Subbulakshmi vs K.Selvaraj
2021 Latest Caselaw 10993 Mad

                                                                           S.A.(MD)No.450 of 2012

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 29.04.2021

                                                     CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.(MD)No.450 of 2012

                   T.P.A.Alagarsamy (Died)

                   1.Subbulakshmi

                   2.A.Mahendran

                   3.Sundarajan

                   4.Manimegalai                                                    ... Appellants
                                                     -Vs-


                   K.Selvaraj                                                       ...Respondent


                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, against the Judgment and Decree dated 18.12.2008 passed in A.S.No.
                   211 of 2005 on the file of the Principal Subordinate Judge, Dindigul, by
                   reversing the Judgment and decree, dated 28.04.2005 passed in O.S.No.105
                   of 2004 on the file of the District Munsif Court, Nilakkottai.


                                      For Appellants        : Mr.S.Vijaya Shanthi
                                      For Respondent        : Mr.H.Lakshmi Shankar




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


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                                                                            S.A.(MD)No.450 of 2012

                                                     JUDGMENT

The defendant in O.S.No.105 of 2004 on the file of the District

Munsif Court, Nilakkottai is the appellant in this second appeal.

2.The case of the plaintiff Selvaraj is that the defendant Alagarsamy

approached him on 09.12.1999 and borrowed a sum of Rs.30,000/- after

executing the suit promissory note Ex.A1. The defendant had agreed to pay

interest at the rate of 12% per annum. The defendant turned out to be a

defaulter. Therefore, the plaintiff issued Ex.A2-notice dated 07.11.2002

calling upon the defendant to pay the principal amount with interest. The

defendant sent a reply dated 25.11.2002 (Ex.A4). Since the demand set out

in Ex.A2 notice was not complied with, the plaintiff had to file the aforesaid

suit.

3.The defendant admitted the suit transaction. However, he stated

that on the very next day ie., 10.12.1999, he returned the amount together

with interest and the plaintiff had executed the receipt Ex.B1. The receipt

was executed in the presence of D.W.2 and D.W.3. Since the suit liability

had already been discharged, there was no cause of action for filing the suit.

The plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A4.

The defendant examined himself as D.W.1 and the attestors as D.W.2 and https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.450 of 2012

D.W.3. Ex.B1 and Ex.B2 were also marked. The receipt said to have been

issued by the plaintiff was marked as Ex.B1. The reply notice was marked

as Ex.B2. The learned trial Munsif after consideration of the evidence on

record, dismissed the suit by Judgment and decree dated 28.04.2005.

Aggrieved by the same, the plaintiff filed A.S.No.211 of 2005 before the

Principal Sub Court, Dindigul. Before the Appellate Court, the plaintiff

filed I.A.No.70 of 2008 seeking to mark the additional documents. The

Appellate Court allowed the said I.A and marked the additional documents

as Ex.A5 and Ex.A6. The appeal was also allowed by the Judgment and

decree dated 18.12.2008 and the Judgment and decree passed by the trial

Court was set aside. Aggrieved by the same, the defendant filed this second

appeal. The second appeal was admitted on 23.07.2012 on the following

substantial question of law:-

“Whether the Judgment and decree passed by the Lower

Appellate Court is correct in law in allowing the appeal by reversing

the Judgment of the trial Court by picking holes in the deposition of

D.W.1 to D.W.3 when the plaintiff has not disputed the signature in

Ex.B.1?”

During the pendency of the second appeal, the defendant passed away and

his legal heirs have come on record. I carefully considered the rival

contentions and went through the evidence on record.

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S.A.(MD)No.450 of 2012

4.The learned counsel appearing for the appellant submitted that

when the plaintiff issued Ex.A2-notice, the defendant had given a reply

dated 25.11.2002. In the said reply, the defendant had taken a specific stand

that the liability covered under the pro-note had already been discharged.

But the plaint is blissfully silent on the stand taken by the defendant. That

apart, the Appellate Court had allowed the plaintiff to adduce additional

evidence. As per the additional documents, there appear to have been an

understanding between the parties that the plaintiff will be allowed to enjoy

the usufruct of the coconut groove of the defendant and that, when dispute

arose in that regard, the plaintiff gave a police complaint on 25.11.2002.

The learned counsel appearing for the appellant pointed out that in this

regard, there is absolutely no pleading in the plaint. When there is no

pleading in the plaint, the plaintiff cannot be allowed to set up a new case.

5.The learned counsel for the appellant would point that the Appellate

Court could not have marked the additional documents and exhibited them

without giving opportunity to the defendant to cross examine. She would

point out that the procedure set out in Order 41 Rule 28 of C.P.C., was not

followed by the First Appellate Court. She also submitted that Ex.B1-

receipt was actually issued only by the plaintiff and the defendant had https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.450 of 2012

proved its due execution by examining himself and also the attestors of the

document namely D.W.2 and D.W.3. She wanted this Court to answer the

substantial question of law in favour of the appellant and allow this appeal

and restore the Judgment and decree passed by the trial Court.

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

submitted that the impugned Judgment does not call for any interference.

He would point out that the plaintiff had specifically challenged the

genuineness of Ex.B1-receipt and therefore, the very framing of substantial

question of law is incorrect. He pressed for dismissal of the second appeal.

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

evidence on record. I must straight away concur with the submission of the

learned counsel appearing for the appellant that Ex.A5 and A6 could not

have been straight away marked by the Appellate Court after allowing the

petition filed by the plaintiff under Order 41 Rule 28 of C.P.C. Order 41

Rule 28 of C.P.C reads as follows:-

“28.Mode of taking additional evidence- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.”

