Madras High Court
R.Palanisamy vs S.Samiyappan on 29 April, 2021
S.A.(MD)No.269 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.04.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.269 of 2014
R.Palanisamy ... Appellant
-Vs-
1.S.Samiyappan
2.S.Ganesan ...Respondents
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree dated 10.12.2010 in A.S.No.72 of
2006 on the file of the District Court, Karur in reversing the Judgment and
decree dated 13.10.2005 made in O.S.No.257 of 2002 on the file of the Sub
Court, Karur.
For Appellant : Mr.K.Govindarajan
For Respondents : Mr.D.Nallathambi
for S.A.Ganapathy Raman
JUDGMENT
The plaintiff in O.S.No.257 of 2002 on the file of the Sub court,
Karur, is the appellant in this second appeal. The case of the plaintiff is that
one Sadayappa Gounder had borrowed a sum of Rs.3,00,000/- from the
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.269 of 2014
plaintiff on 30.06.1999 and executed Ex.A1-suit promissory note.
Sadayappa Gounder passed away on 31.12.1999 leaving behind the
defendants as his legal heirs. The plaintiff issued Ex.A2-notice dated
18.02.2002 calling upon the defendants to pay the said amount with
interest. The defendants are said to have given a reply dated 28.02.2002.
Since the demand set out in the suit notice was not complied with, O.S.No.
257 of 2002 came to be instituted. The defendants had filed a written
statement challenging the genuineness of the suit promissory note. Before
the trial Court, the plaintiff examined himself as P.W.1 and one attesting
witness as P.W.2. The second defendant Ganesan examined himself as
D.W.1 and marked Ex.B1 to Ex.B4. On the side of the plaintiff, Ex.A1 to
A5 were marked. The learned trial Judge after consideration of the
evidence on record decreed the suit vide Judgment and decree dated
13.10.2005. Questioning the same, the defendants filed A.S.No.72 of 2006
before the District Judge, Karur. It is seen that in the suit promissory note,
there is a thumb impression attributed to Sadayappa Gounder. The
defendants also filed I.A.No.73 of 2007 before the First Appellate Court for
referring the said thumb impression for the opinion of the forensic expert.
I.A.No.73 of 2007 was also allowed. Challenging the same, the plaintiff
filed a civil revision petition before the High Court. The Civil Revision
Petition filed by the plaintiff was dismissed and a direction to dispose of the
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.269 of 2014
first appeal was also issued. The first Appellate Court by the impugned
Judgment and Decree dated 10.12.2010 allowed the first appeal and set
aside the Judgment and decree passed by the trial Court. 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 finding of the learned Appellate Judge in
reversing the well considered Judgment of the trial Court without
assigning reasons which he ought to have given as a final Court of
fact is sustainable?
2.Have not the learned Appellate Judge committed an error in
dismissing the suit especially when Ex.A.1 was proved by the
plaintiff?
3.Whether failure to refer Ex.A1 for expert opinion and not
following the procedure set out in Order 41 Rule 28 of C.P.C., before
marking Ex.B5 & B6 vitiate the impugned Judgment?”
2.Heard the learned counsel on either side.
3.The first Appellate Court had marked Ex.B5 and Ex.B6 as
additional evidence on the side of the defendants. It is obvious that the
procedure set out in Order 41 Rule 28 was not at all followed. That apart,
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.269 of 2014
when an application for referring the thumb impression for expert opinion
was allowed, the first Appellate Court ought to have taken it to its logical
conclusion. It is true that the High Court has given a direction for disposal
of the appeal before a particular date. But that cannot be a ground for not
referring the thumb impression for expert opinion, when it had already
passed an order in that regard.
4.Therefore, on these twin grounds, I answer the third substantial
question of law in favour of the appellant. The Judgment and decree passed
by the Appellate Court is to be set aside. There is no need to answer the
other two substantial questions of law. The impugned Judgment and decree
is set aside. The second appeal is allowed. The matter is remitted to the file
of the first Appellate Court for fresh disposal of A.S.No.72 of 2006 on
merits and in accordance with law. I make it clear that the contentions of
both the parties are left open. The first Appellate Court shall refer the
disputed thumb impression for expert opinion and take up the matter for
disposal after obtaining the opinion of the forensic expert. Secondly, the
procedure set out in Order 41 Rule 28 of C.P.C., will be followed before
marking Ex.B5 and Ex.B6. Since the second appeal has been remanded,
Registry is directed to refund the entire Court fee to the appellant. Both the
parties shall appear before the Principal District Judge, Karur on
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.269 of 2014
30.06.2021. No costs.
29.04.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Karur.
2.The District Court, Karur.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN, J.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.269 of 2014
rmi
Judgment made in
S.A.(MD)No.269 of 2014
29.04.2021
https://www.mhc.tn.gov.in/judis/
