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2013 DIGILAW 1516 (MAD)

K. K. Ramasamy v. Kannappan

2013-04-03

G.RAJASURIA

body2013
JUDGMENT 1. This Second appeal is focused by the defendant animadverting upon the judgment and decree dated 01.08.2012 passed in A.S.No.6 of 2012 by the Subordinate Judge, Gobichettipalayam, confirming the judgment and decree of the District Munsif, Gobichettipalayam in O.S.No.96 of 2010. 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this Second Appeal would run thus: (a) The plaintiff fled the suit for recovery of a sum of Rs.63,125/-(Rupees sixty three thousand one hundred and twenty five only), based on the suit promissory note purported to have been executed by the defendant in favour of the plaintiff undertaking to pay a sum of Rs.15,000/- (Rupees fifteen thousand only) with 12% interest. After issuance of pre suit notice, the plaintiff filed the suit. After the filing of the suit, reply notice was given by the defendant challenging and impugning the suit promissory note. (b) Per contra, the defendant filed the written statement alleging that ten years anterior to the filing of the suit, there were some money transactions between the plaintiff and the defendant and the plaintiff taking undue advantage of his nearness with the defendant forged the suit promissory note and filed it. Accordingly, he would pray for the dismissal of the suit. (c) The trial Court framed the relevant issues. (d) Up went the trial, during which the plaintiff/Kannappan examined himself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A4 were marked; and the defendant/K.K.Ramasamy examined himself as D.W.1. 4. Ultimately the trial Court decreed the suit, as against which the appeal was filed for nothing but to be dismissed, confirming the judgment and decree of the trial Court. 5. Challenging and impugning the judgments and decrees of both the fora below, this Second Appeal has been focused on various grounds and also suggesting the following substantial questions of law: "(1) Whether the courts below is right in holding that the suit promissory note is genuine and the defendant has validly execute the promissory note? (2) Whether the observations made by the courts below finding fault with the defendant for not taking steps seeking expert opinion on the signature found in the disputed document as a preliminary note exhibits the absence of unbiased approach? (2) Whether the observations made by the courts below finding fault with the defendant for not taking steps seeking expert opinion on the signature found in the disputed document as a preliminary note exhibits the absence of unbiased approach? (3) Whether the Courts below failed apply the principles of law regarding burden of proof has heavily cast on the plaintiff and the plaintiff failed to discharge the burden by reliable evidence sufficient atleast shift the burden and cast it on the defendant to prove the opposite?" (extracted as such) 6. The learned counsel for the plaintiff would pyramid his argument, which could succinctly and precisely be set out thus: The burden in on the plaintiff alone to prove the genuineness of the signature in Ex.A1 the pro note, by taking the assistance of an handwriting expert, but both the Courts below wrongly held as though the burden was on the defendant to take the assistance of an handwriting expert to prove that the disputed signature was a forged and fabricated one. Reply was given to the notice issued by the plaintiff. However, both the Courts below did not consider the said fact. Accordingly, he would pray for setting aside the judgment and deree of both the Courts below and for the dismissal of the suit. 7. At the outset, I would like to fumigate my mind with the recent decision of the Hon'ble Court reported in 2012 (8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92 , this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added) 8. Unless there is any substantial question of law is involved, the question of entertaining the second appeal would be a well neigh impossibility. 9. A mere running of the eye over the typed set of papers and the judgments of both the fora below, would evince and evidence that the Courts below relied on the depositions of the plaintiff as P.W.1 and also the corroborative depositions of P.W.2 - the witness and P.W.3 - the scribe in Ex.A1 and held that the burden got shifted on the defendant, but the defendant did not rebut it. The Courts below also relied on Section 118 of the Negotiable Instruments Act. 10. The short point for consideration is as to whether there is any perversity or illegality in the judgments rendered by both the fora below? 11. There is no hard and fast rule that in all cases the Court should insist upon the plaintiff to take the assistance of an handwriting expert to prove the genuineness of the disputed signature in the pro note or in some other document. Even by examining the attestor and the scribe of the document, the same could be proved. In this case, virtually it happened so. The findings of the trial Court were to the effect that there is no material contradiction among the depositions of P.Ws.1 to 3. The appellate Court also being the last Court of facts, has not found fault with such finding. In such a case, as per the well settled and trite proposition of law, as against the concurrent finding of facts, interference of the Second Appellate Court is not warranted, unless there is any perversity or illegality. 12. Regarding the burden of proof is concerned, the Courts below correctly applied the theory. In such a case, as per the well settled and trite proposition of law, as against the concurrent finding of facts, interference of the Second Appellate Court is not warranted, unless there is any perversity or illegality. 12. Regarding the burden of proof is concerned, the Courts below correctly applied the theory. In view of the cogent and convincing evidence adduced on the plaintiff's side by examining P.Ws.2 and 3, so as to buttress and fortify the evidence of plaintiff as P.W.1, the Court held that the burden got shifted to defendant which he failed to discharge. The burden of proof is always ambulatory. Accordingly, I could see no illegality in the order passed by both the fora below. 13. Relating to interest also, pendente lite interest was awarded only at the rate of 9% per annum and post decretal interest was awarded at the rate of 6% per annum, which are in concinnity with the equitable principles as well as Section 34 of CPC. Hence, I am of the view that there is no illegality or perversity in the judgments and decrees of both the fora below. Accordingly, this Second Appeal is dismissed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.