Madras High Court
K.Dhandapani vs P.Sellathal on 22 April, 2021
S.A.(MD)No.800 of 2011
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.800 of 2011
K.Dhandapani ... Appellant
-Vs-
1.P.Sellathal
2.Minor.P.Kanagaraj
3.Minor.P.Nataraj
4.P.Nallammal ...Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree passed in A.S.No.62 of 2009 on the
file of the Sub Court, Palani dated 21.09.2010 reversing the Judgment and
Decree passed in O.S.No.472 of 2005 on the file of the District Munsif
Court, Palani, dated 15.06.2006.
For Appellants : D.Venkatesh
For Respondents : No appearance
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S.A.(MD)No.800 of 2011
JUDGMENT
The plaintiff in O.S.No.472 of 2005 on the file of the District Munsif
Court, Palani, is the appellant herein. The plaintiff filed the said suit on the
strength of two pro-notes Ex.A1 and Ex.A2 for a sum of Rs.20,000/- each
dated 20.06.2002 and 07.08.2002 executed in favour of the plaintiff by one
Palanichamy. Palanichamy had passed away even before filing of the suit.
Therefore, vide Ex.A3, dated 30.05.2005, the plaintiff issued notice to the
legal heirs of Palanichamy. The notice was returned 'unclaimed' (Ex.A4).
Since the legal heirs of Palaichamy did not come forward to clear the
liability, the suit came to be filed.
2.The defendants filed written statement denying the suit claim. The
stand of the defendants was that the plaintiff's father Kulanthaisamy
Gounder and Palanichamy used to work for one Ayyasamy in the panchayat
election. The plaintiff's father had a monetary claim against Ayyasamy. But
then, the said Ayyasamy refused to comply with the same. Hence, the
plaintiff's father wanted Palanichamy to pay the amount which he had spent.
Even as this dispute was pending, on 20.05.2003 Palanichamy passed away.
In order to settle scores, the suit pro-notes were created as if they were
executed by Palanichamy and on that basis, the suit came to be instituted.
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S.A.(MD)No.800 of 2011
Issue was framed as to whether the suit pro-note was a fraudulent one or
not. The plaintiff examined himself as P.W.1 and the attesting witness as
P.W.2. Ex.A1 to Ex.A4 were marked. The first respondent herein Sellathal
wife of Palanichamy examined herself as D.W.1. The learned trial
Munsif, by Judgment and decree dated 15.06.2006, decreed the suit as
prayed for. Questioning the same, the defendants filed A.S.No.62 of 2009
before the Sub Court, Palani. The First Appellate Court, by the impugned
Judgment dated 21.09.2010, set aside the Judgment and Decree passed by
the trial Court and allowed the appeal. Questioning the same, this second
appeal came to be filed.
3.The second appeal was admitted on the following substantial
questions of law:-
1.Whether the Judgment and decree of the lower Appellate Court is
vitiated in holding that the execution of pro-note under Ex.A1 and Ex.A2
was not proved merely on the basis of the additional evidence under
Ex.B3 and B4 even without adverting that the said Ex.B3 and B4 marked
in the appellate Court was not even contradicted to the previous
statements made by the witness under Ex.B3 and B4 as the same is
contrary to Section 145 of Evidence Act?
2.Whether the Lower Appellate Court is right in law in allowing
I.A.No.49 of 2010 for reception of additional evidence even without
adverting to the fact that the respondents 1 to 3 herein did not even satisfy
any of the conditions contemplated under Order 41 Rule 27 (aa)?
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S.A.(MD)No.800 of 2011
3.Whether the Lower Appellate Court committed an error in
negativing the claim of the appellant merely on the basis of Ex.B3 and
B4, discarding the very evidence of P.W.1 and P.W.2 adduced in the
present suit which would suffice to hold that the due execution of Ex.A1
and A2, especially the pro-notes under Ex.A1 and A2 and the pro-notes
under Ex.B1 and B2 were executed on different dates?
4.Whether the findings of the Lower Appellate Court are contrary
to the pleadings, evidence and law which is rendered without adverting to
the presumption contemplated under Section 118 of Negotiable
Instrument Act especially the appellant / plaintiff has substantiated his
claim on the basis of the evidence of P.W.1 and P.W.2 on the other hand
the respondents 1 to 3 did not take any steps to prove the alleged defence
in their written statement?
Notice was issued to the respondents. The respondents have been served
and their names have been printed in the cause list. The respondents have
not chosen to engage any counsel.
4.The learned counsel appearing for the appellant pointed out that the
plea of forgery was mechanically taken by the respondent. When D.W.1
was cross examined, she frankly admitted that she had not even seen the
suit pro-notes. The plaintiff had examined the attesting witness. Before
filing the suit, the plaintiff had also issued Ex.A3-suit notice. The same had
returned 'unclaimed'.
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S.A.(MD)No.800 of 2011
5.Taking note of these circumstances, the trial Court came to the
conclusion that the execution of the suit pro-note was duly established by
the plaintiff. The first Appellate Court strangely had chosen to proceed on
the footing that burden lay entirely on the plaintiff. As rightly pointed out
by the learned counsel appearing for the appellant, once the trial Court
came to the conclusion that the pro-notes have been executed by
Palanichamy, then, presumption under Section 118 of Negotiable
Instruments Act will automatically get triggered. Then, the onus will shift
to the defendants and it is for them to rebut the presumption. In the case on
hand, except examining D.W.1, no other evidence was adduced. D.W.1
had admitted that she had not even seen the pro-note. It is true that P.W.2
had feigned ignorance of several material aspects. But then, the role of
attesting witness is only to confirm the signature of the persons appearing in
the suit document. Ex.A1 and Ex.A2, according to the plaintiff, were
executed by Palanichamy. P.W.2 had clearly and categorically deposed that
it was Palanichamy who executed Ex.A1 and A2 pro-note. Thereupon, the
plaintiff was not expected to do anything more than that. Therefore, the
First Appellate Court has lost sight of the statutory presumption available
under Section 118 of the Negotiable Instruments Act. I therefore answer
the fourth substantial question of law in favour of the appellant.
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S.A.(MD)No.800 of 2011
6.It is true that the other questions of law have been framed as
regards allowing the petition for reception of additional evidence under
Order 41 Rule 28 of C.P.C. I am of the view that even if the said order is
sustained, that still would not make any material difference to the outcome
of the second appeal. The effect of reception of additional evidence is to
cast doubt on the testimony of P.W.2. I have already observed that the role
of attesting witness is quite limited. Even if he is not aware of the details of
the transaction between the parties, still if his testimony regarding
execution of the document is acceptable, then, that is sufficient. Even if I
answer the other substantial questions of law against the appellant, still in
view of my answer as regards the fourth substantial question of law, the
impugned Judgment and decree of the first Appellate Court is set aside and
the Judgment and decree of the trial Court is restored. I make it clear that
the respondents will be liable to satisfy the decree only to the extent of their
inheritance from Palanichamy. The Second Appeal is allowed. No costs.
22.04.2021
Internet : Yes/No
Index : Yes/No
rmi
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S.A.(MD)No.800 of 2011
To
1.The District Munsif Court, Palani.
2.The Sub Court, Palani .
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.800 of 2011
G.R.SWAMINATHAN, J.
rmi
Judgment made in
S.A.(MD)No.800 of 2011
22.04.2021
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