IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 RSA.No. 379 of 2009() --------------------- AS.55/2006 of II ADDL. DISTRICT COURT, PALAKKAD OS.2/2004 of MUNSIFF COURT, CHITTUR .................... APPELLANT/APPELLANT/DEFENDANT: ----------------------------- SHEIK MUSTHAFA, S/O. SHAHUL HAMEED, AGED 50 YEARS, ATTAYAMPATHI, MUTHALAMADA AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENT ------------------------- JNANAVEL, S/O. NATARAJA CHETTIAR, AGED 34 YEARS, ATTAYAMPATHY, MUTHALAMADA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.379 OF 2009 --------------------------- DATED THIS THE 18TH DAY OF JUNE, 2009 JUDGMENT Defendant is the appellant. This appeal is directed against the decree and judgment in A.S.No.55/2006 on the file of the District Court, Palakkad which arise from the judgment and decree in O.S.No.2/2004 on the file of the Munsiff's Court, Chittur. The suit is for realisation of Rs.40,000/- . The suit was decreed by the trial court and confirmed in appeal. Hence, the second appeal. 2. According to the plaintiff, defendant borrowed a sum of Rs.40,000/- from the plaintiff and executed a promissory note in his favour in his own handwriting agreeing to repay the same on demand with interest at the rate of 18% per annum. Though a demand was made, since the defendant has not repaid the amount, suit was filed, after issuing a notice. The defendant -2- R.S.A.No.379/2009 denied the transaction. According to him, Ext.A1 is a forged document. 3. Before the trial court the plaintiff and other witness were examined as PWs.1 and 2 and marked Exts.A1 to A11 and the defendant was examined as DW-1 and marked Exts.B1 to B3. The trial court on an appreciation of the oral evidence of PWs.1 and 2 and the documents Exts.A1, A5, A6, A8, A9 and A10, held that the plaintiff has succeeded in proving the execution of Ext.A1pronote. The rival contention of the defendant was also examined in detail. The trial court accepted the oral evidence of PWs.1 and 2 and found that Ext.A1 pronote was executed by the defendant. The versions of PWs.1 and 2 are believed. It held that the defendant failed to rebut the statutory presumptions available in favour of the plaintiff. The trial court further held that the oral evidence of DW-1 alone cannot support the case set up by the defendant and that the uncorroborated oral testimony of DW- 1 and Exts.B1 to B3 are not sufficient to accept the contentions -3- R.S.A.No.379/2009 raised by the defendant. In the said circumstances, the trial court observed that the best evidence which could have been adduced in this case was to obtain the opinion of an expert as to whether Ext.A1 is a forged one or not. In the absence of such evidence the trial court rightly held that the defendant has failed to rebut the presumption available in favour of the plaintiff. The very same contentions are urged by the defendant before the Lower Appellate Court. The Appellate Court appreciated the evidence on record and recorded the same conclusions. The Appellate Court also held that the defendant is in the habit of executing pronotes and that it would appear that he has an uncanny knack of putting different signatures in documents. Several demand promissory notes alleged to have been executed by the defendant were produced and marked in evidence. The findings entered by both the courts below are based on facts, evidence and circumstances. The appeal filed challenging the findings of fact is not sustainable in law. I do not find any reason to interfere in -4- R.S.A.No.379/2009 the appeal filed under Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly it is dismissed. HARUN-UL-RASHID, Judge. kcv.