IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 FAO.No. 161 of 2005() --------------------- AS.81/1999 of SUB COURT,NEYYATTINKARA OS.42/1998 of II ADDL.MUNSIFF COURT.,NEYYATTINKARA .................... APPELLANT/RESPONDENT/PLAINTIFF: ------------------------------------------ DATHI, S/O. DASSAN NADAR, KANJAMVILA VEEDU, ARAYOOR P.O., CHENKAL, THIRUVANANTHAPURAM. BY ADV. MR. B.RAGUNATHAN MR. V.V.MATHEW MR. M.SALIM RESPONDENT(S): APPELLANT/DEFENDANT: ----------------------------------- YOBU, S/O. DANIEL, NEELARATHALAVILA VEEDU, ARAYOOR P.O., CHENKAL, REPRESENTED BY THE POWER OF ATTORNEY HOLDER M.JUSTUS, J.L.COTTAGE, DHANUVACHAPURAM, THIRUVANANTHAPURAM. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.161/2005 ORDER ON I.A. 2325 OF 2005 IN F.A.O.161 OF 2005 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 20.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O.No. 161 OF 2005 -------------------------------------------------- Dated this the 20th day of March, 2009 J U D G M E N T Plaintiff in O.S.42 of 1998 on the file of Additional Munsiff Court, Neyyattinkara is the appellant. Defendant is the respondent. Appellant instituted the suit for realisation of Rs.57,675/- inclusive of the interest on Rs.55,000/- due under Ext.A1 promissory note dated 15.10.1997 alleging that respondent received the consideration of Rs.55,000/- and executed Ext.A1 promissory note and did not repay the same on demand. Respondent was not in India as he was working abroad. He filed a written statement through his power of attorney holder contending that he did not execute Ext.A1 promissory note and the signature seen therein is not his signature and it is a forged document. In the written statement itself respondent stated that the court may send the promissory note to an expert to find out whether the signature therein is that of the respondent. In the suit, respondent filed I.A.2943 of 2008, to send Ext.A1 to an expert to find out whether the FAO.161/2005 2 signature seen therein is that of the respondent. That application was also filed through his power of attorney holder. Learned Munsiff dismissed that application accepting the case of the appellant that it was only a tactis to protract the trial and respondent is not available in India and no other signature of the appellant is available in the court. Thereafter on the evidence of PWs 1 and 2 and DW1 the power of attorney holder of the appellant and Exts.A1 to A4 and B1 to B4 learned Munsiff found that Ext.A1 was executed by the respondent after receiving the consideration of Rs.55,000/-. The suit was decreed. Respondent filed A.S.81 of 1999 before Sub Court, Neyyattinkara. In the appeal memorandum itself respondent contended that the trial court should have sent the disputed promissory note to an expert and dismissal of I.A.2943 of 1998 was illegal and therefore the judgment is to be set aside and the promissory note is to be sent to an expert. Learned Sub Judge on hearing the appeal accepted the said contention of the respondent and set aside the judgment and remanded the suit to the trial court with a direction to send Ext.A1 to the expert as sought for in I.A.2943 of 1998. The order of remand is challenged in this appeal. FAO.161/2005 3 2. The records of the courts below show that subsequent to the remand the application filed for sending Ext.A1 promissory note to an expert was allowed and the amount payable to the expert was deposited. Meanwhile in view of the order of stay passed in the appeal further proceedings was stayed. 3. The appeal was admitted on the following substantial question of law. “Whether the criterion adopted by the first appellate court in setting aside the decree and judgment of the trial court is legally sustainable in the light of the evidence adduced by the appellant before the trial court ?” 4. Though notice was sent to the respondent, he did not appear. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that when the evidence establish that respondent had executed Ext.A1 promissory note after receiving the consideration, learned Sub Judge was not justified in remanding the suit without considering the evidence on record. It was argued that apart from the FAO.161/2005 4 evidence of appellant as PW1, PW2 was also examined and there is no rebuttal evidence as the power of attorney holder who was examined as DW1 is incompetent to depose what transpired before the execution of the power of attorney in his favour. The learned counsel relying on the decision of the Apex Court in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd. (AIR 2005 (2) SCC 217) argued that evidence of a power of attorney holder is not a substitute for the evidence of a party and with regard to the personal knowledge of the party, a power of attorney holder cannot give evidence and in the absence of evidence of the defendant first appellate court should not have interfered with the decree passed by the trial court. 6. On hearing the learned counsel and going through the judgment of the learned Sub Judge and the evidence, I find no reason to interfere with the order of remand. In the written statement itself respondent had pleaded that he did not execute Ext.A1 promissory note and the signature seen in Ext.A1 is not his signature and Ext.A1 is a forged document. Though learned counsel argued that that pleading by a power of attorney holder cannot be accepted, I cannot agree with the submission. That FAO.161/2005 5 pleading is by the power of attorney holder for the respondent. When the respondent was permitted to be represented by the power of attorney holder, he is definitely entitled to plead on behalf of the respondent. When the respondent in his written statement unambiguously pleaded that the signature seen in Ext.A1 is not his signature and Ext.A1 is a forged one and I.A.2943 of 1998 was filed to send Ext.A1 to an expert to find whether the signature seen in Ext.A1 is that of the respondent or not, learned Munsiff was not justified in dismissing the application. The reason stated for dismissing the application is also unsustainable. Learned Munsiff has stated that respondent has not produced his signature before the court and as he is in gulf countries, the attempt is to protract the proceedings. Along with the written statement respondent had produced the power of attorney authorising DW1 to represent him. That power of attorney contains the signature of the appellant which was attested by a notary. Therefore learned Munsiff was not justified in saying that there was no signature of the respondent available with the court to be sent to the expert. When the crucial question in the suit is whether Ext.A1 promissory note was FAO.161/2005 6 executed by the respondent or not, the question whether the signature seen in Ext.A1 is that of respondent or not, is very relevant. In such circumstances the Munsiff should have sent the promissory note to an expert. Therefore the first appellate court was fully justified in remanding the suit to the trial court for getting a report of an expert after comparing the signature in Ext.A1 with the admitted signature of the respondent. I find no reason to interfere with the order of remand. Appeal is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb