IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH AUGUST 2011 / 20TH SRAVANA 1933 SA.No. 552 of 1999(G) --------------------- AS.4/1992 of SUB COURT, CHERTHALA OS.457/1990 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANTS/APPELLANTS/PLAINTIFFS: --------------------------------------------------------- 1. KARUNAKARAN, S/O.KOCHUKUTTY, RESIDING AT KIZHAKKEKALATHY, CHARAMANGALAM MURI THANNEERMUKKAM SOUTH VILLAGE, CHERTHALA TALUK 2. BHAIMI, W/O.KARUNAKARAN OF -DO- BY ADV. SRI.J.OM PRAKASH RESPONDENTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------ 1. KERALA STATE REPRESENTED BY THE DISTRICT COLLECTOR ALAPPUZHA 2. DEPUTY TAHSILDAR (RR) CHERTHALA 3. THE VILLAGE OFFICER, THANNEERMUKKAM SOUTH VILLAGE CHERTHALA TALUK 4. SUGUNAN, KOCHUVELIYIL, CHARAMANGALAM MURI THANNEERMUKKOM SOUTH VILLAGE, CHERTHALA TALUK (DIED HIS LRS ARE RESPONDENTS 6 TO 8) 5. KERALA KHADI VYAVASAYA BOARD, REP BY ITS SECRETARY, BOARD OFFICE, VANCHIYOOR, THIRUVANANTHAPURAM 6. OMANA SUGUNAN, E/O.SUGUNAN, KOCHUVELIYIL CHARAMANGALAM MURI, THANNEERMUKKAM SOUTH VILLAGE CHERTHALA TALUK 7. SUNIL KMAR, S/O.SUGUNAN OF -DO- 8. SUNIMOL SUGUNAN, ALIAS THANKACHI, D/O.SUGUNAN -DO- ADV. SRI.JOSE K.KOCHUPAPPU GOVERNMENT PLEADER FOR R1TO3 MR.P K RAVIKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.552 of 1999-G ------------------------------------- Dated this the 11th day of August 2011 Judgment Non-suited by the courts below, the plaintiffs in OS No.457/90 before the Munsiff's Court, Cherthala, have come up in appeal. 2. According to the plaintiffs, plaint Item No.1 belongs to the first plaintiff and Item No.2 belongs to the second plaintiff. The plaintiffs say that they had never availed of any loan from the defendants. They came to learn that under the president-ship of the fourth defendant, a trust was functioning and the trust had taken a loan from the Khadi and Village Industries Board. The plaintiffs understand that the trust committed default in repayment of the loan amount and so revenue recovery proceedings are initiated against the fourth defendant and the second plaintiff. Ext.A1 notice has been served on them. According to the plaintiffs, they have nothing to do with the SA 552/99 2 debts incurred by the trust. Pointing out that the defendants fabricated the documents so as to make the plaintiffs also liable for the loan taken by the trust and also that the revenue recovery proceedings initiated are fraudulent, the suit was laid. 3. Defendants 1 to 3 filed a joint written statement, pointing out that the suit is not maintainable because the second plaintiff is a member of the trust and the trust had availed of loan facilities from the fifth defendant. The second plaintiff was a signatory to several documents on the basis of which the loan was availed of. The repayment has been in default and going by the bye- laws of the trust, all the members are liable. Therefore, the second plaintiff, being a member of the trust, is also liable for the loan amount. 4. The fourth defendant filed a separate written statement, stating that the second plaintiff was a member of the trust and that the trust had taken loan from the Khadi and Village Industries Board. According to the fourth SA 552/99 3 defendant, the second plaintiff is also liable for the loan amount which fell in default. 5. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of documents marked as Exts.A1 to A4 from the side of the plaintiffs and Exts.B1 to B5 from the side of the defendants. No oral evidence was adduced by both sides. 6. On a consideration of the materials before it, the trial court came to the conclusion that the second plaintiff was a member of the trust and that she had signed in the documents on the basis of which the loan was taken by the trust from the fifth defendant. Accordingly, the suit was dismissed. 7. The plaintiffs carried the matter in appeal as AS No.4/92 before the Sub Court, Cherthala. The lower appellate court concurred with the trial court and dismissed the appeal. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : SA 552/99 4 i) whether the courts below were justified in making a comparison of the 2nd plaintiffs admitted signature with the disputed signatures in the absence of expert opinion or other corroborating evidence to prove the signature of the 2nd plaintiff in the disputed documents ? ii) Whether the findings of the courts below that the signatures appearing in Exts.B1 to B4 are the signatures of the second plaintiff are perverse and illegal ? iii)Whether the courts below casted the burden of proof with respect to the membership of the second plaintiff in the Nehru Memorial Development Trust and the signatures appear in the defendants' documents wrongly on the plaintiffs ? iv)Whether a document can be proved without examining anybody when the signature and execution of the same are denied by a party against whom it is to be proved ? 