IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RSA.No. 108 of 2010() --------------------- AS.5/2007 of II ADDITIONAL SUB COURT,KOZHIKODE OS.170/2004 of II ADDITIONAL MUNSIFF COURT,KOZHIKODE-II .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------- KUNNATH MUHAMMED, AGED 69 YEARS, S/O.KUNHIMARAKKAR, KOLLAMKANDI PARAMBA, NADUVATTAM, KOZHIKODE DISTRICT. BY ADV. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S RESPONDENT(S)/RESPONDENTS/DEFENDANTS ------------------------- 1. V.P.SUBAIDA, AGED 40 YEARS, D/O.KUNHUTTY, VELIYANKODAN PARAMBA, PURATHUR VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT. 2. UMMAYYA UMMA, AGED 62 YEARS, W/O.KUNHUTTY, VELIYANKODAN PARAMBA, PURATHOOR VILLAGE, TIRUR TALUK, MALAPPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.108 of 2010 -------------------------------------- Dated this the 17th day of February, 2010. JUDGMENT The plaintiff who was defeated in the courts below has preferred this Second Appeal urging by way of substantial questions of law whether courts below were correct in placing reliance on Ext.B1 to which appellant was not a party and whether finding of the courts below as to the due execution of Ext.A1 is legally correct. 2. Respondent No.2 is the mother of respondent No.1. Appellant is the father-in-law of respondent No.1. Case of appellant is that on 22.3.2002 respondent took a loan of Rs.30,000/- from him and jointly executed Ext.A1, demand promissory note on that day. As respondents failed to pay the amount inspite of demand, appellant issued Ext.A2, notice dated 5.2.2004 to which respondents sent Ext.A3, reply denying the transaction and even pleading ignorance about the person mentioned in Ext.A1 (appellant). Appellant gave evidence as PW1 and spoke to his case. Respondent No.1 gave contra evidence as DW1 and proved Ext.B1, CC of the order dated 22.10.2003 of the Family Court in O.P.No.205 of 2003. Trial court after considering the evidence came to the conclusion that version of appellant regarding the loan transaction is not believable, there is no reliable evidence regarding alleged execution of Ext.A1, demand promissory note and consequently dismissed the suit. That RSA No.108/2010 2 judgment and decree were confirmed by the first appellate court and hence the Second Appeal on the above substantial questions of law. Learned counsel for appellant would contend that so far as execution of Ext.A1 there is evidence of PW1 which, there was no reason to reject. It is also the argument of learned counsel that courts below went wrong in relying on Ext.B1 to which appellant was not a party. 3. Evidence of appellant as PW1 is that on 22.3.2002 when the alleged transaction took place respondent No.1 was living in his house (along with her husband, son of the appellant). Respondent No.1 wanted a loan of Rs.30,000/- from the appellant and accordingly the said amount was lent to respondent No.1 who executed a demand promissory notice at the house of the appellant. But it came out in evidence through the deposition of respondent No.1 as DW1 that even from 3.5.2000 onwards respondent No.1 and her husband were living separately on account of matrimonial disputes between them consequent to which respondent No.1 had filed M.C.No.270 of 2003 seeking maintenance for herself and children from her husband (son of the appellant) and O.P.No.205 of 2003 seeking past maintenance. It also came out in evidence that respondent No.1 had filed a case against her husband for offence punishable under Section 498A of the Indian Penal Code. To support the version of respondent No.1/DW1 that herself and husband were living away RSA No.108/2010 3 from 3.5.2000 she produced Ext.B1, copy of order in O.P.No.205 of 2003 where it is held that parties to the said proceeding are living away from 3.5.2003 onwards (as spoken by respondent No.1 as DW1). 4. I have gone through the copy of plaint and deposition of PW1 given to me for perusal by learned counsel for appellant. Though place of transaction and execution of Ext.A1 are not mentioned in the plaint, in the evidence of appellant it is stated in answer to a suggestive question that the transaction took place while respondent No.1 was staying in his house (obviously along with her husband, son of the appellant) but he does not know for what purpose the loan was availed. Assuming that respondent No.1 was staying with the appellant during the relevant time he being the father-in-law of respondent No.1 would not have been unaware of the purpose for which loan was availed by respondent No.1. In that regard appellant pleaded ignorance which itself is doubtful circumstance. Moreover, the version of appellant as PW1 that the transaction took place when respondent No.1 was staying in his house (along with her husband) is found to be incorrect from the evidence of respondent No.1 as DW1. So far as Ext.B1 is concerned even if appellant is not a party to that case, even judgments/orders not inter-parties can be admitted in evidence for certain purpose as provided under Section 13 of the Indian Evidence Act. For that limited purpose Ext.B1 can be looked into. Ext.B1 along RSA No.108/2010 4 with the evidence of DW1 shows that respondent No.1/DW1 and her husband (son of the appellant) were staying away from 3.5.2000 onwards. If that be so version of appellant that the transaction took place and Ext.A1 was executed when respondent No.1 was staying in his house (along with her husband/son of the appellant) has to fall to the ground. Thus the alleged execution of Ext.A1 comes in a very suspicious circumstance. 5. Moreover respondents have denied the execution of Ext.A1. In the box as DW1 respondent No.1 asserted that. Evidence regarding alleged execution comes only from PW1 (appellant). There is no witness to prove the alleged transaction. In such a situation it was possible for the appellant to take Ext.A1 for examination by an expert which was not done. It is seen that after closure of evidence appellant filed application to send Ext.A1 to the expert for examination. Notwithstanding the delay in filing that application learned Munsiff allowed it but appellant failed to take further steps and consequently that application was dismissed. It is in these circumstances courts below found against the case of appellant regarding passing of consideration and due execution of Ext.A1, demand promissory note. Having regard to the facts and circumstances of the case, hearing learned counsel for appellant and perusing judgments under challenge and evidence of appellant as PW1, I am satisfied RSA No.108/2010 5 that no illegality has been committed by the courts below in arriving at the conclusion. I do not find any substantial question of law involved in the Second Appeal requiring decision. Resultantly, Second Appeal is dismissed in limine. THOMAS P.JOSEPH, Judge. cks