In fine, this Court sets aside the judgment and decree of the first Appellate Judge/II Additional District Judge, Chidambaram, in A.S.No.10 of 2015 dated 03.09.2018 and restores the judgment and decree of trial Judge/Subordinate Judge, Chidambaram. in O.S.No.27 of 2008 dated 06.01.2015 in decreeing the suit in favour of appellants and allows the Second Appeal with the costs of appellants throughout. Consequently, connected Miscellaneous Petitions, if any, is closed. Mra    31.01.2022         Internet: Yes Index   : Yes Speaking/Non speaking order To The II Additional District Judge, Chidambaram. The Subordinate Judge, Chidambaram. G.CHANDRASEKHARAN, J., mra Judgment in S.A.No.733 of 2019    31.01.2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgment Reserved on 07.12.2021

Judgment Pronounced on 31.01.2022

CORAM:

THE HONOURABLE MR. JUSTICE G.CHANDRASEKHARAN

S.A.No.733 of 2019

1. Ragina Beevi
2. Sajithabegum
3. Atham Ameer Ali
4. Hakkim Meera … Appellants

..vs..

Arasan              … Respondent

 

This Second Appeal is filed under Section 100 of Civil Procedure

Code against the judgment and decree dated 03.09.2018 made in

A.S.No.10 of 2015 on the file of the learned  II Additional District Judge, Chidambaram, reversing the judgment and decree dated 06.01.2015 made in O.S.No.27 of 2008 on the file of the learned Subordinate Judge, Chidambaram.

For Appellants                           :                 M/s.Sai Sathyajith

For Respondent                           : Mr.A.Muthukumar

JUDGMENT

This Second Appeal is filed against the judgment and decree of learned II Additional District Judge, Chidambaram, in A.S.No.10 of 2015 dated 03.09.2018 reversing the judgment and decree of the learned Subordinate Judge, Chidambaram in O.S.No.27 of 2008 dated 06.01.2015.

2. Appellant filed the suit for recovery of Rs.2,02,391.75p with subsequent interest at 12% p.a from the date of suit till the date of realisation.
3. The case of appellants, in brief, is that on 20.08.2004, respondent borrowed from Jamal Mytheen, husband of first appellant and father of appellants 2 to 4, a sum of Rs.80,000/- for his family expenses. He agreed to pay interest at 12% p.a. To evidence the borrowing, he executed a promissory note, promissing to repay the amount, on demand, together with interest.   Again on 05.09.2004, respondent borrowed a sum of Rs.70,000/- from Jamal Mytheen, agreeing to pay interest at 12% p.a. He had also executed a promissory note to evidence the borrowal of

Rs.70,000/-.  Respondent did not repay the principal or interest.   Jamal

Mytheen died on 12.08.2005.  Appellants are legal heirs of Jamal Mytheen.   They demanded respondent to repay the amount, but he did not repay the amount.   Therefore, the suit was filed for recovery of the money aforesaid.

4. Respondent filed written statement and disputed the claim of appellants. Respondent denied the borrowing of a sum of Rs.80,000/- on 20.08.2004 and execution of a promissory note and also denied the borrowing of Rs.70,000/- on 05.09.2004 and execution of promissory note.  It is specifically denied that respondent had borrowed any amount from Jamal Mytheen and executed promissory note on 20.08.2004 and 05.09.2004.  Jamal Mytheen became a tenant under the father of respondent in respect of family property.  He paid Rs.15,000/- as Bokkiyam amount and was doing leather business.  He vacated the premises in 2000 and handed over possession.  There was no problem between the parties till the death of Jamal Mytheen.   Jamal Mytheen died in 2005 and there ensued litigation between the families of appellants and respondent.  Appellants 3 and 4 filed a suit against respondent and his family members in O.S.No.317 of 2006 in respect of the leased premises.   That suit is still pending.   Due to that enmity, appellants have created suit promissory notes by playing forgery and filed the suit and they are not entitled for any amount and therefore, the suit is liable to be dismissed.
5. Respondent also filed an additional written statement stating that it is alleged in O.S.No.317 of 2006 that Regina Begum is a lunatic. Her name is also given as Regina Begum in S.No.317 of 2006.  The suit filed without seeking permission for representing a lunatic person cannot be maintained.
6. On the basis of the aforesaid pleadings, the trial court framed the following issues:-
   • Whether the suit promissory notes are forged?
   • Whether the plaintiffs are entitled to recover the suit claim from the defendant ?
   • To what relief, if any, the plaintiffs are

entitled ?

