IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 AS.No. 130 of 1996() ----------------------------- OS.157/1993 of SUB COURT, OTTAPPALAM .................... APPELLANT - PLAINTIFF: --------------------------------- P.A. ABU, S/O. PATHAYATHINGAL ALI, P.O. VENGASSERI, VIA OTTAPALAM, PALGHAT DISTRICT. BY ADV. SMT.PREETHY KARUNAKARAN SRI.C.RAMAN SMT.MINI.M.R. RESPONDENTS - DEFENDANT: ----------------------------------------- HAMSA ALIAS MANU, S/O. PARAKKADAN HASSAN, OTTAPPALAM ROAD, P.O. CHERPLACHERY, OTTAPPALAM TALUK, PALGHAT DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.P.RAMACHANDRAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = A.S. NO.130 OF 1996 AND CROSS OBJECTION = = = = = = = = = = = = = = = = = = = Dated this the 20th day of February, 2008 J U D G M E N T -------------------- Plaintiff in O.S. No.157 of 1993 on the file of the Subordinate Judge's Court, Ottapalam, is the appellant. The memorandum of Cross Objection is filed by the defendant in the suit. Appellant filed the suit against the respondent for realisation of money. The trial court found that the respondent borrowed money under pro-note, but dismissed the suit on the ground that there was material alteration in the pro-note. The appellant had filed the appeal challenging the decree. The respondent had filed the Cross Objection challenging the finding of the court below that he borrowed Rs.45,000/- from the appellant. 2. It was averred that the respondent availed a loan of Rs.15,000/- from the appellant on 25.1.1993 for the purpose of business. Thereafter an amount of Rs.30,000/- was also borrowed by the respondent by way of cheque on A.S. NO.130 OF 1996 & CROSS OBJECTION -: 2 :- 22.2.1993 and the same was encashed on the same day. Respondent executed a pro-note on 22.3.1993 agreeing to repay the entire amount of Rs.45,000/- with interest. He did not repay any amount to the appellant though the appellant made several demands. Hence the suit. 3. The respondent filed the written statement denying the execution of the pro-note. It was specifically contended that the appellant forged a document for the purpose of creating the pro-note. It was contended that one Mr.Murali Manohar, who was known to appellant, informed the respondent that Murali Manohar along with one Gopalakrishnan and Ali got a group Visa for 72 persons from a Manpower Recruiting Agency at Bombay. It was further contended that Murali Manohar informed the respondent that if there is anybody prepared to pay Rs.45,000/- Visa will be provided to him. Appellant's son Basheer wanted to go to Gulf countries. So appellant paid Rs.15,000/- directly to Murali Manohar and subsequently he issued a cheque for Rs.30,000/- to the respondent. The respondent encashed the cheque and gave that money also to Murali Manohar. But appellant's son could not go to Gulf. Murali Manohar agreed A.S. NO.130 OF 1996 & CROSS OBJECTION -: 3 :- to provide another Visa, for which another Rs.10,000/- was also paid. But that also did not materialise. Appellant approached the respondent and demanded the amount back which the respondent had refused. So the appellant forged a document and filed the suit. He prayed for dismissal of the suit. 4. Trial court found that the respondent borrowed a sum of Rs.45,000/- from the appellant. It also found that Exhibit A1 pro-note was signed by the respondent and the same was supported by consideration. Trial court further found that there was material alteration in the pro-note which rendered it void and dismissed the suit. Challenging that decree and judgment, appellant had filed this appeal. Respondent had filed a Cross Objection challenging the finding of the trial court that Exhibit A1 was executed by the respondent and the same was supported by consideration. 5. Learned counsel appearing for the appellant has argued that the respondent had no case that he executed a pro-note but subsequently materially altered the same. It is argued that the definite case of the respondent was that Exhibit A1 pro-note was a forged one. It is argued that A.S. NO.130 OF 1996 & CROSS OBJECTION -: 4 :- respondent had in unequivocal terms admitted receipt of Rs.45,000/-. It is argued that the court below compared the admitted signature of the respondent with disputed signature and came to a conclusion that Exhibit A1 pro-note was executed by the respondent and further found that the same was supported by consideration. 6. I shall first consider whether the finding of the court below that the pro-note was materially altered is correct. The definite case put forward by the respondent was that the pro- note was a forged one. He had no case that he executed a pro-note, but subsequently material alteration was effected in the same. It is true that there was correction in Exhibit A1 pro-note. For the first time when the appellant was examined as P.W.1, the defence of material alteration was put to him by the Advocate for the respondent. P.W.1 was asked whether there was any correction in the pro-note. He had admitted that the date was originally written as 29.6.1993 but that was corrected as 22.2.1993. It is argued by the counsel for the appellant that normally correction of date is made to bring the pro-note within the period of limitation. It is argued that going by the original date the pro-note was executed in A.S. NO.130 OF 1996 & CROSS OBJECTION -: 5 :- the month of June which was altered to make it appear that it was executed during February, that is, four months prior to the date of execution. The respondent had no case that there was material alteration. As I have already stated in view of the pleadings of the respondent he cannot be allowed to raise the contention of material alteration. His defence was total denial. According to the respondent Exhibit A1 is a forged document. So the appellant cannot be non-suited on the ground that he did not plead and prove that the original date was written as 29.6.1993 and it was corrected as 22.2.1993 at the time of execution of the pro-note itself. So the dismissal of the suit on the ground that there was material alteration is unsustainable and liable to be set aside. 7. The next question arising for consideration is whether the appellant is entitled to get a decree on the basis of the pro-note. As I have already stated the respondent has filed a Cross Objection challenging the finding of the court below that Exhibit A1 was executed by the respondent and supported by consideration. Even without filing a Cross Objection the respondent is entitled to argue that that finding also ought to have been in his favour. When respondent was A.S. NO.130 OF 1996 & CROSS OBJECTION -: 6 :- in box some of his signatures found in the written statement, affidavit, vakalath, etc., were shown to him. He denied those signatures. In fact the trial court also took note of that fact. The trial court itself found that only a portion of the signatures in Exhibits A1 and B1 are similar and rest of the signatures are dissimilar. In spite of that observation, the court below found that Exhibit A1 was executed by the respondent. The finding of the court below that Exhibit A1 was executed by the respondent relying on the comparison made on the signatures is not just and proper. Though there is nothing wrong in a court comparing signatures, granting a decree based on signatures which varies from document to document is not safe. So I am of the view that the finding of the court below that Exhibit A1 was executed by the respondent is unsustainable and liable to be set aside. Considering all aspects of the matter, I am of the view that one more opportunity can be granted to the parties to adduce evidence to prove their contention. For that purpose, the case has to go back. 8. In the result, the appeal and cross objection are allowed. The decree and judgment passed by the learned A.S. NO.130 OF 1996 & CROSS OBJECTION -: 7 :- Sub Judge in O.S. No.157 of 1993 are hereby set aside. Suit is remanded to the trial court for fresh disposal in accordance with law after giving both sides opportunity to adduce evidence. The court below shall dispose of the suit as expeditiously as possible, at any rate, within six months from the date appearance of the parties before it. 9. Parties are directed to appear before the court below on 28.3.2008. 10. Office is directed to refund one half of the court fee paid on the memorandum of appeal as well as in the memorandum of Cross Objection to the respective counsel. Civil Miscellaneous Petition No.883 of 1996 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== A.S. NO. 130 OF 1996 AND CROSS OBJECTION ===================== J U D G M E N T ------------------------------------------- 20TH FEBRUARY, 2008