Madras High Court
Habeeb John vs T.P.Abdul Aziz on 2 September, 2021
S.A(MD).No.394 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.394 of 2007
Habeeb John ... Appellant
Vs.
T.P.Abdul Aziz ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment in A.S.No.37 of 2005 on the file of the
Principal Subordinate Judge, Thanjavur dated 11.07.2006 reversing the
judgment and decree in O.S.No.183 of 2004 on the file of the District
Munsif, Thiruvaiyaru dated 22.02.2005.
For Appellant : Mr.V.Chandrasekar
For Respondent : No appearance
JUDGMENT
The defendant in O.S.No.183 of 2004, on the file of District
Munsif Court, Thiruvaiyaru, is the appellant in this Second Appeal. The
respondent herein namely, T.P.Abdul Aziz, filed the said suit for recovery
of a sum of Rs.35,000/- with interest from the appellant.
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S.A(MD).No.394 of 2007
2. The case of the respondent is that he owned the front portion of
the house bearing Door Number-29, (New number 24), Railway Station
Road, Ayyampettai. He entered into an agreement with one Mohammad
Kasim, agreeing to sell the property for a sum of Rs.4,35,000/-. Later, the
appellant herein had stepped into the shoes of the agreement holder and
purchased the property vide sale deed, dated 19.04.2004. The brother of
the plaintiff owned the back portion of the said house. The appellant
herein raised a doubt that concurrence of the plaintiff’s brother namely,
Mohammed Zeyavudeen, must be obtained with regard to the enjoyment
of the common rights to the said house. The appellant withheld a sum of
Rs.35,000/- promising to pay the same upon resolving of the dispute that
involved the brother of the plaintiff. In this regard, a document dated
19.04.2004 (Ex.A1) was executed between the parties. The specific stand
of the plaintiff is that even though, some legal action was anticipated
from his brother Zeyavudeenn, nothing really turned out. Hence, the
plaintiff caused to issue Ex.A2-legal notice dated 15.06.2004 formally
calling upon the appellant to pay the balance amount of Rs.35,000/-. The
appellant received the same and sent a reply, dated 23.06.2004 (Ex.B2)
that since the issue has not been resolved, the question of releasing the
withheld amount did not arise. In these circumstances, the suit came to be
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S.A(MD).No.394 of 2007
filed. The appellant filed written statement controverting the plaint
averments and pointing out that Zeyavudeen had filed O.S.No.141 of
2004, on the file of the District Munsif Court, Thiruvaiyaru seeking the
relief of permanent injunction. Therefore, the question of paying the said
amount did not arise at all. Based on the divergent pleadings, the trial
Court framed the necessary issues. The plaintiff examined himself as
PW1 and marked Exs.A1 to A3. The appellant’s father was examined as
DW1 and Exs.B1 and B2 were marked.
3. After considering the evidence on record, the trial Court by
Judgment and Decree, dated 23.02.2015 dismissed the suit. Aggrieved by
the same, the plaintiff filed A.S.No.37 of 2005 before the Principal
Sub-Court, Thanjavur. The first appellate court, by the impugned
judgment and decree, dated 11.07.2006, set aside the judgment and
decree passed by the trial court and allowed the appeal and decreed the
suit as prayed for. Challenging the same, the Second Appeal came to be
filed.
4. The Second Appeal was admitted on the following substantial
questions of law:
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S.A(MD).No.394 of 2007
“ (i) Whether the judgment and decree of the First Appellate
Court could be sustained on the face of it when Ex.A1 is
misconstrued as a Negotiable Instrument when the recitals of
Exhibit shows that it is a bilateral agreement?
(ii) Whether the judgment and decree of the First Appellate
Court is right in taking into consideration only the nomenclature of
the Ex.A1 without reading the document as a whole?”
5. Though the respondent/plaintiff’s was served and he entered
appearance through counsel, there has been no representation on the side
of the respondent for the last six hearings, ie., from 19.04.2021 itself. It
was made clear that if the respondent did not appear, the appellant will be
set exparte as contemplated under Order XXXXI Rule 17(2) CPC. In
view of the continued non-appearance on the side of the respondent, the
respondent was set exparte and the appeal is being heard on merits.
