the admitted and disputed signatures, arrived at a conclusion as to whether Ex.A1-Promissory Note is genuine or not, the said approach would not have been found fault with. On the other hand, as rightly pointed out by the learned senior counsel for the appellant, before ever dealing with the evidence adduced on both sides regarding the genuineness or otherwise of the document, the learned Appellate Judge referred to the fact that the appellant herein/defendant having chosen to file an application before the Trial Court for sending the disputed document along with the documents containing the admitted signatures to a handwriting expert for opinion, did not take further steps after the dismissal of the said petition and thereby apparently found fault with the appellant herein/defendant. 11. The fact remains that the appellant herein/defendant who disputes the genuineness of the document, took steps at his disposal for referring the disputed document to the handwriting expert. But unfortunately, the said efforts taken by the appellant herein/ defendant was resisted by the respondent herein by filing a counter opposing the said application bearing I.A. No.126 of 2009. Having paved the way in the dismissal of such an application, the respondent/plaintiff cannot contend that the appellant/defendant is to be blamed for not taking further steps, challenging the order of the dismissal of the said application. Having paved the way in the dismissal of such an application, the respondent/plaintiff cannot contend that the appellant/defendant is to be blamed for not taking further steps, challenging the order of the dismissal of the said application. If at all the learned Lower Appellate Court was of the view that the opinion of the handwriting expert would have thrown light on the matter in issue and such opinion would be helpful to the Court to arrive at a just conclusion, it ought to have either referred the disputed document to a handwriting expert or should have called for a finding from the Trial Court to be rendered after getting second opinion or should have remitted the matter back to the Trial Court to render a decision after referring the disputed document to the handwriting expert and obtaining the opinion of such handwriting expert. The learned Lower Appellate Judge seems to have been carried away by the fact that the appellant/defendant did not file any appeal or revision against the order passed by the Trial Court dismissing the said I.A. Of course, the same may not be the sole reason on which the judgment of the Trial Court could have been upheld. But having chosen to make such an observation, the learned Lower Appellate Judge has revealed his mind that the opinion of the handwriting expert could have been helpful to the Court to arrive at a just conclusion. 12. In view of the same, this Court accepts the contention of the learned senior counsel for the appellant that other findings of the Lower Appellate Court are not uninfluenced by the above said observation finding fault with the appellant herein/defendant in not taking further steps against the order of the Trial Court dismissing the I.A. The same shall be a valid and justifiable ground for interfering with the judgment and decree of the Lower Appellate Court. The additional substantial question of law raised with the permission of the Court is answered accordingly. 13. The fact that the additional substantial question of law is answered as indicated above in favour of the appellant does not mean that, besides setting aside the decree of the Lower Appellate Court, the decree of the Trial Court which was reversed by the Lower Appellate Court should be restored. 13. The fact that the additional substantial question of law is answered as indicated above in favour of the appellant does not mean that, besides setting aside the decree of the Lower Appellate Court, the decree of the Trial Court which was reversed by the Lower Appellate Court should be restored. On the other hand, the interest of justice shall be subserved by setting aside the decree passed by the Lower Appellate Court and also the decree passed by the Trial Court and remitting the matter back to the Trial Court with a direction to decide the case afresh after giving an opportunity to the parties to have the disputed document compared with the documents containing admitted signatures with the help of a handwriting expert and after allowing both the parties to lead further evidence. The Learned Trial Judge shall complete the exercise and pronounce the judgment within four months from the date of receipt of records. The parties shall bear their respective costs. 14. In the result, the Second Appeal is allowed and the judgment and decree dated 29.06.2010 made in A.S. No.47 of 2010 shall stand set aside and the decree of the Trial Court dated 13.11.2009 made in O.S. No.28 of 2008 is also set aside. The suit O.S. No.28 of 2008 is remitted back to the Trial Court, namely Sub Court, Neyveli to decide the case afresh after giving an opportunity to the parties to have the disputed document compared with the documents containing admitted signatures with the help of a handwriting expert and after allowing both the parties to lead evidence. The learned Trial Judge shall complete the exercise and pronounce a judgment within four months from the date of receipt of records. The parties are directed to bear their respective costs.