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2023 DIGILAW 1444 (AP)

Pydimarri Venkateswarlu v. Pydimarri Jalamma

2023-11-08

BANDARU SYAMSUNDER

body2023
JUDGMENT BANDARU SYAMSUNDER, J. - The appellant is the plaintiff in O.S.No.6 of 1995 on the file of Principal Senior Civil Judge's Court, Nellore. The 1st respondent/1st defendant died during pendency of the suit, and the 2nd respondent/ 2nd defendant added as legal representative of the 1st respondent/ 1st defendant in the suit. Originally, the suit was instituted by the appellant against the 1st respondent for recovery of a sum of Rs.1, 87, 880.00 with interest and costs, and after the death of the 1st respondent/1st defendant, sought decree against the estate of the 1st defendant in the hands of the 2nd respondent/2nd defendant. 2. The appellant and the 2nd respondent hereinafter referred to as plaintiff and 2nd defendant as arrayed before the trial Court. 3. The plaintiff instituted the suit against the 1st defendant for recovery of a sum of Rs.1, 87, 880.00 with interest against the estate of the 1st defendant in the hands of the 2nd defendant. It is the contention of the plaintiff that the 1st defendant, who is no other than his sister had borrowed a sum of Rs.1, 22, 000.00 from him and agreed to repay the same with interest at 18% per annum, and executed Ex.A1/promissory note on 10/12/1991, who agreed to repay the debt after selling the house property stands in her name, settled by her husband. The plaintiff submits that the husband of the 1st defendant died, and thereafter he went to Kanigiri to attend funerals and returned to Nellore, and then the 1st defendant executed a sale deed in favour of his relatives as if she sold the house property for Rs.1, 50, 000.00. The plaintiff said to be demanded the 1st defendant to repay his debt, which she has not repaid. 4. The 1st defendant filed written statement, admitting the relationship with the plaintiff, but pleaded that Ex.A1/suit promissory note is forged one. She submits that for medical treatment of her husband, she went to Madras along with her adopted son/2nd defendant, and there was no necessity for her to borrow money from the plaintiff. 5. The 2nd defendant, who impleaded as per Orders in IA No.271 of 2003, dtd. 25/8/2003 as one of the defendant, resisted the claim of the plaintiff. He also took the plea of forgery of suit promissory note, though pleaded that he is adopted son of the 1st defendant. 6. 5. The 2nd defendant, who impleaded as per Orders in IA No.271 of 2003, dtd. 25/8/2003 as one of the defendant, resisted the claim of the plaintiff. He also took the plea of forgery of suit promissory note, though pleaded that he is adopted son of the 1st defendant. 6. Basing on the above pleadings, the trial Court settled the following issues:- 1. "Whether the suit promissory note is true? 2. Whether the plaintiff is entitled to recover the suit amount as prayed for? 3. To what relief 4. Whether the 2nd defendant is liable to discharge the suit claim"? 7. The parties went to trial. On behalf of the plaintiff, PW.1 to PW.4 were examined. Exs.A1 to A10 and Exs.X1 to X3 were marked. On behalf of the 2nd defendant, DW.1 to DW.3 were examined. Exs.B1 to B14, and Ex.X4 were marked. 8. On appreciation of oral and documentary evidence, the trial Court dismissed the suit filed by the plaintiff by believing the opinion of DW.3/Handwriting Expert, who gave Ex.X4/report that Ex.A1/promissory note is a forged one. 9. Against the Decree and Judgment passed by the trial Court, the plaintiff presented AS.No.11 of 2006 on the file of Principal District Judge, Nellore which was dismissed by the First Appellate Court, and confirmed the Decree and Judgment passed by the trial Court. 10. In these circumstances, the present Second Appeal is presented. 11. I have heard learned Counsel for the appellant/plaintiff Mr.Karra Srinivas, through virtual hearing. There was no representation for the 2nd respondent/2nd defendant. 12. The learned Counsel for the appellant/plaintiff would submit that the 1st defendant for medical treatment of her husband borrowed money from the plaintiff, who is no other than her brother, but failed to repay the same in spite of repeated demands, due to that the plaintiff instituted the suit, which erroneously dismissed by the trial Court, and confirmed by the Appellate Court. He would further submit that the trial Court and the Appellate Court have gave much weightage to the evidence of DW.3/Handwriting Expert ignoring the evidence of PW.2 and PW.3, who are scribe and attestor of Ex.A1/promissory note. It is the contention of the learned Counsel for the appellant/plaintiff that the opinion of the Expert, much weight cannot be given when direct evidence is available regarding signatures in Ex.A1. It is the contention of the learned Counsel for the appellant/plaintiff that the opinion of the Expert, much weight cannot be given when direct evidence is available regarding signatures in Ex.A1. It is also the contention of the learned Counsel for the appellant/plaintiff that no contemporaneous documents were sent to compare the signature of the 1st defendant in Ex.A1, due to that Ex.X4/ opinion of the Handwriting Expert, and the evidence of DW.3 cannot be considered in view of evidence of PW.2 and PW.3/ scribe and attestor of promissory note. He prays to allow the appeal and decree the suit. 13. This Second Appeal was admitted on the following substantial question of law raised in the Memorandum of Grounds of Appeal, which reads as under: 1. "Whether the Expert opinion regarding similarities of the signature of 1st defendant is conclusive proof and whether the Courts below are justified in dismissing the suit basing on the Expert opinion on the disputed signature particularly when the plaintiff proved execution of Ex.A1/suit promissory note by examining scribe and attestor as PW.2 and PW.3? 