Madras High Court

P.Piarajohn vs P.Ramu on 17 April, 2021

                                                                                      S.A.No.374 of 2021
                                                                                and CMP.No.7064 of 2021



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     Dated : 17.04.2021

                                                         CORAM:

                                    THE HONOURABLE Mr.JUSTICE M.SUNDAR

                                                     S.A.No.374 of 2021
                                                            and
                                                    CMP.No.7064 of 2021

                  P.Piarajohn
                  S/o.Peerjohn Sahib
                                                                                        ... Appellant
                                                            Vs.
                  P.Ramu
                  S/o.Paramasivam
                                                                                      ... Respondent

                            Prayer: Second Appeal has been filed under Section 100 of Code of
                  Civil Procedure, 1908, praying to set aside the Judgment and Decree of the
                  Sub-Judge at Uthangarai dated 30.09.2019 made in AS.No.13 of 2018
                  confirming the Judgement and Decree of the District Munsif-cum-Judicial
                  Magistrate at Pochampalli dated 22.12.2017 made in O.S.No.92 of 2013.

                                    For Appellant      : Mr.A.Manikandan
                                                            ***

                                                     JUDGMENT

Captioned second appeal arises out of a suit on a promissory note.

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2. Mr.A.Manikandan, learned counsel on record for the appellant in

captioned Second Appeal brought to the notice of this Court that there were

five promissory notes in all leading to five suits between same parties. One

Second Appeal being S.A.No.372 of 2021 was dismissed yesterday

(16.04.2021).

3. Learned counsel submits that sole respondent herein filed a suit in

OS.No.92 of 2013 before 'District Munsif-cum-Judicial Magistrate,

Pochampalli' ['trial Court' for brevity]. This suit was resisted on several

pleadings, but after full contest, it was decreed vide judgment and decree

dated 22.12.2017. It is also submitted that this was carried in appeal by way

of a regular First Appeal under Section 96 of 'The Code of Civil Procedure,

1908' [hereinafter 'CPC' for brevity] to the 'Subordinate Judge's Court,

Uthangarai' ['First Appellate Court' for brevity] vide AS.No.13 of 2018,

which also came to be dismissed after full contest on 30.09.2019.

4. Notwithstanding very many grounds raised and notwithstanding two

questions proposed as substantial questions of law in the Memorandum of

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Grounds of Appeal, learned counsel for appellant in arguing for admission

raises a simple point on limitation. Learned counsel submits that suit

promissory note for Rs.20,000/- [Ex.A1] is dated 15.09.2011 and the suit

claim is for Rs.24,847.00/- with future interest and it is a promissory note

payable on demand. It is pointed out that the suit was presented in the trial

Court on 17.12.2013. Limitation was not raised in the trial Court or in the

First Appellate Court but this is not an embargo as Section 3 of The

Limitation Act, 1963 makes it clear that a suit is liable to be dismissed if it is

barred by limitation although limitation has not been set up as a defence.

Therefore, this Court deems it appropriate to look into this aspect. The

relevant article is Article 35 of The Limitation Act, 1963. Limitation is three

years from the date of the promissory note. Date of promissory note is

15.09.2011 and the suit was presented on 17.12.2013 itself i.e., within three

years and therefore, this limitation plea does not carry the appellant any

further in this matter. However, learned counsel submitted that Ex.B4-legal

notice dated 21.02.2011 was issued by a counsel, who deposed as DW2 and

if this exhibit and deposition had been considered, it would have come to

light that the suit is barred by limitation as pronote pertains to a transaction

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of the year 2009.

5. A perusal of the case file, more particularly, judgments of trial Court

and the First Appellate Court make it clear that the burden of song qua the

defendant is denial of execution of pronote, whereas execution of pronote as

well as passing of consideration have been established on the basis of oral

and documentary evidence. This is captured neatly by the First Appellate

Court in paragraph 13, which reads as follows:

'13. It is the case of defendant that he had chip transaction that brother of the plaintiff and the suit promissory notes were given to the brother of the plaintiff and the same was misuse. The defendant in his written statement which is admits the signature in he suit promissory note. So, according to Section 20 of the Negotiation Instruments Act permits the holder in deposed to fill up the instruments. Therefore, the questioning of fabrication and material alteration does not arise. When the signature in the promissory note is admitted by the defendant. The execution of the promissory note is admitted by the deposed of PW1 and PW2.

