Madras High Court
Praveen vs Maheswari on 23 April, 2021
S.A.(MD)No.698 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.698 of 2013
and
M.P.(MD)No.1 of 2013
Praveen ... Appellant
Vs.
Maheswari ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree in A.S.No.16 of 2012, on the file of the Sub
Court (Camp Court), Padmanabhapuram, dated 30.10.2012, confirming the
judgment and decree in O.S.No.156 of 2000, on the file Additional District
Munsif Court, Eraniel, dated 25.11.2011.
For Appellant : Mr.K.P.Narayanakumar
For Respondent : Mr.H.Velavadhas
https://www.mhc.tn.gov.in/judis/
1/8
S.A.(MD)No.698 of 2013
JUDGEMENT
The plaintiff in O.S.No.156 of 2009 on the file of the Additional District
Munsif Court, Eraniel, is the appellant herein. The plaintiff filed the said suit
for recovery of a sum of Rs.45,385/- from the defendant/Maheswari on the
strength of Ex.A.1/promissory note dated 06.02.2009. According to the
plaintiff, he was very close to the husband of the defendant. The defendant
borrowed a sum of Rs.40,000/- from the plaintiff on 06.02.2009 and executed
the suit promissory note agreeing to repay the same with interest at the rate of
18% per annum. The defendant did not repay the loan inspite of several
demands. Therefore, the plaintiff issued Ex.A.2/notice dated 14.10.2009. After
receiving the the same, the defendant issued Ex.A.4/reply dated 30.10.2009
containing false averments. Since the demand set out in Ex.A.2/notice was not
complied with, the plaintiff had filed the aforesaid suit. The defendant filed her
written statement denying the execution of the suit promissory note. She had
lodged complaints against one advocate by name Vimalan and pursuant to her
complaint, the encroachment allegedly committed by the said Vimalan was
removed and therefore, the said Vimalan was having a motive against her. She
would allege that the said Vimalan fabricated the suit promissory note in
collusion with the plaintiff herein. The plaintiff examined himself as P.W.1 and
one Sasi Stalin, who is said to be an attesting witness was examined as P.W.2.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.698 of 2013
Exs.A.1 to A.4 were marked. The defendant examined herself as D.W.1 and
her departmental superior was examined as D.W.2. Exs.B.1 to B.11 were
marked. Exs.X.1 to X.3 were also marked through D.W.2 as court documents.
2.After considering the evidence on record, the suit was dismissed by
judgment and decree 25.11.2011. Questioning the same, the plaintiff filed
A.S.No.16 of 2012 before the Additional Sub Court, Nagercoil. In the appeal,
the plaintiff also took out a petition for referring the suit promissory note for
expert opinion. The first appeal was taken up for disposal and vide judgment
and decree dated 30.10.2012, it was dismissed. The miscellaneous petition
filed by the plaintiff was also dismissed along with the first appeal.
Questioning the same, this second appeal came to be filed.
3.Though the second appeal is of the year 2013, till date it has not been
admitted.
4.Heard the learned counsel on either side.
5.The learned counsel for the appellant reiterated all the contentions set
out in the memorandum of grounds and called upon this Court to frame
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.698 of 2013
substantial questions of law and admit the appeal and thereafter post the matter
for hearing.
6.Per contra, the learned counsel for the respondent would contend that
the impugned judgments do not call for any interference. He would also argue
that no substantial question of law arises for determination. He pressed for
dismissal of the second appeal.
7.I carefully considered the rival contentions and went through the
evidence on record. The case of the appellant is anchored on
Ex.A.1/promissory suit. Before filing the suit Ex.A.2/notice was issued. The
defendant received the notice and gave her reply vide Ex.A.4, in which she
categorically denied the execution of the suit promissory note. When the
defendant challenged the signature attributed to her in the suit promissory note,
the burden was squarely on the plaintiff to establish the genuineness of the
document. The plaintiff failed to take steps for getting the expert opinion as
regards the veracity of the signature found in Ex.A.1/promissory note.
8.The plaintiff examined himself as P.W.1 and the attesting witness as
P.W.2. The Courts below have referred to the testimony of P.W.1. P.W.1 did
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.698 of 2013
not even know the avocation of the husband of the defendant. The plaint in
fact commences with the averment that the plaintiff and the husband of the
defendant are close friends. But in the cross examination, he betrayed his lack
of knowledge about the avocation of the defendant's husband. This throws
considerable doubt on the claim of the plaintiff that in view of his friendship
with the defendant's husband, he advanced the suit loan to the defendant.
9.The defendant is working as staff nurse in a transport corporation. The
place where the suit promissory note was said to have been executed is at a
distance of more than 15 kms from the office of the defendant. The date on
which the promissory note was executed was a working day. P.W.2 answered
in the cross examination that when the promissory note was executed, it was
around 01.30 pm. P.W.2 would make it appear that as if the transaction went
on from 12.30 pm to 01.30 pm. The defendant has effectively rebutted this
evidence by examining her superior as D.W.2. The testimony of D.W.2 as well
as the court documents would indicate that on the date and time, when the suit
promissory note is said to have come into existence, the defendant was very
much in her work place. The testimony of D.W.2 could not be challenged.
Taking into account all these aspects, the trial court came to the conclusion that
the version projected by the defendant as to how the suit promissory note came
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.698 of 2013
into existence had been established on a balance of probabilities. Of course, in
the Appellate Court, the plaintiff did file a petition for referring the suit
promissory note for expert opinion. The plaintiff has not given any explanation
as to why this step was not taken at the first instance. The Appellate Court was
justified in holding that the plaintiff having missed the bus cannot at the first
appeal stage insist that the suit document should be referred for expert opinion.
The Courts below have carefully and correctly appreciated the entire facts and
evidence appearing on record and came to the conclusion that the plaintiff has
not at all established his case on a balance of probabilities. No substantial
question of law arises for determination. I find no merit in the second appeal
and it stands dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
23.04.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.698 of 2013
To:
1.The Sub Court (Camp Court),
Padmanabhapuram.
2.The Additional District Munsif Court,
Eraniel.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.698 of 2013
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.698 of 2013
23.04.2021
https://www.mhc.tn.gov.in/judis/