2. Whether the Judgment of lower Appellate Court is not perverse in not appreciating the additional evidence filed regarding proof of means of plaintiff particularly when the defendant did not dispute the same? 3. Whether the variance in the signature of 1st defendant in Ex.A1 with that of his admitted signature on the documents executed after three years can be a ground for dismissal of suit particularly when plaintiff adduced other evidence to prove Ex.A1"? 14. As per Sec. 100 of CPC, this Court can interfere with the Judgment of the Appellate Court, if it is satisfied that case involves a substantial question of law. A finding of fact recorded by the Appellate Court is binding on this Court, unless there is any error of law in such finding. Even a wrong finding of fact is not sufficient to constitute a question of law. 15. In Chandrabhan (Deceased) Through LRs. And Others - Appellants vs. Saraswati and Others - Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of 2016) Judgment dtd. 22/9/2022, the Hon'ble Apex Court explained the scope of interference in Second Appeal under Sec. 100 of CPC at Para 33 of the Judgment, which reads as under: "33. 15. In Chandrabhan (Deceased) Through LRs. And Others - Appellants vs. Saraswati and Others - Respondent(s) in Civil Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of 2016) Judgment dtd. 22/9/2022, the Hon'ble Apex Court explained the scope of interference in Second Appeal under Sec. 100 of CPC at Para 33 of the Judgment, which reads as under: "33. The principles relating to Sec. 100 of the CPC relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law in constructing a document, it gives rise to a question of law. (Emphasis supplied) (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which effects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that the High Court will not interfere with findings of facts arrived at by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence, " it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 16. Both the Courts have relied on the evidence of DW.3/ Handwriting Expert, and his opinion marked as Ex.X4 and dismissed the suit. Now, it would be beneficial to quote Sec. 45 of the Indian Evidence Act, which reads as under: "45. Opinions of experts:- When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or fingerimpressions are relevant facts. Such persons are called experts". 17. It is also settled law that the evidence of Handwriting Expert is not a conclusive proof, it can be relied on basing on independent and reliable corroboration. The Hon'ble Apex Court in Ramesh Chandra Agrawal vs. Regency Hospitals Limited, AIR 2010 SC 806 . explained Expert evidence and its admissibility and laid as under: i) The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. ii) The expert must be within a recognized field of experience. iii) The evidence must be based upon reliable principles. iv) The expert must be qualified in the particular discipline. v) It must be shown that the expert has made a special study or acquired a special experience in the subject. vi) The expert must place before the Court all the materials, together with his reasons for coming to the particular conclusion. vii) Expert evidence is really of an advisory character. v) It must be shown that the expert has made a special study or acquired a special experience in the subject. vi) The expert must place before the Court all the materials, together with his reasons for coming to the particular conclusion. vii) Expert evidence is really of an advisory character. viii) The duty of an expert is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria with facts proved by the evidence of the case. 18. Evidence of the identity of hand-writing receives treatment in three Sec. of the Indian Evidence Act. They are Ss. 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a hand-writing expert or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person. 