9. The learned counsel for the appellants pointed out that the courts below have erred both in law and on facts in dismissing the suit. It is pointed out that the SA 552/99 5 plaintiffs had marked Exts.A1 to A4 and evidence was closed. No documents or evidence was adduced by the defendants at that point of time. At a later stage, they produced certain documents by filing an application to that effect. Strong objections were filed by the plaintiffs to that application. It is pointed out that the documents could not be marked in evidence and also that unless and until somebody who is conversant with the documents is examined, they may not be taken in evidence. It is also pointed out that if the court was inclined to mark the documents produced by the defendants, an opportunity ought to be given to the plaintiffs to controvert the contents. The denial of such an opportunity has caused considerable prejudice to them. 10. There seems to be considerable force in the above submission. On going through the B diary, it is seen that after the plaintiffs had closed evidence, the case was taken up for hearing. It was thereafter, that the defendants had filed an application to reopen the evidence and sought SA 552/99 6 to produce five documents. In the objection filed, it is specifically averred by the plaintiffs that at that point of time, those documents could not be received. It was also pointed out in the objection that if the court was inclined to accept the documents, the plaintiffs ought to be given an opportunity to adduce oral evidence to controvert the contents. There is nothing to show that any persons conversant with the documents had been examined or that the documents were proved in accordance with law. It is also not seen that the plaintiffs have been given an opportunity to meet the contents of the documents. It is significant to notice that the plaintiffs in the plaint had clearly averred that it was as a result of the clandestine activity of the fourth defendant that the revenue recovery proceedings were initiated against the plaintiffs. There was also an averment in the plaint that the second plaintiff had nothing to do with the trust and that she had not signed any documents on the basis of which the trust might have taken loan from the fifth defendant. It is unfortunate that the SA 552/99 7 trial court did not afford an opportunity to the plaintiffs to adduce evidence to controvert the contents of the documents produced by the defendants. The above points were specifically urged by the plaintiffs, but both the courts below have gone on to compare the signature in the documents produced by the defendants and have come to the conclusion that the signatures have similarity and that would be sufficient. 11. Though the courts below are competent to compare the signatures, it is trite that the same should not be the sole criterion on the basis of which a conclusion is to be drawn. In the case on hand, on going through the records, it is seen that the plaintiffs had taken strong objections to the receipt of Exts.B1 to B5 documents and disputed both its admissibility and their evidentiary value. Even assuming that they were admitted and its acceptance at a later stage cannot be challenged, the fact remains that they are not proved in accordance with law. In spite of the definite stand taken by the plaintiffs that those documents SA 552/99 8 should not be treated as evidence in the light of the fact that no one conversant with them has been examined, the defendants ought to have examined witnesses to prove the documents. At any rate, the plaintiffs ought to have been given an opportunity to adduce further evidence controverting the contents of the documents produced by the defendants, the omission to do so, has resulted in miscarriage of justice especially when the plaintiffs had pointed out that they had nothing to do with the trust. This court is unable to support the judgment and decree of the courts below. In the result, this appeal is allowed. The judgment and decree of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 28.09.2011. They will be at liberty to adduce further evidence, if they so choose. The trial court may make every endeavour to dispose of the suit as SA 552/99 9 expeditiously as possible, at any rate, within six months from the date of appearance of parties before it. Forward a copy of this judgment to the trial court immediately. P.Bhavadasan, Judge sta SA 552/99 10