Velmurugan vs Nagaraj
2021 Latest Caselaw 10827 Mad

                                                                           S.A.(MD)No.209 of 2012

                                   THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED: 28.04.2021

                                                         CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.(MD)No.209 of 2012
                                                       and
                                               M.P.(MD)No.1 of 2012

                   Velmurugan                                                  ... Appellant
                                                         -Vs-


                   Nagaraj                                                 ...Respondent


                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and Decree dated 28.02.2011 made in A.S.No.
                   160 of 2007 on the file of the Additional Subordinate Judge, Dindigul
                   confirming the Judgment and decree dated 28.12.2005 in O.S.No.1518 of
                   2004 on the file of the District Munsif Court, Dindigul.


                                         For Appellant     : Mr.J.Anandkumar
                                         For Respondent : Mr.H.Lakshmi Shankar


                                                    JUDGMENT

The defendant in O.S.No.1518 of 2004 on the file of the Principal

District Munsif Court, Dindigul is the appellant in this second appeal. The

respondent herein Thiru.Nagaraj is the plaintiff.

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

S.A.(MD)No.209 of 2012

2.The case of the plaintiff is as follows:-

The defendant approached the plaintiff on 24.12.2001 and

borrowed a sum of Rs.50,000 after executing Ex.A1-pro-note. The

defendant agreed to repay the said amount with interest at the rate of

12% per annum. The defendant did not pay any interest. Nor he repaid

the principal amount. The demands made by the plaintiff in person and

through other persons were in vain. Therefore, for recovering a sum of

Rs.67,000/-which includes the principal loan amount and the accrued

interest, the plaintiff filed the aforesaid suit. The defendant denied the

plaint allegations in toto. He denied having borrowed the amount of

Rs.50,000/- from the plaintiff. He questioned the genuineness of the

promissory note relied on by the plaintiff. The defendant contended

that there was an enmity between the defendant and one Vijayaraj in

connection with a land dispute. The plaintiff had filed the suit at the

instance of the said Vijayaraj by fabricating the suit promissory note.

The learned trial Munsif framed the necessary issues. The plaintiff

examined himself as P.W.1 and one Subbiah who is said to be the

scribe as well as the attesting witness was examined as P.W.2. The

promissory note was marked as Ex.A1. The defendant examined

himself as D.W.1. The sale agreement dated 31.05.2004 entered into

between the defendant and the said Vijayaraj and another was marked https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.209 of 2012

as Ex.B1. After considering the evidence on record, the trial Court

vide Judgment and decree dated 26.12.2005 decreed the suit.

Aggrieved by the same, the appellant filed A.S.No.160 of 2007 before

the Additional Sub Court, Dindigul. By Judgment and decree dated

28.02.2011, the first Appellate Court dismissed the appeal.

Challenging the same, this second appeal came to be filed.

3.The second appeal was admitted on the following substantial

questions of law:-

“(a) Whether the Courts below are correct in law in holding

that Ex.A.1 was proved by the respondent?

(b) Whether the first Appellate Court is right in comparing the

signature in Ex.A.1 without following the law laid down in 2006(4)

CTC 850 by this Court?

(c) Whether the Courts below are right in shifting the burden to

the appellant herein, when admittedly respondent did not discharge

the burden?”

4.Heard the learned counsel on either side.

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

S.A.(MD)No.209 of 2012

5.The learned counsel appearing for the appellant submitted that vide

Ex.B1, the defendant had entered into an agreement with one Vijayaraj.

The sale agreement however could not culminate into a proper sale on

account of the attachment effected in respect of the subject matter of the

agreement at the instance of the third party. Though the agreement was

eventually cancelled that had given raise to a strained relationship between

the said Vijayaraj and the defendant. The said Vijaya Raj in order to wreck

vengeance on the defendant, had conspired with the plaintiff Nagaraj and

fabricated the suit promissory note and on that basis, the present suit was

instituted. He would point out that when the genuineness of the suit pro-

note was challenged, the burden to proof the same lay squarely on the

plaintiff. The plaintiff did not take any step for referring the suit pro-note

for opinion of the hand writing expert. The Court below ought not to have

undertaken the task of comparison of the disputed signature appearing in

Ex.A1 with the admitted signature appearing in Ex.B1. He also would

point out that the Courts below had erroneously cast the burden on the

appellant herein. The burden to prove the due execution of the pro-note and

to show that the signature appearing in suit pro-note is that of the defendant

lay only on the plaintiff and this onus can never shift to the defendant. His

contention is that the Courts below had misdirected themselves in law.

He further submitted that all the three substantial questions of law deserve https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.209 of 2012

to be answered in favour of the appellant. He pressed for setting aside the

impugned Judgment and decree and for allowing the second appeal.

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

submitted that the impugned Judgment do not warrant any interference. He

pressed for dismissal of the second appeal.

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

evidence on record. It is true that the defendant had questioned the

genuineness of Ex.A1-pro-note. Therefore, the burden to prove the same to

its due execution lay only on the plaintiff. The plaintiff had examined

himself as witness. P.W.2-Subbiah was not only a scribe but also the

attesting witness. The plaintiff had not taken steps for referring the suit

pro-note for the opinion of the hand writing expert. However, the learned

trial Munsif undertaken the task of comparison on his own. I am clearly of

the view that the trial Court acted well within its jurisdiction by undertaking

the task of comparison.

8.As rightly pointed out by the learned counsel for the respondent,

Section 73 of the Evidence Act, 1872, clearly authorizes the trial Court to

do so. Section 73 of the Indian Evidence Act, 1872 reads as follows:- https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.209 of 2012

“Comparison of signature, writing or seal with others admitted or proved:- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.”

9.The learned counsel appearing for the respondent also draws my

attention to the decision of the Madras High Court reported in (1960) 1

MLJ 142 (Vazir Begum Ammal and another Vs. Seth Tholaram)

10.I am of the view that the above decision furnish a complete answer

to the contentions advanced by the learned counsel appearing for the

appellant. Ex.B1-sale agreement was projected only by the defendant. The

admitted signature of the defendant is very much appearing in Ex.B1. The

learned trial Munsif compared the disputed signature in the suit pro-note

only with the6 admitted signature in Ex.B1. Both are fairly

contemporaneous documents. The learned trial Munsif, after perusal, had

given a categorical answer that both the signatures are that of the defendant.

The first Appellate Court did not find it necessary to interfere with the said

finding of fact. The Courts below have concurrently found that the https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.209 of 2012

appellant had executed the suit promissory note. When the plaintiff had

examined himself and also the attesting witness and the signature in the suit

promissory note has been found to be that of the defendant by the trial

Court in exercise of my jurisdiction under Section 100 of C.P.C, an

interference is not possible. I answer the first and second substantial

questions of law against the appellant. Of-course, some of the observations

made by the Courts below giving impression as if the defendant is having

the burden are clearly incorrect. The third substantial question of law is

answered in favour of the appellant. But then, that would not make any

difference to the eventual result. Those observations are more in the nature

of passing remarks and the reasoning of the Courts below is not anchored

on such observations. In view of the my answer to the first and second

substantial questions of law, I do not find any ground to interfere. The

second appeal stands dismissed. No costs. Consequently, connected

miscellaneous petition is closed.

28.04.2021

Internet : Yes/No Index : Yes/No rmi

G.R.SWAMINATHAN, J.

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

S.A.(MD)No.209 of 2012

rmi

To

1.The Additional Subordinate Judge, Dindigul.

2.The District Munsif Court, Dindigul.

3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.209 of 2012 and M.P.(MD)No.1 of 2012

28.04.2021

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