19. While appreciating the evidence of DW.3/Expert, the observation of the trial Court is as under: "On careful perusal of Exhibit X-4, I feel that DW-3 has given quite cogent reasons to arrive at best conclusion that the questioned signatures are traced forgeries. Though the opinion and reasons of an Expert is not direct evidence, the opinion under Exhibit X-4 can be taken into consideration while assessing the direct evidence adduced by the plaintiff before this Court. Though the opinion and reasons of an Expert is not direct evidence, the opinion under Exhibit X-4 can be taken into consideration while assessing the direct evidence adduced by the plaintiff before this Court. The evidence of PW-2 and PW-3 cannot be weighed in support of the evidence of PW-1 to hold that Exhibit A-1 was executed by the first defendant for Rs.1, 22, 000.00, because, there are discrepancies with regard to the denomination of currency notes covered by Exhibit A-1 and other circumstances which lead to disbelieve the evidence of PW-2 and PW-3. The evidence of PW-4 is not sufficient to hold that Exhibit A-1 was executed by first defendant in favour of the plaintiff. Since there were civil litigations pending between PW-1 and the husband of first defendant prior to Exhibit A-1, his sole testimony cannot be weighed to decree the suit in his favour. The opinion of Handwriting Expert under Exhibit X-4 can be taken as a circumstance of this case. But the suit cannot be dismissed only on the opinion of DW-3 in view of the authorities submitted by the learned Advocate for plaintiff. I feel that the authorities on which the learned Advocate for plaintiff has relied on are no way useful to the case of the plaintiff, as the facts of the case are entirely different, and in the instant case as there is no sufficient evidence on the side of plaintiff to believe the execution of Exhibit A-1 purported to have been made by the first defendant. On perusing of the admitted signature of first defendant on Exhibit A-10 with the disputed signatures purported to have been made by first defendant on Exhibit A-1, one can say that the letter " " in the signatures on Exhibit A-1 is not similar to the letter " " in the signature of first defendant made on Exhibit A-10. So also there are no fundamental similarities between the standard signatures and the questioned signatures". 20. The learned trial Judge also discussed the evidence of PW.2 and PW.3/scribe and attestor and held that they are not the independent witnesses and they are interested witnesses, and there are discrepancies in their evidence with regard to denomination of currency notes said to be lent to the 1st defendant by the plaintiff. 21. 20. The learned trial Judge also discussed the evidence of PW.2 and PW.3/scribe and attestor and held that they are not the independent witnesses and they are interested witnesses, and there are discrepancies in their evidence with regard to denomination of currency notes said to be lent to the 1st defendant by the plaintiff. 21. A perusal of the evidence of DW.3/Handwriting Expert, which is not in dispute that he is qualified in examining the disputed hand-writings, who gave his opinion, marked as Ex.X-4 with cogent reason, which rightly held by the trial Judge, confirmed by the learned Appellate Judge. DW.3/ Handwriting Expert also compared the contemporaneous signatures with admitted signatures of the 1st defendant, who marked the same as 'S8 to S14', pertaining to the periods 1991 and 1992, and gave his opinion that those admitted signatures of the 1st defendant are not similar with the signature of the executant in Ex.A1/promissory note. 22. The learned trial Judge also invoked Sec. 73 of the Indian Evidence Act and compared the disputed signature in Ex.A1 with admitted signature, and gave cogent reason for his findings. The learned trial Judge also discussed the evidence of DW.1 and Exs.B3 to B14/credit bills containing the signature of the 1st defendant, which supports the contention of the 2nd defendant that he accompanied his adopted father to the hospital for medical treatment, which falsifies the contention of the appellant/plaintiff that he accompanied him to the hospital. 23. Both the Courts have rightly appreciated the evidence of DW.3/Handwriting Expert and Ex.X4, his report by discarding the evidence of PW.2 and PW.3, who are close associates of the plaintiff, and relied on the evidence of Handwriting Expert and dismissed the suit. DW.3/Handwriting Expert also compared the contemporaneous signatures, marked as 'S8 to S14' (which documents are also marked as Exs.B7, B9, B10, B11, B12, B13 and B14) while giving his opinion with regard to disputed signature. 24. This Court is of an opinion that the Judgment of the learned Appellate Court is not perverse, which rightly confirmed the well reasoned Judgment of the trial Judge while dismissing the suit, and confirmed the Decree and Judgment passed by the trial Court. Accordingly, the substantial question of law is answered in favour of the 2nd defendant. Basing on material and evidence, both Courts have rightly appreciated the evidence and dismissed the suit filed by the plaintiff. 25. Accordingly, the substantial question of law is answered in favour of the 2nd defendant. Basing on material and evidence, both Courts have rightly appreciated the evidence and dismissed the suit filed by the plaintiff. 25. In the result, the Second Appeal is dismissed. In the circumstances of the case, both parties are directed to bear their own costs. Consequently, pending miscellaneous petitions, if any, shall stand closed. The Interim Orders granted if any, shall stand vacated.