Rukmani, R. Sivakumar and R. Chenthil Kumar vs T. Painthamil Kumaran alias Tamilan

Honourable Mr. Justice G. Rajasuria

This Appeal Suit is focussed by the defendants 1 to 3 animadverting upon the judgment and decree dated 24.03.2007 made in O.S.No.39 of 2004 on the file of the District Judge, Kanyakumari.

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

Shorn and bereft of details, the germane facts absolutely necessary for the disposal of this Appeal Suit would run thus:

The plaintiff filed the suit as against the defendants, who are the legal heirs of the original borrower for a sum of Rs.5,85,000/- (Rupees Five Lakhs and Eighty Five Thousand only) based on the promissory note executed by the said deceased.

The defendants resisted the suit by filing the written statement, which would pithily and concisely speak to the effect that their propositus did not execute any promissory note and he did not also borrow any money, much less the sum of Rs.5,00,000/- (Rupees Five Lakhs only) from the plaintiff as alleged in the plaint and their propositus had also no intention to defraud any one.

Whereupon the trial Court framed the relevant issues.

During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.9 were marked on the side of the plaintiff. Neither oral nor documentary evidence was let in on the side of the defendants despite opportunity having been given as observed by the trial Court in its judgment.

Ultimately, the trial Court decreed the suit.

Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendants preferred this Appeal Suit on various grounds.

The learned Counsel for the defendants placing reliance on the grounds of appeal, would make his submissions which could be set out thus:

The trial Court failed to take into consideration the fact that the suit promissory note is a forged and fabricated one. No expert opinion was obtained before rendering the judgment in favour of the plaintiff. Due opportunity was not given to the defendants to put forth their case. On behalf of the defendants, the plaintiff''s witnesses were cross-examined; however, the defendants are having the witnesses to be examined on their side and they also want to petition the trial Court to get the disputed signature examined by a hand-writing expert. Accordingly, he would pray for setting aside the judgment and decree of the trial Court and for remitting the matter back to the trial Court for giving due opportunity to adduce evidence and also for getting examined the disputed signature in the suit promissory note, by a hand-writing expert.

On the contrary, the learned Counsel for the plaintiff would put forth and set forth his arguments thusly:

A mere poring over and perusal of the depositions of the plaintiff''s witnesses, would speak volumes to the effect that those witnesses were cross-examined extensively by the learned Counsel for the defendants. However, the defendants failed to enter into the box and adduce evidence. There is nothing wrong on the part of the trial Court in closing the evidence on the side of the defendants and delivering the judgment on merits. Accordingly, he would pray for dismissing this Appeal Suit.

The points for consideration are:

(i) Whether the defendants are entitled to get one more opportunity to adduce evidence before the trial Court? and

(ii) Whether there is any infirmity in the judgment and decree of the trial Court?

Both the points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.

Point Nos.(i) and (ii)

Indubitably and indisputably, the suit is one focussed as against the legal heirs of the deceased promissor who alleged to have executed the promissory note. According to the legal heirs of the deceased promissor, their propositus did not execute any such promissory note and he had no necessity to borrow the said amount. In this case, the expert opinion was not obtained at the instance of either side of the parties. I do not even for a moment think of laying down the law that whenever the defendants do allege forgery, the plaintiff would be duty bound to get such disputed signature verified by a hand-writing expert. It all depends upon the facts and circumstances of each case which the trial Court has to consider. The truth of the matter is that no such petition filed by the defendants.

The circumstances lead the Court to suppose that the plaintiff was satisfied by examining himself and one of the witnesses to the promissory note. Wherefore, the defendants cannot compel the plaintiff to go for expert opinion. Whereas there is nothing to indicate and exemplify as to what prevented the defendants from seeking expert opinion. Over and above that, the trial Judge would observe in the judgment that despite opportunities having been given, the defendants had not chosen to avail the same and adduce evidence on their side. In the normal circumstances, perhaps, I may agree with the trial Court''s view relating to opportunities having been given to the defendants. But, this is a different case.

It is not a case wherein the alleged promissor is before the Court. It is only the hapless and helpless widow as well as the children of the alleged promissor, who are before this Court and they do deserve some sympathy not concerning the merit of their case, but for giving further opportunities to them to adduce evidence. It is also stated by the learned Counsel for the defendants that the promissor committed suicide within three months after the alleged emergence of the suit promissory note.

No doubt, it appears, the learned Counsel for the defendants would make a supine submission to the effect that the deceased promissor left behind some properties and those are now in the hands of the defendants.

In my opinion, the judgment could be rendered by the trial Court could only be interpreted as an exparte one even though reasons are found set out therein. The defendants could have very well petitioned the trial Court under Order 9 Rule 13 of the CPC to get the exparte judgment and decree set aside, but they have not chosen to do so. However, straight away they preferred this appeal which facility is also open to them and accordingly, they are before this Court.

Considering pro et contra of the facts and circumstances including the plea of the defendants and also the fact that inasmuch as the entire evidence constitutes only the depositions of P.W.1 and P.W.2, I am of the view that rebuttable evidence is absolutely necessary on the defendants'' side. Over and above that, the defendants also opt for seeking the help of a hand-writing expert to verify the disputed signature with that of the genuine signatures of the deceased. On balance, I am of the considered view that subject to certain conditions and imposition of costs, the matter could be remitted back to the trial Court after setting aside the judgment and decree of the trial Court. I would also like to give my verdict on the issue of the trial Court having ordered to the effect that the properties referred to in the schedule of the plaint shall be proceeded against towards recovery of the decreetal amount. Section 50 of the CPC will come into operation automatically at the execution stage and it is almost enough for the trial Court to observe that subject to Section 50 of the Code of Civil Procedure, the decree has to be executed instead of deciding at the suit stage itself as to what are all the properties which should be made liable to answer the claim of the plaintiff based on the decree.

Accordingly, this Appeal Suit is allowed, setting aside the judgment and decree of the trial Court and in remitting the matter back to the trial Court, subject to the following conditions:

(i) The defendants shall pay a cost of Rs.5,000/- (Rupees Five Thousand only) to the plaintiff by the first week of December'' 2011;

(ii) Whereupon the defendants should furnish a Notary attested affidavit to the trial Court to the effect that pendente lite, they would not alienate or encumber or in any way modify the structures of the properties as found described in the suit.

(iii) The trial Court shall inform the Sub -Registrar of documents, Registration Department concerned to see that pendente lite, no documents are registered relating to those properties.

(iv) The parties shall appear before the trial Court on 12.12.2011.

(v) The trial Court shall take all endeavours to dispose of the suit within a period of three months from the date of appearance of the parties, i.e., 12.12.2011.

(vi) The defendants are at liberty to file an application seeking the assistance of a hand-writing expert which is expected to be considered by the trial Court as per law.

Consequently, the connected Miscellaneous Petition is dismissed. No costs.