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2018 DIGILAW 2432 (MAD)

V. Khandammal v. C. Tamil Selvan

2018-08-06

P.T.ASHA

body2018
ORDER : The above Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as “the Code”), challenging the Judgment of the Subordinate Judge, Thiruppattur in A.S. No.70/2003 in and by which the learned Judge has set aside the Judgment and Decree of the Principal District Munsiff, Ambur in O.S. No. 426 of 1996. 2. Since, the value of the appeal is below Rs.25,000/-, the petitioner has invoked the provisions of Section 115 of the Civil Procedure Code. However, in the light of the Judgment reported in 2004 4 L.W. 586 (K. Chockalingam v. K.R. Ramasamy Iyer and others), wherein this Court has clearly held that the invocation of Section 115 of the Code, where the subject matter is less than Rs.25,000/-, would in all respects amount to a Second Appeal in the garb of a Civil Revision Petition, the present revision filed under Section 115 of the Code is not maintainable. However, this Judgment has been followed in 2012 (3) M.W.N. (CIVIL) 875 (Manickam Moopanar v. Lakshmi and others) and this Court has held that the remedy for an aggrieved party on account of the bar under Section 102 of the Code is to file a revision under Article 227 of the Constitution of India. The Court exercising it powers under Article 227 of the Constitution of India had then proceeded to convert the Second Appeal into a revision filed under Article 227 of the Constitution of India. 3. The learned counsel for the petitioner prayed that this Court may, in the light of the judgment in Manickam Moopanar supra, be pleased to convert the revision filed under Section 115 of the Code into one under Article 227 of the Constitution of India. Drawing strength from the aforesaid Judgment, the revision under Section 115 is converted as one under Article 227 of the Constitution of India. 4. The brief narration of the facts and issues are as follows: The petitioner who is the plaintiff had filed the suit in O.S.No.426 of 1996 on the file of the Principal District Munsiff Court, Ambur, for recovery of a sum of Rs.21,117/- together with interest at the rate of 9% per annum on Rs.20,000/- from the date of suit till date of payment. The case of the plaintiff is that on 17.01.1993 the defendant herein had borrowed a sum of Rs.20,000/-, promising to repay the same on demand together with interest at the rate of 18% per annum. The defendant had executed a promissory note for the said sum on the very same day. But, however despite repeated reminders the respondent/defendant had not come forward to pay the said amount constraining the appellant to sent a letter dated 31.05.1993, calling upon the respondent to repay the said sum. Since, the payment were not forthcoming the appellant had issued legal notice on 30.06.1993, which was also not responded to, hence the suit. 5. The respondent herein had filed a written statement inter alia denying the borrowal and the execution of the promissory note in favour of the appellant. The respondent would also contend that the appellant did not have the wherewithal to pay the said sum. He would contend that since he was posted to secunderabad and as he did not know how to reach Secunderabad, his relative Jothi took him to the plaintiff's husband who had a friend Manoharan, who knew Secunderabad. The plaintiff's husband forced the defendant to pay a sum of Rs.3,000/-. 6. Having realised that the plaintiff could be threatened into submission, it appears that the plaintiff's husband along with the said Manoharan had created the promissory note. The suit promissory note is a forged one and no consideration has passed under the said document. Therefore, the respondent sought to have the suit dismissed. During the trial the plaintiff had examined herself as P.W.1 and the said Jothi and Manoharan as P.Ws 2 and 3. In support of her case she had marked Exhibits A1 to A4. On his part the defendant had examined himself as D.W.1. and one Srihari as D.W.2, he would file Exhibits B1 to B6 in support of his case. The learned District Munsif, after the detailed enquiry returned a finding that the Promissory Note was a valid document and therefore the onus was on the respondent to prove that no consideration had passed. The respondent having failed to prove the same, the suit was decreed. 7. The respondent took this Judgment and Decree on appeal and the learned Subordinate Judge, Thiruppattur, reversed the Judgment and Decree of the learned Principal District Munsiff, Ambur. Aggrieved by this Judgment and Decree the appellant is before this court. The respondent having failed to prove the same, the suit was decreed. 7. The respondent took this Judgment and Decree on appeal and the learned Subordinate Judge, Thiruppattur, reversed the Judgment and Decree of the learned Principal District Munsiff, Ambur. Aggrieved by this Judgment and Decree the appellant is before this court. 