Madras High Court
K.Tamilselvi vs C.Mahalingam on 15 June, 2021
S.A.(MD)No.895 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.895 of 2011
1.K.Tamilselvi
2.K.Tamilanban
3.Minor K.Moovendhan ... Appellants
(Being represented by his mother and natural
guardian/first appellant)
Vs.
1.C.Mahalingam
2.The Correspondence,
Islam Primary School,
Valoothoor – 614 201.
3.The Additional Assistant,
Elementary Educational Officer,
(AAEEO), Papanasam Main Road,
Papanasam.
4.The Treasury Officer,
Papanasam,
Thanjavur District.
5.The District Collector,
Collector Office,
Katarny Road,
Thanjavur. ... Respondents
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S.A.(MD)No.895 of 2011
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the decree and judgment passed in A.S.No.61 of 2010 dated 16.12.2010,
on the file of the learned Appellate Tribunal / Additional Sub-Ordinate Court,
Thanjavur, reversing the decree and judgment of the learned District Munsif,
Thiruvaiyaru dated 15.04.2010 made in O.S.No.95 of 2009, dismissing the suit
filed by the respondent / plaintiff.
For Appellants : Mr.S.Palani Velayutham
For R1 : Mr.K.Ramanathan
For R2 : No appearance
For R3 to R5 : Mr.R.Ragavendran,
Government Advocate.
JUDGEMENT
The defendants 1 to 3 in O.S.No.95 of 2009 on the file of the District
Munsif Court, Thiruvaiyaru, are the appellants in this second appeal. The suit
was instituted by the first respondent/Mahalingam for recovering a sum of
Rs.50,000/- with interest from the appellants herein. According to the plaintiff,
he was working as the Headmaster of Shaukathul Islam Primary School,
Valoothoor and that the husband of the first defendant namely., Kamaraj was
working seconday grade assistant in the said school. He had borrowed a sum of
Rs.50,000/- from the plaintiff on 24.01.2009 and executed Ex.A1/promissory
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S.A.(MD)No.895 of 2011
note. The said Kamaraj passed away on 08.02.2009 due to heart attack leaving
behind the appellants herein as his surviving legal heirs. The plaintiff issued
Ex.A3/notice dated 24.04.2009 calling upon the appellants herein to clear the
loan liability. Though the notice was received, there was no reply to the same.
Left with no other option, the plaintiff filed the said suit.
2.The plaintiff examined himself as P.W.1 and the first
attestor/Balasubramanian was examined as P.W.2 while the scribe/Karunakara
Tamilalagan was examined as P.W.3. Exs.A1 to A11 were marked on the
plaintiff's side. The first appellant examined herself as D.W.1 and marked
Ex.B1 on her side.
3.The trial court by judgment and decree dated 15.04.2010 dismissed the
suit. The trial court gave a finding that when according to the plaintiff, he
retired on 31.05.2009, he could not have given a sum of Rs.50,000/- from out
of his retirement benefit amounts. It was further held that on a comparison of
the signature of Kamaraj found in Ex.A1 with his signatures in the admitted
documents namely., acquittance register/Exs.A8 to Ex.A11, there are certain
differences and that therefore, it has not been established that Ex.A1 was
executed by the deceased/Kamaraj. Aggrieved by the same, the plaintiff filed
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S.A.(MD)No.895 of 2011
A.S.No.61 of 2010 before the Additional Sub Court, Thanjavur. Before the
first appellate court, the plaintiff marked Exs.A13 to A18, which are official
proceedings. The plaintiff established that even though he reached the age of
superannuation on 31.10.2008, since the date of superannuation fell in the
middle of the academic year, being a teacher/Headmaster, he was entitled to be
re-employed till the end of the academic year. The first appellate court,
therefore, came to the conclusion that the plaintiff had lent the suit amount
from out of his retirement benefits. The first appellate court also undertook the
task of comparison of the signature in Ex.A1 with the signatures found in
Exs.A8 to A11 and came to the conclusion and it was the deceased/Kamaraj
who executed Ex.A1. In paragraph No.25 of its judgement, the first appellate
court gave solid and convincing reasons for coming to the conclusion that it
was the deceased/Kamaraj, who had executed Ex.A1/promissory note.
4.The first appellate court also noted that the plaintiff apart from
examining himself as P.W.1, had also examined the attestor as well as the scribe
of the document. The first appellate court further gave a finding that
P.W.2/Balasubramanian is figuring as a surety in Ex.B1/loan application. From
this circumstance, the first appellate court came to the conclusion that the
relationship between P.W.2 and that of the family of deceased/Kamaraj was
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S.A.(MD)No.895 of 2011
quite cordial. Taking note of all the relevant circumstances, the first appellate
court came to the conclusion that the plaintiff had established that it was the
deceased/Kamaraj, who executed Ex.A1/promissory note. In that view of the
matter, the judgment and decree passed by the trial court was set aside and the
appeal was allowed and the suit was decreed. The first appellate court directed
the contesting defendants (D1 to D3) to pay the plaintiff a sum of Rs.51,933/-
together with interest at the rate of 12% from the date of plaint till the date of
decree and at the rate of 6% from the date of decree till the date of realization.
