Duraisamy vs Chockaram
2021 Latest Caselaw 10607 Mad

                                                                              S.A.(MD)No.866 of 2013

                                    THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     DATED: 26.04.2021

                                                             CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                                  S.A.(MD)No.866 of 2013
                                                           in
                                                   M.P.(MD)No.2 of 2013

                   Duraisamy                                                       ... Appellant
                                                             -Vs-


                   Chockaram                                                   ...Respondent


                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and Decree passed by the Sub Court,
                   Arupukottai in A.S.No.12/2011, dated 07.12.2011 by confirming the
                   Judgment and Decree passed by the District Munsif Court, Arupukottai in
                   O.S.No.149 of 2006 dated 24.09.2010.
                                             For Appellant     : Mr.G.Mari Muthu
                                             For Respondent : Mr.V.Perumal
                                                        JUDGMENT

The defendant in O.S.No.149 of 2006 is the appellant herein.

The respondent Chockaram filed the said suit on the strength of Ex.A1-pro

note. The case of the plaintiff is that on 17.07.2003, the defendant

approached him and took a loan of Rs.50,000/- after executing the suit pro-

note. Since even after the persistent demands, the loan was not repaid, the https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.866 of 2013

plaintiff issued Ex.A2-notice dated 26.03.2006. The defendant received the

notice but did not comply with the demand set out therein. Therefore, the

suit was laid. The defendant denied having borrowed from the plaintiff.

The trial Court framed the necessary issues. The plaintiff examined himself

as P.W.1 and also the attesting witness as P.W.2. Since the defendant had

denied the thumb impression attributed to him in the suit pro-note, it was

sent for expert opinion and the expert opinion confirmed the thumb

impression as that of the defendant. The expert opinion was marked as

Ex.C3. The trial Court by Judgment and decree dated 24.09.2010 decreed

the suit with cost. Challenging the same, the defendant filed A.S.No.12 of

2011 before the Sub Court, Aruppukkottai. By Judgment and decree dated

07.12.2011, the appeal was dismissed. Challenging the same, this second

appeal came to be filed. The second appeal was admitted on the following

substantial questions of law:-

1.Whether the Courts below are correct in decreeing the suit

for recovery of money based on the pro-note when the plaintiff has

not even examined the scribe of the pro-note to prove the validity of

the document?

2.Whether the Courts below are correct in accepting the

documents Ex.C1 to C3 without examining the Author of the

document / expert?

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.866 of 2013

2.Heard the learned counsel on either side.

3.The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds and called upon this

Court to answer the substantial questions of law in favour of the appellant

and set aside the Judgments passed by the Courts below.

4.Per contra, the learned counsel appearing for the respondent

submitted that the suit was instituted on the strength of pro-note and the

Courts below have concurrently found the same to be genuine and that,

therefore, this Court may not interfere with the same in exercise of its

jurisdiction under Section 100 of C.P.C. He pressed for dismissal of the

appeal.

5.I carefully considered the rival contentions and went through the

evidence on record. The contention of the appellant's counsel is that

without examining the expert and marking Ex.C3 report through him, the

Court below could not have placed reliance on the expert opinion. This at

the first blush appeared to be attractive. The learned counsel appearing for

the respondent would point out that it was the defendant who took out an https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.866 of 2013

application for referring the suit pro-note for the opinion of the forensic

expert. When it transpired that the opinion was adverse, the defendant did

not choose to challenge the same.

6.Since Ex.C3 opinion was obtained at the instance of the defendant

and he has not chosen to challenge it, I have to necessarily answer the

second substantial question of law against the appellant. Here is a case

where the suit was laid on the strength of a pro-note. The plaintiff had

issued suit notice Ex.A2. The defendant received the same but did not

contest the same by giving a reply. The plaintiff examined himself as

witness. He also examined the attesting witness. There is no need to

examine the scribe. Therefore, I answer the first substantial question of law

against the appellant herein. The Judgments of the Courts below are

sustained. The second appeal is dismissed. No costs. Consequently,

connected miscellaneous petition is closed.

23.04.2021

Internet : Yes/No Index : Yes/No rmi

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.866 of 2013

To

1.The District Munsif Court, Arupukottai .

2.The Sub Court, Arupukottai .

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.866 of 2013

G.R.SWAMINATHAN, J.

rmi

Judgment made in S.A.(MD)No.866 of 2013

26.04.2021

https://www.mhc.tn.gov.in/judis/