Madras High Court
Paulkani vs Thangapandi (Died) on 28 July, 2021
S.A.(MD).No.289 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A. (MD).No.289 of 2014
and
M.P.(MD).No.1 of 2014
Paulkani ... Appellant
Vs
1.Thangapandi (died)
2.T.Apoorvakani
3.T.Maharahakani
4.T.Mallika
5.T.Malathi
6.T.Mahendran
7.T.Sumathi
8.T.Palanivel
9.T.Malaiarasan
10.T.Mandhirakumar ... Respondents
(Memo dated 09.04.2021 filed on 15.04.2021 in USR.No.10046 is
recorded and R2 to R10 are brought on record as LR's of the deceased
sole respondent as per said memo vide court order dated 12.07.2021 made
in S.A.(MD).No.289 of 2014 by GRSJ)
Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code,
against the decree and judgment in A.S.No.65 of 2011 passed by the learned
Additional Judge, Fast Track Court No.II, Thoothukudi, dated 21.09.2011
confirming the decree and judgement in O.S.No.44 of 2009 passed by the
learned District Munsif, Sathankulam dated 29.01.2010.
1/7
https://www.mhc.tn.gov.in/judis/
S.A.(MD).No.289 of 2014
For Appellant : Mr.Ananth C.Rajesh
For Respondents : Mrs.P.Jessi Jeeva priya
JUDGEMENT
The defendant in O.S.No.44 of 2009 on the file of the District Munsif,
Sathankulam, is the appellant in this Second Appeal.
2. The suit was filed by one Thangapandi for recovering a sum of
Rs.68,920/- with interest from the appellant herein. The case of the plaintiff
was that the appellant had borrowed a sum of Rs.60,000/- from him on
02.02.2008 and executed Ex.A1, pro-note. However, the appellant did not
make any payment towards principal or interest. Therefore, the plaintiff
issued suit notice on 13.03.2009 (Ex.A2) calling upon the appellant to clear
the loan liability. The defendant issued Ex.A4 reply notice dated 02.04.2009
controverting the notice averments. Since the demand set out in the suit
notice was not complied with, the aforesaid suit in O.S.No.44 of 2009 was
filed by the plaintiff.
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S.A.(MD).No.289 of 2014
3. The defendant filed her written statement denying the plaint
averments. The defendant categorically stated that the suit pro-note is a rank
forgery. The defendant contended that she was not liable to make any
payment to the plaintiff. According to the defendant, the plaintiff was a
stranger. Based on the rival pleadings, the trial Court framed the necessary
issues.
4. The plaintiff examined himself as P.W.1 and the attestor of the pro-
note was examined himself as P.W.2. Exs.A1 to A5 were marked. On the
side of the defendants, no documentary evidence was filed. The defendant
however examined herself as D.W.1.
5. After considering the evidence on either side, the trial Court by
judgement and decree dated 29.01.2010 decreed the suit as prayed for.
Aggrieved by the same, the defendant filed A.S.No.65 of 2011 before the
Additional District Court/ Fast Track Court, Thoothukudi vide judgment
dated 21.09.2011. The appeal filed by the defendant was dismissed.
Aggrieved by the same, this second appeal came to be filed.
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S.A.(MD).No.289 of 2014
6. The second appeal was admitted on the following substantial
question of law:
“Whether the Courts below are right in
granting the decree in favour of the plaintiff when
the execution of the pro-note itself was denied and
the same was created after knowing the signature
of the defendant through an acknowledgment
card?”
7. During the pendency of this second appeal, the plaintiff
Thangapandi passed away and his legal heirs have been brought on record
as respondents 2 to 10.
8. The learned counsel appearing for the appellant strongly contended
that the defendant clearly denied the execution of the Ex.A1 Pro-note. When
the plaintiff was confronted with the defendant's photograph during cross
examination and asked to identify, he was unable to identify. The learned
counsel for the appellant would submit that from this, one can infer that the
defendant's version that the plaintiff was a stranger was probabilised. He
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S.A.(MD).No.289 of 2014
called upon the Court to answer the substantial question of law in favour of
the appellant and allow this appeal by setting aside the judgment and decree.
9. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment does not call for any interference.
10. I carefully considered the rival contentions and went through the
evidence on record.
11. The suit was anchored on a pro-note. The pro-note has been duly
stamped and it is attested by two witnesses. Ex.A1 pro-note was marked
through the plaintiff who examined himself as P.W.1 and the attestor was
examined as P.W.2. The plaintiff could not shake them during cross
examination. If really the signature found in the pro-note is not that of the
defendant, nothing stopped the defendant from seeking reference to hand
writing expert. No such step was taken by the defendant. As the plaintiff
had examined the attestor, it was for the defendant to prove that the pro-note
is a forged one. The defendant had miserably failed to discharge the onus. It
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S.A.(MD).No.289 of 2014
is true that when the plaintiff was called upon to identify the defendant in a
photograph, the plaintiff could not do so. From that single circumstance, no
adverse inference can be drawn against the plaintiff. The Courts below have
specifically considered the aforesaid contention raised by the learned
counsel for the defendant. The Courts below have come to the concurrent
finding that the suit pro-note was very much executed by the defendant.
Exercising jurisdiction under Section 100 of Civil Procedure Code, I am
not persuaded to take a contra view.
12. The substantial question of law is answered against the appellant.
The second appeal is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
28.07.2021
Index : Yes / No
Internet : Yes/ No
Speaking Order/Non Speaking Order
sbn
To:
1.The District Munsif Court, Sathankulam.
2.The Learned Additional Judge/ Fast Track Court No-II, Thoothukudi.
https://www.mhc.tn.gov.in/judis/
S.A.(MD).No.289 of 2014
G.R.SWAMINATHAN,J.
sbn
S.A. (MD).No.289 of 2014
and
M.P.(MD).No.1 of 2014
28.07.2021
https://www.mhc.tn.gov.in/judis/