Questioning the same, this second appeal has been filed.
5.The second appeal was admitted on the following substantial questions
of law:-
“1.Whether the decree and judgment passed by the lower
appellate court by reversing the decree and judgment of the trial
court contradicting the settled proposition of law is legally
sustainable or not? and
2.Whether the lower appellate court is legally and
factually correct in controverting the legal proposition
enunciated under Section 73 of Evidence Act for scrutinizing the
signature found in Exs.A8 to A11 and consequently the decree
and judgment passed by shifting the burden of proof on the
defendant is legally sustainable or not?”
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S.A.(MD)No.895 of 2011
6.The learned counsel appearing for the appellants reiterated the
contentions set out in the memorandum of grounds and called upon this Court
to answer the substantial questions of law in favour of the appellants and allow
the appeal by setting aside the impugned judgment of the first appellate court.
7.Per contra, the learned counsel for the plaintiff/first respondent
submitted that the impugned judgment and decree passed by the first appellate
court does not call for any interference.
8.I carefully considered the rival contentions and went through the
evidence on record. The only question that arises for my consideration is
whether the jurisdiction under Section 73 of the Evidence Act has been
properly exercised. It is well settled that if the parties do not take any step for
referring the matter for expert opinion, then the Court is having the duty to
undertake a task of comparison by exercising the power under Section 73 of
Evidence Act. A learned Judge of this Court In Thirumuruga Ramalingam
vs. Mohamed Hanifa (2015 SCC OnLine Mad 440) held as follows :
“9.These provisions have been subject matter of several
decisions of this Court. No doubt, a Court does not exceed its
power under section 73, if it compares the disputed signatures
with the admitted signature of the party so as to reach its own
conclusions. Though there is no legal bar to the Judge using his
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S.A.(MD)No.895 of 2011
own eyes, to compare the disputed signatures without the aid of
an handwriting expert, the Judge should hesitate to render his
findings with regard to the identity of the handwriting. The
reason is that such opinion forms the sheet anchor against a
person whose signature is compared. Such venture by the first
appellate Court to compare the signatures by itself does not
mean that the Court had assumed the role of an expert. Section
73 of Evidence Act expressly enables the Court to compare the
disputed signature. Such comparison of signature by an expert is
not done by the parties, may be for the reason of ignorance or
affordability. Then it becomes the duty of the Court to compare
the signature and come to a conclusion. Thus the Court cannot
avoid its responsibility in the absence of an expert opinion. If the
opinion of an expert is available, it would aid the Court in proper
adjudication of the matter. When the same is not available, the
Court will have to seek guidance from its own experience and
knowledge.”
9.In the case on hand, the trial court had rightly undertaken the said task.
But then, it came to the conclusion that the signature found in Ex.A1 differs
from the signature found in acquittance register of the deceased/Kamaraj. The
first appeal is a continuation of original proceedings. The first appellate court
is the last court of fact. It was not only entitled to but was duty bound to
re-appreciate all the question of facts as well as law. Exercising its legitimate
jurisdiction as the appellate court, the first appellate court in the case on hand
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S.A.(MD)No.895 of 2011
had also undertaken the very same task and came to the conclusion that
signature found in Ex.A1 is very much that of the deceased/Kamaraj. I have
carefully gone through the impugned judgement of the first appellate court and
I am satisfied that the first appellate court has not any where gone wrong in
coming to the conclusion that the signature found in Ex.A1 is that of the
deceased/Kamaraj. Therefore, I have no hesitation to answer the aforesaid
substantial questions of law against the appellants. I do not find any ground to
interfere.
10.At this stage, the learned Government Advocate strongly submitted
that the plaintiff needlessly impleaded the Education Department as well as the
District Collector. As a result, the Government had to incur expense. It had to
pay appearance fee to the Government counsel. When it is impleaded as a
party, Government has to enter appearance through Government Pleader. It
cannot remain ex-parte. No relief is claimed against the department. I wanted
to know from the learned counsel appearing for the first respondent as to why
the department was made as a party. The learned counsel insisted that since the
plaintiff wanted to establish certain factual aspects by summoning official
documents, the department had to be impleaded as a defendant. I am not
convinced by the said explanation. To prove that the signature was that of the
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S.A.(MD)No.895 of 2011
deceased/Kamaraj, of course, the acquittance register will have to be marked.
But then, they can very well be summoned even without impleading the
department as a party. In my view, impleading the department was absolutely
unnecessary and vexatious. Therefore, even while sustaining the impugned
judgment of the first appellate court, I direct the first respondent to pay cost of
Rs.5,000/- to respondents 3 to 5.
11.With this direction, the second appeal is dismissed.
15.06.2021
Index : Yes / No
Internet : Yes/ No
ias
Note :In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1.The Additional Subordinate Court,
Thanjavur.
2.The District Munsif Court,
Thiruvaiyaru.
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S.A.(MD)No.895 of 2011
G.R.SWAMINATHAN, J.
ias
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.895 of 2011
15.06.2021
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