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S.A.(MD)No.450 of 2012

8.The learned counsel for the respondent would contend that there

was no objection from the side of the defendant in this regard. He would

point out that no counter was filed to I.A.No.70 of 2008 filed by the

plaintiff before the First Appellate Court. I am not able to accept the

submission of the learned counsel for the respondent. If the counsel for the

contesting party makes an endorsement that they have no objection for

exhibiting the documents as additional evidence, then, probably, the

Appellate Court can straight away do so. In this case, there is no such

endorsement. Therefore the Appellate Court was obliged to follow the

procedure set out in Order 41 Rule 28 of C.P.C. Since in this case, the First

Appellate Court has not done so, I have to necessarily exclude Ex.A5 and

Ex.A6 from consideration. That apart, there is another formidable

contention raised by the learned counsel for the appellant. She would state

that by adducing additional evidence, the plaintiff has come out with a new

case altogether. She would point out that when there is no pleading in

support of the additional evidence, the application for additional evidence

ought not to have been entertained at all.

9.The learned counsel appearing for the respondent would rely on

(1994)1 MLJ 401. for the proposition that when the other side is not put to

prejudice even in the absence of pleadings, evidence can be allowed to https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.450 of 2012

adduce. I am not able to accept the aforesaid contentions advanced by the

learned counsel for the respondent. A learned Judge of this Court, vide

Judgment and Decree dated 25.04.2017 in Appeal Suit No.640 of 2016

(A.Meiazhagan Vs. Mangayarkkarasi and others) held that if there is a

marginal variation or deviation, then certainly, even in the absence of

pleadings, evidence can be taken in that regard. This principle will apply

not only for reception of additional evidence, but even in the original trial

also. When the party wants to set up a new case altogether, then, the

aforesaid proposition cannot be called in aid. I sustain the contention of the

learned counsel for the appellant because of absence of pleadings, Ex.A5

and Ex.A6 could not have been received in evidence. Now the only

question that arise for my determination is whether Ex.B1 has been proved

by the defendant.

10.The case of the plaintiff is that on 09.12.1999, the defendant

borrowed a sum of Rs.30,000/- from the plaintiff after executing the suit

promissory note Ex.A1. The defendant admitted the transaction that he

borrowed a sum of Rs.30,000/- on 09.12.1999. He admitted the execution

of the suit promissory note. His defence is that the liability under the suit

promissory note had been discharged. Therefore, the burden lay on the

defendant to prove that the liability has been discharged. The defendant has https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.450 of 2012

projected Ex.B1-receipt said to have been issued by the plaintiff.

The plaintiff had categorically challenged the execution of Ex.B1-receipt.

I must remark that the substantial question of law has been incorrectly

framed. The substantial question of law assumes that the plaintiff had

admitted the execution of Ex.B1-receipt. The plaintiff had not admitted the

execution of Ex.B1-receipt. He had consistently taken the stand that it is a

fabricated document. When that is the stand of the plaintiff, the defendant

must have taken steps to have the same referred for opinion of the hand

writing expert. No such step was taken by the defendant. Even if the

defendant had not taken such step, the trial Court could have compared the

signature appearing in Ex.B1 with the admitted signature of the plaintiff.

The trial Court did posses such power under Section 73 of the Indian

Evidence Act, 1877. The trial Court did not undertake the said task.

Therefore, we are left to determine if by examining himself and the attesting

witnesses, Ex.B1 had been proved by the defendant. I went through the

contents of Ex.B1 and also the testimony of the defendant's witnesses.

Ex.B1 reads that the promissory note executed by Alagarsamy had been

misplaced. It has been further undertaken that the executant of Ex.B1will

not misuse the said pro-note. When it is admitted that pro-note was

executed on 09.12.1999, it is inconceivable that it could have been lost or

gone missing on the very next day. When the borrowal had taken place a https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.450 of 2012

day before, it is again improbable that the loan would have been repaid on

the very next day. The attestors are none other than the son of the defendant

and a close friend of him. D.W.2 had deposed that it was he who wrote

Ex.B1 receipt. D.W.3 on the other hand would state that it was the plaintiff

who wrote the receipt and put his signature. All the three witnesses stated

that a sum of Rs.250/- was paid as interest. Even according to the pro-note,

interest rate was only 12% per annum. If the loan amount had been repaid

on the very next day, interest would be only a sum of Rs.9.50/-. The version

that a sum of Rs.250/- was paid as interest cannot be believed. Therefore, I

hold that Ex.B1 had not at all been proved by the defendant.

11.The learned counsel for the appellant would point out that in

Ex.A4-reply notice, the defendant had spoken about the return of the loan

amount on 10.12.1999 and that the plaintiff has neither filed rejoinder

notice nor denied the same in the plaint. Even though this submission of

the appellant's counsel is factually correct, still that would not lift the

burden from the shoulder of the defendant.

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S.A.(MD)No.450 of 2012

G.R.SWAMINATHAN, J.

rmi

12.Since I have held that the defendant has not proved the

genuineness of the receipt Ex.B1, even though I have faulted the approach

of the first Appellate Court in the matter of reception of the additional

evidence, the Judgment and decree passed by the Appellate Court does not

call for interference. The second appeal is dismissed. No costs.

29.04.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The Principal Subordinate Judge, Dindigul.

2.The District Munsif Court, Nilakkottai.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

Judgment made in S.A.(MD)No.450 of 2012

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