7. During the trial, PW.1 to PW.3 were examined and Exs.A1 to A5 were marked on the side of appellants/plaintiffs. 1 and DW.2 were examined and Exs.B1 to B5 were marked on the side of

respondent/defendant.

8. On considering the oral and documentary evidence, learned trial Judge found that there is no material to show that Regina Beevi was a lunatic. Appellants have proved through oral and documentary evidence that respondent borrowed money  as per Exs.A1 and A2

promissory notes and therefore, appellants are entitled to recover the suit claim. Challenging the said judgment, respondent filed appeal in A.S.No.10 of 2015.  Learned first appellate Judge, on re-consideration and re-appreciation of evidence, found that the trial Court has failed to note:-

• the material contradictions in the evidence of plaintiffs’ side witnesses as to the borrowing and execution of promissory notes;
• there is no mention about the borrowal of suit claim and execution of promissory notes in the plaint filed in O.S.No.317 of 2006;

9. It is further observed that respondent has moved an

application before the trial Court for subjecting the disputed signatures in the promissory notes for comparison with his admitted signatures.  That petition was returned by the trial Court as not maintainable at this stage. Respondent filed I.A.No.29 of 2017 before first appellate Court for the same relief, that application was objected by the appellants and therefore, dismissed on 22.06.2017.   Respondent filed CRP (PD) No.2635 of 2017 against that order and CRP (PD) No.2635 of 2017 was dismissed with an observation that when the signature in a document is denied by the defendant, burden of proof lies on the plaintiffs to prove that the signature of the defendant is genuine.   In this view of the matter, the CRP was dismissed and directed the parties to agitate the matter in the appeal to prove Ex.A1 and A2 promissory notes on the basis of oral and documentary evidence. Appellants have not taken any steps for comparing the disputed signatures in the promissory notes with the admitted signatures of respondent.  For all these reasons, learned first appellate Judge found that the appellants have failed to prove the borrowing and execution of promissory notes by the respondent.  In this view of the matter, the learned first appellate Judge reversed the judgment of the trial Court and dismissed the suit by allowing the Appeal.   Therefore, the appellants are before this Court by way of this

Second Appeal.

10. At the time of admission of this Second Appeal, the

following substantial questions of law were framed:-

• Has not the first appellate court erred in holding that the appellants have failed to discharge their initial burden of proving that the signature on the promissory notes is that of the respondent while the appellants have discharged their burden by examining the witnesses?
• Has not the first appellate court erred in failing to take into consideration that the witnesses PW.1 and 2 have deposed as to the material aspects of the case and undoubtedly stated that it was the respondent who had signed the promissory notes Ex.A1 and 2 ?
• Has not the first appellate court erred in unnecessarily referring to the facts of O.S.No.317 of 2006 before the District Munsif, Chidambaram, being a totally different matter irrelevant and unconnected to the present matter and coming to conclusions based on the same ?
• Has not the first appellate court erred incontradicting itself while holding on the one hand that a decision cannot be arrived at without referring the signatures of the respondent to a handwriting expert and on the other hand dismissing the I.A.No.29/2017 filed by the petitioner/respondent for referring his signatures to a handwriting expert on the ground that the petition was filed belatedly with an intention to prolong the appeal at the fag end of the case and that there was no bonafide in the claim of the petitioner/respondent ?

11. Learned counsel for the appellants submitted that first appellate Court has failed to take into consideration that the appellants discharged their initial burden of proof by examining the witnesses of Exs.A1 and A2 promissory notes and they very clearly stated about the borrowal and execution of promissory notes by respondent. The presumption under Section 118 of Negotiable Instruments Act arises in favour of the appellants.  Trial Judge has correctly compared the disputed signatures in Exs.A1 and A2 promissory notes with the admitted signatures found in summons, acknowledgment card and written statement and came to the conclusion that Exs.A1 and A2 promissory notes were executed by respondent.  The facts of the case in O.S.No.317 of 2006 was unnecessarily discussed in this case by the first appellate Court to entertain doubt in the genuineness of suit promissory notes. I.A.No.29 of 2017 filed by the respondent was dismissed on the ground that the petition was filed belatedly to prolong the appeal.  The judgment and decree of first appellate Judge is perverse and not based on proper appreciation of evidence and application of law and therefore, the judgment of first appellate Court has to be set aside and the judgment of trial Court has to be restored.  In support of his submission, learned counsel for the appellants relied on the following judgments.
12. Judgment reported in AIR 1981 SC 363 (Murarilal ..vs.. State of M.P.) is relied for the proposition that Court can compare the disputed signature with admitted signature. It is observed in this

