IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 RSA.No. 423 of 2010() --------------------- AS.20/2008 of PRINCIPAL SUB COURT,ALAPPUZHA OS.588/1996 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANTS ------------------------------ 1. SUDHAMANY, RECORDED AS SARADA, AGED 61 YEARS, W/O.P.K.BALAKRISHNAN, PUTHANKALATHIL, KODEPUNNAMURI, EDATHUA VILLAGE. 2. BHASI, S/O.P.K.BALAKRISHNAN, PUTHANKALATHIL, KODEPUNNAMURI, EDATHUA VILLAGE. 3. JAYARAM, S/O.P.K.BALAKRISHNAN, PUTHANKALATHIL, KODEPUNNAMURI, EDATHUA VILLAGE. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENT(S): PLAINTIFF ------------------------ G.PRASADA CHANDRA PILLAI, AGED 62 YEARS, S/O.LATE GOVINDA KURUP, AMBAKKADU HOUSE, OORUKARY MURI, EDATHUA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ---------------------------------- R.S.A.NO.423 OF 2010 ---------------------------------- Dated this the 17th day of June, 2010 JUDGMENT The defendant, who suffered a decree in O.S.588/1996 before the Additional Munsiff Court, Alappuzha and whose appeal was dismissed by the lower appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The short facts as follows: 3. The suit was instituted on the basis of Ext.A1 promissory note dated 24.8.1993 said to have been executed by defendant, who received Rs.30,000/- for the same. In spite of repeated demands for return of the amount they did not do so and that gave rise to the suit. 4. The original defendant denied the allegations in the plaint. The defendant also disputed the signature on the document and contended that A1 a fabricated and concocted document. He has in fact no acquaintance with the plaintiff and it was pointed out that there is no truth in the allegations in the plaint. Accordingly, he prayed for dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and the documents marked as Exts.A1 to A3 from the side of the plaintiff. Defendant R.S.A.NO.423 OF 2010 2 examined D.W.1 and had Ext.B1 marked. It appears that initially the Munsiff Court dismissed the suit by judgment dated 5.8.2000. Plaintiff took up the matter in appeal as A.S.49/2001. The appellate court set aside the decree of the court below and remanded the case to the trial court for fresh consideration. When the case went back to trial court the plaintiff sought for experts opinion regarding the signature on the disputed document. The experts filed this report which is marked as Ext.X1. Thereafter on an evaluation of the evidence in the case the trial court was inclined to accept the claim and decreed the suit. 6. It may be noticed that during the pendency of the suit the original defendant died and his legal heirs have been brought on the party array. The lower appellate court on an independent consideration of the evidence came to the same conclusion as that of the trial court and confirmed the decree. The said judgment/decrees are assailed in this appeal. 7. The learned counsel appearing for the appellant stressed to that the courts below was not justified in decreeing the suit. Referring to the judgment of the trial court, it is pointed out that a good portion of the judgment is denoted to disbelieving the evidence of the plaintiff and only on insignificant materials the finding went against the defendant. It is pointed out that the appellate court on a different R.S.A.NO.423 OF 2010 3 reasoning held against the defendant. It is also pointed out that the experts report had considerably prejudiced him. Attention was drawn to the fact that experts opinion only says that the author of the disputed signature and admitted signature probably may be the same person. According to the counsel, there is far from saying that it was by the same person. 8. Though the arguments look attractive, on a close scrutiny, it can be found to be without any substance whatsoever. True that the trial court has denoted some paragraphs while examining the evidence of the plaintiff and was skeptical about the various allegations made by him. But however, in the light of the experts opinion namely Ext.X1, the court below took the view that disputed document in fact had been executed by the defendant. May be that there was some reluctance on the part of the trial court but ultimately the trial court was inclined to accept items of evidence and held against the defendants. 9. The appellate court has independently considered the evidence on record. It is found that experts opinion evidenced by Ext.X1 though could not treated as conclusive item of evidence goes long way in favour of the plaintiff. Reliance was placed on evidence of PWs.1 and 2 and along with Exts.A1 to A3, appellate court was inclined to accept the evidence. It is interesting to note that the lower R.S.A.NO.423 OF 2010 4 appellate court was able to find statements in support of the plaintiff from the cross examination of the defendants. It was on the basis of those items of evidence that the appellate court confined the decree. 10. The finding that Ext.A1 was in fact executed by the first defendant is essential a question of fact. May be there are some doubtful aspects , but they by themselves are not sufficient to come to in the conclusion that story set up by the plaintiff is totally false. The court have considered the evidence on record independently and had come to the conclusion that Ext.A1 promissory notice was in fact executed by the defendant. Being a question of fact, since there is nothing to show that the findings are either perverse or unwarranted by the evidence on record no interference is called for. No substantial question of law arises for consideration in this R.S.A. This R.S.A is without merits. Accordingly, it is dismissed in liminie. P.BHAVADASAN, JUDGE cms