Hence, the raises a presumption in favour of the plaintiff. In such circumstances, it is the case of the defendant that the suit promissory note was field by the plaintiff according to Section 20 of Negotiable Instruments Act. The authorize the plaintiff to fill up the instruments there on strength Section 20 of Negotiable Instruments Act are

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mentioning does not make any differs. The presumption available in Section 180 and 120. The plaintiff is a holder in deposed on promissory note. Hence, the defendant did not pay the suit amount. All the points arises is answered accordingly. Hence, the appellant is dismissed without costs.'

6. Therefore, his argument that Ex.B4-legal notice in the light of

deposition of its author (counsel), who deposed as DW2 pales into

significance. There is no ground for re-appreciation of evidence and in any

event, going by Article 35 of the Limitation Act, it is three years from the

date written on the promissory note and that cannot be altered much less by

re-appreciation of evidence in a legal drill in Second Appeal under Section

100 CPC.

7. In the light of Kanailal case being Kanailal and others Vs. Ram

Chandra Singh and others reported in (2018) 13 SCC 715 and Kirpa Ram

case being Kirpa Ram Vs. Surendra Deo Gaur reported in 2020 SCC

OnLine SC 935, this Court deems it appropriate to set out that the sole point

for determination that arises in the case on hand is whether a substantial

question of law arises in the captioned Second Appeal.

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8. For examining this point of determination and giving this Court's

decision thereon together with reasons for decision, it is necessary to remind

itself of what the expression 'substantial question of law' occurring in Section

100 of CPC means. The expression 'substantial question of law' occurring in

Section 100 of CPC has not been defined in CPC, but it was described

elucidatively by a Hon'ble Full Bench of this Court in Rimmalapudi Subba

Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others

reported in AIR 1951 Madras 969 (FB)]. This Rimmalapudi Subba Rao's

principle was subsequently set out with affirmation by Hon'ble Supreme

Court in the celebrated judgement i.e., Chunilal V.Mehta and Sons Ltd., Vs.

Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC

1314. To be noted, Chunilal Mehta's case was rendered by a Constitution

Bench of Supreme Court, it is therefore declaration of law, relevant

paragraph is Paragraph No.6 and the same reads as follows:

'6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in

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our opinion, be whether it is of general public importance or whether if directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.'

9. This Rimmalapudi Subba Rao case which elucidatively describes

the expression substantial question of law as affirmed by Hon'ble Supreme

Court in Chunilal's Mehta's case has been neatly and nicely captured in

Santosh Hazari case [Santosh Hazari Vs. Purushottam Tiwari (deceased)

by Lrs., reported in (2001) 3 SCC 179], relevant paragraph is paragraph 12

and the same reads as follows:

'12. The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely.

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However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta [AIR 1928 PC 172 : 55 IA 235] , the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. [AIR 1962 SC 1314 : 1962 Supp (3) SCR 549] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju [ILR 1952 Mad 264 : AIR 1951 Mad 969] :

“[W]hen a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was

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of applying those principles to the particular facts of the case it would not be a substantial question of law.” and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”'

10. This Court has no difficulty in coming to the conclusion that no

substantial question of law arises in the captioned Second Appeal owing to

the facts, trajectory, contentions captured supra as nothing debatable, res

integra or disregarding of settled principles arise. Therefore, this Court

deems it appropriate to dismiss the captioned Second Appeal at the

admission stage by holding that no substantial question of law arises. Owing

to the nature of the matter and the submissions made before this Court, there

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shall be no order as to costs. Consequently, connected Civil Miscellaneous

Petition is also closed.

17.04.2021 Speaking order: Yes/No Index: Yes/No Internet : Yes/No mk

1. The Subordinate Judge, Uthangarai.