Judgment as follows:-

“The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none, the

Court will have to seek guidance from some authoritative textbook and the Court’s own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh (supra) were cases where the Court itself compared the writings.”

13. He relied the judgment reported in 2012 (3) LW (Crl.) 689 ( R.Arumugham ..vs.. Natesan), with regard to proof of the presumption under Section 118 of Negotiable Instruments Act, wherein this Court held as follows:-

“46. In the light of the above, this Court is of the view that there are no compelling circumstances or evidence let in by the defendant, to shift the burden on the plaintiff to prove consideration.   The observation of the lower Court that the plaintiff ought to have taken steps to send the document for an expert opinion, is erroneous, for the reason that the Court itself is empowered to compare the signature from documents available on record.

47. Per contra, if the defendant had seriously disputed his signature in the suit promissory note, he could have taken steps for an expert opinion, if required. The defendant has not adduced any acceptable evidence to discharge his burden. Considering the principles of law laid down in the above said judgments, this Court is of the view that the lower appellate Court has failed to consider the fundamental principles of law, in adjudicating the issues properly, in view of the statutory presumption under Section 118 of the Negotiable Instruments Act and erred in misdirecting the plaintiff to discharge the burden of proof of payment of consideration. In view of the above, the substantial questions of law framed, are answered in favour of the appellant.”

and

14. AIR 2002 Mad 177 (T.N.Boopathy ..vs.. T.A.Sattu), wherein it is held by this Court as follows:-

“10.  …… Thus from the available evidence as discussed above is has to be found that the plaintiff/respondent has proved the execution of the promissory note by the appellant/defendant. Once the respondent/plaintiff has discharged his burden of proving the same, then it is for the appellant/defendant to prove the non-existence of the consideration found under the promissory note. Once the execution of the promissory note is either admitted or proved, the presumption under Section 118-A of the Negotiable Instrument Act would arise that it is supported by consideration. is is true that such a presumption is rebuttable. The defendant could prove the failure of consideration. Under such a situation if the defendant discharges the initial onus of proof showing that the existence of consideration was improbable or doubtful “or the same was illegal, the onus would shift to the plaintiff, who would be obliged to prove it as a matter of fact. in the instant case the defendant has thoroughly failed to discharge the initial onus of proof by showing the non-existence of the consideration. The plaintiff must be given the benefit of presumption under Section 118(a) of the Negotiable

Instruments Act in his favour.     ……….”