8. Mr. D. Senthil Kumar, learned Counsel for the petitioner submitted the following arguments:- The learned Counsel would argue that the respondent had come forward with the specific case that he had not borrowed the said sum of money and that he had only approached the plaintiff's husband for guidance to reach Secunderabad. The respondent has not proved this contention. In fact the legal notice dated 30.06.1993 was refused by the respondent, if the contention of the respondent that he had not borrowed was correct, then he would have on receipt of the legal notice immediately sent a reply disputing the same. The learned Counsel would further submit that the appellant had clearly deposed regarding her wherewithal and the same has not been countenanced by the respondent. He would also contend that the appellate court has not considered the evidence of P.W.2, who is none other than the cousin of the respondent and the person who had brought the respondent to the petitioner. He has clearly deposed to the borrowal and the execution of the Promissory Note. 9. He also drew my attention to the evidence of P.W.3, the other witness to the Promissory Note, who has also categorically narrated the borrowal and execution of the Promissory Note and has also narrated the manner in which the sum of Rs.20,000/- was given to the respondent. The learned Counsel would also draw my attention to the cross examination of the respondent as D.W.1, wherein he has admitted that there is no enmity between him and the attesting witness to the Promissory Note, P.W.3. He would also point out the admission of D.W.1 about his relationship with Jothi, which once again is without any animosity. 10. The learned Counsel would also argue that the respondent who has come forward with the case that his signature has been forged has not taken diligent steps, to have the signatures examined by an expert. He has not produced the contemporaneous documents for examination by the handwriting expert. 10. The learned Counsel would also argue that the respondent who has come forward with the case that his signature has been forged has not taken diligent steps, to have the signatures examined by an expert. He has not produced the contemporaneous documents for examination by the handwriting expert. The documents that have been produced for comparison with the Promissory Note dated 17.01.1993 is the signature in the Vakalat dated 26.11.1996, the signatures in the written statement dated 10.01.1997 and the signatures on the written statement. 11. The expert witness has admitted that he is not in a position to state that this signature is forged. The witness has not been able to depose with clarity that the Promissory Note is a forged one. The learned Counsel would therefore argue that the Promissory Note having been proved by examining witnesses and the same not having been controverted by the respondent, the appellate court was in error in setting aside the well considered Judgment and Decree of the Trial Court. 12. Heard the learned Counsel for the petitioner. The learned Counsel for the petitioner submitted the following Judgments:- 1. 2006 (2) CTC 201 2. 2006 (3) LW 58 3. AIR 1996 SCC 2184 4. 2016 (1) MWN(Cr.) 350 SC 13. The respondent though served did not enter appearance. The plaintiff who has filed the suit on a Promissory Note has discharged her burden by examining the two witnesses to the Promissory Note. One of then is the person who had introduced the respondent to the plaintiff. The respondent in his cross examination has clearly admitted that there is no animosity between him and these two independent witnesses. In fact P.W.2 is a close relative of the respondent. The respondent who had come forward with a case that he had not borrowed any money from the appellant and that he had not executed the Promissory Note has failed to discharge the onus cast upon him to prove the same. He has also kept away the contemporaneous documents from the expert and had he produced those documents (which during his cross examination he had admitted that he possesses), a fair conclusion could have been arrived at by the expert with reference to the signature found in the disputed Promissory Note Ex.A1. 14. He has also kept away the contemporaneous documents from the expert and had he produced those documents (which during his cross examination he had admitted that he possesses), a fair conclusion could have been arrived at by the expert with reference to the signature found in the disputed Promissory Note Ex.A1. 14. The respondent has also come forward with a taller story that he had approached the plaintiff's husband for finding out as to how he could reach Secunderabad which story he has come forward with to show nexus with the plaintiff. This factum has also not been proved by him by examining the independent witnesses. 15. In fact this court is constrained to draw an adverse inference from the non production of contemporaneous documents by the respondent, which appears to be an attempt to prevent the court from coming to the correct conclusion. The Appellate Court clearly erred in comparing the signatures found in the vakalat and written statement with the disputed signature. This court has time and again deprecated the practise of comparing disputed signature with the signatures in the pleadings where there is a scope for the parties to alter their signatures. The comparison of signatures has to be only with contemporaneous documents and not with documents of recent origin. 16. The Division Bench of this Hon'ble Court in the Judgment reported in 2006 (3) L.W. 58 , (Central Bank of India, Rep. by its Manager v. Antony Hardware Mart, Rep. by its Proprietor) has observed as follows:- “It is settled law that the disputed signature can be compared with admitted signature, which were contemporaneous and not with the admitted signatures obtained subsequent to the date of the disputed signature. By lapse of time, there may be some difference in the signature of a person”. 17. For the above reasons, the learned Subordinate Judge, Thiruppatur has clearly erred in setting aside the judgment and decree of the learned Principal District Munsif, Ambur, in O.S. No. 426 of 1996, dated 31.03.2003. 18. In the result the Civil Revision Petition is allowed. The Judgment and Decree of the learned Subordinate Judge, Thiruppatur in A.S. No.70 of 2003, dated 28.02.2005 is set aside and the Judgment and Decree of the learned Principal District Munsif, Ambur, in O.S. No. 426 of 1996, dated 31.03.2003 is confirmed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.