6. The learned counsel appearing for the appellant pointed out that
the first appellate court, without any basis, held that in a suit for recovery
of money due, the burden initially rests on the plaintiff to prove that the
document was executed by the defendant and on such proving, the
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S.A(MD).No.394 of 2007
plaintiff will be entitled for presumption against the defendant as
provided under Section 118 of the Negotiable Instruments Act. The first
appellate court noted that the case of the plaintiff is based on Ex.A1.
Ex.A1 was not disputed by the defendant. Therefore, the First Appellate
Court held that the Trial Court ought to have drawn a presumption in
favour of the plaintiff. Since the defendant could not establish that the
plaintiff’s brother has caused obstruction or interference with her
peaceful possession and enjoyment, the presumption was held as un-
rebutted. Viewing in that light, the Appellate Court came to the
conclusion that the suit deserved to be decreed.
7. I am at a loss to understand the approach adopted by the first
appellate court. The presumption under Section 118 of the Negotiable
Instruments Act will apply only to negotiable instruments. The
expression “negotiable instrument” has been defined under Section 13 of
the Negotiable Instruments Act, 1881, as a promissory note, bill of
exchange or cheque payable either to order to direct. Promissory note has
been defined in Section 4 as an instrument in writing containing an
unconditional undertaking signed by a neighbour to pay a certain sum of
money only to or to the order of a certain person or to the bearer of the
instrument. Ex.A1 cannot be termed as a promissory note. The appellant
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S.A(MD).No.394 of 2007
had undertaken to pay the withheld amount of Rs.35,000/- upon
resolving of the dispute relating to the enjoyment of the common rights.
Only, if the instrument contains an unconditional undertaking, it can be
called as a promissory note. Ex.A1 is obviously not a promissory note. It
also cannot be called as a bill of exchange or a cheque. The Court below
proceeded on an erroneous premise that a suit for recovery of money was
anchored on a document executed by the defendant, then presumption
under section 118 of the Act will apply. The very assumption on the first
appellate court is faulty. The first appellate court ought to have
considered the issue as to whether Ex.A1 will fall within the definition of
the term “negotiable instruments”. Only after satisfying that Ex.A1 is a
negotiable instrument, presumption under Section 118 could have been
invoked. I have decided that Ex.A1 is not a negotiable instrument.
Therefore, the question of invoking presumption in favour of the plaintiff
will not at all arise. The first appellate Court totally misdirected itself in
law as well as on facts. The substantial questions of law are answered in
favour of the appellant.
8. The appellant had established that she was justified in
withholding the suit amount of Rs.35,000/- Even according to the
plaintiff, he would be entitled to the said amount only if the dispute with
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S.A(MD).No.394 of 2007
his brother regarding the use and enjoyment of the common rights is
resolved. It is not in dispute that the plaintiff’s brother had filed O.S.No.
141 of 2004 seeking the relief of permanent injunction. The very
institution of the suit by the plaintiff’s brother indicates that the issue is
yet to be resolved. Therefore, the first appellate court could not have
reversed the well considered decision of the trial court.
9. In this view of the matter, the judgement passed by the first
appellate court is set aside and the decision of the Trial Court is restored.
The second appeal is allowed. The appellant undertakes that the amount
of Rs.35,000/- (without interest) will be paid to the plaintiff, when the
dispute is finally resolved in her favour as contemplated by EX.A1. This
undertaking is recorded. No costs.
02.09.2021
Index : Yes / No
Internet : Yes/ No
kmm
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.
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S.A(MD).No.394 of 2007
To:
1. The District Munsif, Thiruvaiyaru
2. The Principal Subordinate Judge, Thanjavur.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD).No.394 of 2007
G.R.SWAMINATHAN, J.
kmm
S.A.(MD)No.394 of 2007
02.09.2021
https://www.mhc.tn.gov.in/judis