15. In response, learned counsel for the respondent submitted that it is seen from the oral and documentary evidence produced by the appellants that there are lot of contradictions as to the alleged borrowal and execution of promissory notes. 1, son of Jamal Mytheen, has no direct knowledge about the alleged borrowal and execution of promissory notes.  Other witnesses examined in support of execution of promissory notes have materially contradicted in their evidence. However, the trial Court, without considering the material contradictions, decreed the suit.   Respondent had moved an application before the trial Court for comparing his disputed signature with the admitted signature. But the trial Court found that respondent has not moved any application in this regard.  On the other hand, first appellate Court found that respondent had really filed an application for subjecting the disputed signatures in Exs.A1 and A2 promissory notes for handwriting expert’s examination with the admitted signatures of respondent and that petition was not numbered and it was available in the bundle.  Respondent had moved an application in I.A.No.29 of 2017 in A.S.No.10 of  2015 for the same relief and that was dismissed.   The suit in O.S.No.317 of 2006, though filed for different relief and filed after the alleged execution of Exs.A1 and A2 promissory notes, has not reflected the borrowal on the basis of Exs.A1 and A2 promissory notes.  On the other hand, it was averred in that plaint that respondent borrowed Rs.64,000/- from Jamal Mytheen;  when appellants demanded payment, respondent began to give trouble to the appellants.  It is not known what happened to this alleged borrowal of Rs.64,000/- by the respondent.  So far, no suit has been filed for recovering this Rs.64,000/-.   When the borrowal of Rs.64,000/- is mentioned in the plaint filed in O.S.No.317 of 2006, it is expected that the alleged borrowal under Exs.A1 and A2 promissory notes should also have been referred in the plaint filed in O.S.No.317 of 2006.  Failure to mention Exs.A1 and A2 borrowals in O.S.No.317 of 2006 coupled with material contradictions in the evidence of PW.1 and PW.2 created a serious doubt in the case of the appellants.   Therefore, the learned first appellate Judge rightly reversed the judgment of trial Court and dismissed the suit.  Thus, learned counsel for the respondent prayed for confirming the judgment of the first appellate Court and for dismissal of this Second Appeal.
16. Considered the rival submissions and perused the records.
17. It is seen from the case advanced by the parties that appellants claimed that the respondent borrowed Rs.80,000/- on 20.08.2004 and Rs.70,000/- on 05.09.2004 from Jamal Mytheen and executed two promissory notes. First appellant is the wife of Jamal Mytheen and other appellants are their children.  Jamal Mytheen died on 12.08.2005 and therefore, appellants filed the suit.  Before filing the suit, appellants issued notice dated 15.06.2007.   It appears that the notice was not received by the respondent and returned as refused.  Failure to receive the pre-suit notice and give a reply was taken as a point for supporting the case of appellants that the respondent deliberately avoided receiving the notice for the reason that he really borrowed the money.
18. Admittedly, Jamal Mytheen is no more. He is the one, who, knows about the lending and execution of Exs.A1 and A2 promissory notes.   In his absence, appellants examined his son – Hakkim Meera as PW.1.   Though he has filed proof affidavit confirming to the averments made in the plaint, during the course of examination, he admitted that he did not know personally about the lending and execution of promissory notes on 20.08.2004 and 05.09.2004.  2 and PW.3 are the eye witnesses to the borrowal and execution of promissory notes by the respondent. They also attested Exs.A1 and A2 promissory notes. Evidence of PW.2 in chief examination is that respondent borrowed a sum of Rs.80,000/- on 20.08.2004 and Rs.70,000/- on 05.09.2004.  He claims that one Gunasekar had written the promissory notes.  Respondent signed the promissory notes after receiving the money and after him, the attesting witness had signed.  So is the evidence of PW.3 in his chief examination.  Reading of evidences of PW.2 and PW.3 shows that they have fairly supported the borrowal of Rs.80,000/- on 20.08.2004 and Rs.70,000/- on 05.09.2004 by the respondent from Jamal Mytheen and the execution of Exs.A1 and A2 promissory notes.  Of course, there are certain minor contradictions in their evidence, but those contradictions are only natural contradictions and they are not material contradictions. The trial Court, on a comparison of the disputed signatures in Exs.A1 and  A2 promissory notes with the admitted signatures of respondent in summons, acknowledgment card and written statement, came to the conclusion that the signatures in Exs.A1 and A2 promissory notes are that of the respondent.  It appears that learned first appellate Judge carried over by minor contradictions in the evidences of PW.2 and PW.3 for rejecting their evidences and concluding that the borrowal and execution of Exs.A1 and A2 were not proved.
19. Much is said about non-mentioning of the suit borrowal and execution of promissory notes in the plaint filed in O.S.No.317 of 2006. True it is that the suit borrowal and execution of Exs.A1 and A2 promissory notes were not mentioned in O.S.No.317 of 2006. Merely because it was not mentioned, we cannot conclude that the borrowal and execution of Exs.A1 and A2 promissory notes cannot be believed. Expert’s evidence is only to lend support to the oral and documentary evidence produced.   The case cannot be decided merely on the basis of expert’s evidence.  Respondent had taken steps before the trial Court and first appellate Court for sending disputed signatures in Exs.A1 and A2 for handwriting expert’s opinion for comparing it with the admitted signatures.  Trial Court has not numbered the application at all and the application in I.A.No.29 of 2017 filed for this purpose was dismissed by the appellate Court.  In the CRP filed against the dismissal, there is a specific direction in CRP (PD) No.2635 of 2017 that the suit has to be decided on the basis of oral and documentary evidence.
20. One another aspect is that the appellants have taken pre-suit notice to the respondent on 15.06.2007. Respondent has not received the notice.  Why he has not received the notice?  There is no explanation. PW.2 and PW.3 had given satisfactory evidence with regard to the borrowal and execution of Exs.A1 and A2 promissory notes by the respondent.
21. In a judgment reported in (2014) 4 CTC 606 (Chelladurai ..vs.. Velmurugan), this Court after analysing the judgment on the field, narrowed down the following proposition:-

“14. From the above said discussion, the following proposition will emerge:

1. In case, a party, whose signature is disputed, wants his own signature found in the documents that came into existence much later in point of time or after the dispute has arisen and the same is opposed by the party relying on the document containing the disputed signature, it shall be prudent for the court not to make such a comparison.
2. On the other hand, if the person, who relies on the disputed signature, does have no objection for comparing it with, or seeks comparison of the same with, the admitted signature contained in a document even though the same came into existence after the dispute has arisen as he believes that the signatures are not disguised and they are good for comparison, then, the person disputing his signature in the document in question cannot have any valid objection for making such comparison.

• Only when the party who relies on the disputed document expresses an apprehension that the document of recent origin or the farthest document shall not be suitable for making comparison, the admitted or proved contemporary signatures alone should be used for such comparison.”

It is seen from this proposition that “if a person, who relies on the disputed signature, does not have any objection for comparing it with, or seeks comparison of the same with the admitted signatures contained in the documents, which came into existence after the dispute has arisen, the person disputing the signature in the document cannot have any valid objection for making such comparison”.  It is clear from this judgment that even the signature that came into existence subsequent to the disputed signature can be used for comparison, if the person who relied on disputed signature believes that the admitted signature is not disguised and it is good enough for comparison.  From the above judgment,  it is clear that even the subsequent documents can be used for comparison of disputed signature, if it is agreeable to the plaintiff.

22. Trial Court has rightly compared the disputed signature with the admitted signature, appreciated the evidence and decreed the suit. Further, learned first appellate Court focused much on minor contradictions in the evidence of PW.2 and PW.3, placed much importance in not referring about the suit promissory notes in

O.S.No.317 of 2006 and wrongly reversed the finding of the trial Court. This approach, according to this Court, is not correct and in accordance with law.  This Court finds that the appellants have proved the borrowal and execution of Exs.A1 and A2 promissory notes by the respondent.

23. For the reasons stated above, this Court finds that the first appellate Court erred in holding that the appellants failed to discharge the initial burden of proving the signatures in the promissory notes, for substantial question of law No.1; first appellate Court failed to take into consideration the evidence of PW.1 and PW.2 in right perspective for substantial question of law No.2;  first appellate Court placed unwanted reliance on the pleadings in O.S.No.317 of 2006, especially, nonmentioning of Exs.A1 and A2 promissory notes for reaching conclusion, for substantial question of law No.3; Handwriting expert’s opinion is sought only to help the Court.  Either the plaintiff or the defendant can approach the Court for this purpose.  When that be the case after dismissing I.A.No.29 of 2017 filed by the respondent for expert’s opinion, the finding given by the first appellate Court that the appellants have not taken any steps for comparing the disputed signatures of respondent with his admitted signatures by the handwriting expert is nothing but a perverse finding, for substantial question of law No.4.
24. In fine, this Court sets aside the judgment and decree of the first Appellate Judge/II Additional District Judge, Chidambaram, in A.S.No.10 of 2015 dated 03.09.2018 and restores the judgment and decree of trial Judge/Subordinate Judge, Chidambaram. in O.S.No.27 of 2008 dated 06.01.2015 in decreeing the suit in favour of appellants and allows the Second Appeal with the costs of appellants throughout.

Consequently, connected Miscellaneous Petitions, if any, is closed.

Mra    31.01.2022

Internet: Yes

Index   : Yes

Speaking/Non speaking order

To

1. The II Additional District Judge, Chidambaram.
2. The Subordinate Judge, Chidambaram.

G.CHANDRASEKHARAN, J.,

mra

Judgment in

S.A.No.733 of 2019

31.01.2022