IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 25TH NOVEMBER 2011 / 4TH AGRAHAYANA 1933 CRP.No. 304 of 2006() --------------------- AS.295/1997 of III ADDL. DISTRICT COURT,TRIVANDRUM O.S.257/1994 OF SUB COURT, ATTINGAL. .................... REVN. PETITIONER(S): RESPONDENTS/ADDL.PLAINTIFFS. ------------------------------------------------- 1. BHARGAVI AMMA SREEDEVI AMMA, RESIDING AT KOTTAVILA VEEDU, CHILAKKOOR DESOM, VARAKALA VILLAGE. 2. JANARDHANA KURUPPU ANIL KUMAR, RESIDING AT DO. DO. BY ADV. SRI.L.MOHANAN RESPONDENT(S): APPELLANT/DEFENDANT. ----------------------------------- RAMAN KURUPPU GOPINATHAN KURUPPU, RESIDING AT MAVARATHALA VEEDU, CHEMMARUTHY VILLAGE, DO. DESOM. ADV. SRI.S.D.ASOKAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2011, THE COURT ON 25.11.2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS, J. ----------------------------------------------- C.R.P. No.304 of 2006 ----------------------------------------------- Dated 25th November, 2011. O R D E R This Civil Revision Petition, under Section 115 of the Civil Procedure Code is filed by the additional plaintiffs 2 and 3 in O.S.257/1994 on the file of the Sub Court, Attingal. The respondent herein was the defendant in that shit, which was filed by the original plaintiff for realization of money due under a promissory note. The original plaintiff died during the pendency of the suit and his legal heirs were impleaded as additional plaintiffs 2 and 3. 2. The original plaintiff filed the suit for recovery of a sum of Rs.24,550/- on the allegation that the respondent herein, on receiving a sum of Rs.20,000/- from the plaintiff, executed a promissory note on 22.12.1992, agreeing to repay the amount with interest on demand. The promissory note was executed by the defendant and it was attested by witnesses. In spite of demand and even after lawyer's notice, the amount was not repaid. Instead, the respondent caused to issue a reply stating false things. Therefore, the suit was filed. The respondent as defendant contested that neither on 22.12.1992 CRP 304/06 2 nor on any other date he has received any amount or executed any such promissory note. According to him, he has purchased a property belonging to the plaintiff on 21.12.1992. Since the property was not measured on that day, a sum of Rs.4,000/- was reserved from the sale price to be paid on measuring the property and on ascertaining the area. But when measured, there was deficiency in the area and deducting the sale consideration of Rs.2,500/- for that deficient area of 2½ cents, balance Rs.1,500/- when paid, plaintiff refused to accept the same and due to the same, concocting such a promissory note, the suit was filed. 3. In the Sub Court, on the side of the plaintiff, PW1 to PW3 were examined and Exts.A1 to A5 were marked. On the side of the defendant, DW1 was examined and Exts.B1 to B5 were marked. The learned Sub Judge, on considering the evidence, found that Ext.A1 promissory note was a genuine one executed by the defendant and the suit was decreed allowing the additional plaintiffs 2 and 3 to realize a sum of Rs.24,550/- with interest at the rate of 12% per annum on the principal sum CRP 304/06 3 of Rs.20,000/- from the date of the suit till the date of decree and 6% interest thereafter from the defendant and his assets with cost of the suit. 4. Against that judgment and decree, the defendant filed appeal as A.S.295/1997 before the III Additional District Court, Thiruvananthapuram and that appeal was allowed and the judgment and decree of the Sub Court are set aside and the suit was dismissed without costs, on finding that the circumstances available do not satisfactorily establish that the defendant executed Ext.A1 promissory note. Against that judgment and decree, the additional plaintiffs 2 and 3 filed this Civil Revision Petition. 5. Heard the learned counsel for the revision petitioners and the learned counsel for the respondent. 6. At the time of argument, learned counsel for the revision petitioners raised the following contentions : The reasoning of the lower appellate court is on surmises. The statutory presumption attached to promissory note has been given a go-bye by the lower appellate court. The court below CRP 304/06 4 should have noted the fact that the execution of Ext.A1 promissory note was proved beyond any reasonable doubt by examining the attestors to the same as PW2 and PW3, apart from the oral testimony of the original plaintiff as PW1. The court below travelled beyond the pleadings. When the case pleaded by the respondent that the part of the sale consideration for Ext.B1 reserved was found to be incorrect on the basis of Ext.B1, the court below should not have probed the necessity to borrow the amount especially when there is statutory presumption of consideration for Ext.A1. When the court below could not ascertain execution by comparison of signature it should have given an opportunity to the plaintiff instead of non-suiting them. The court below went wrong in considering the extraneous and irrelevant matters. It should have borne in mind that a statutory presumption is there and to rebut the same there is nothing on record on the side of the defendant. Ext.B3 is only to the effect that the defendant is literate. Learned counsel for the respondent supported the judgment and decree of the lower appellate court. CRP 304/06 5 7. In the appellate court judgment, it is stated that the trial court mainly relied on the comparison of the alleged signature of the defendant seen on Ext.A1 promissory note with his admitted signature seen on Ext.B1 document to arrive at a conclusion that Ext.A1 was in fact executed by the defendant. The appellate court compared those signatures and found that similarities, but dissimilarities also are not lacking between the signatures found on these documents and that without expert opinion, it is not possible to arrive at a definite conclusion that the signatures seen on on Ext.A1 were that of the defendant. Another reason stated by the appellate court to disbelieve the case of the plaintiff is that the defendant is a literate person and there was no reason why the promissory note was not written in his handwriting. In a suit based on a promissory note, the burden is on the plaintiff to prove execution of the document and when this initial burden is discharged by the plaintiff, then the presumption under Section 118 of the Negotiable Instruments Act would apply and a presumption of consideration would arise. Then, it is for the defendant to prove CRP 304/06 6 the want of consideration. In the present case, it is an admitted fact that the plaintiff is the maternal uncle of defendant's wife . The original plaintiff was examined as PW1. PW1 deposed that on 22.12.1992, the defendant borrowed Rs.20,000/- from him on executing Ext.A1 promissory note and that the defendant executed that promissory note in the presence of PW2 and PW3, who are the attesting witnesses to that promissory note. PW1 deposed that Ext.A1 was written by the scribe Sivasankaran Nair, who is no more now. 8. PW2 and PW3, who are the attesting witnesses to Ext.A1 also deposed that they saw the defendant borrowing Rs.20,000/- from the plaintiff on executing Ext.A1 promissory note. In cross-examination, PW1 deposed that he sold 20 cents of his property to the defendant as per Ext.B1 sale deed on 21.12.1992, on receiving the full consideration of Rs.20,000/- from him and on the next day the defendant borrowed that Rs.20,000/- from him on executing Ext.A1 promissory note. PW1 denied the case set up by the defendant. Ext.B1 sale deed contains the signature of the defendant also. Ext.A3 is the CRP 304/06 7 postal acknowledgment signed by the defendant, which contains the admitted signature of the defendant. Under Section 73 of the Evidence Act, the court is competent to compare the disputed signature with the admitted signature of a person. But, it is not safe for the court to record its finding, based solely on its comparison alone. The court can compare the signatures in order to appreciate properly, the other evidence produced in court. The learned Sub Judge, on comparing the disputed signatures of the defendant in Ext.A1 promissory note with the admitted signature of the defendant in Ext.B1 sale deed and Ext.A3 postal acknowledgment and on appreciating the evidence of PW1 to PW3 in the light of that comparison, came to the conclusion that Ext.A1 promissory note was executed by the defendant on receiving consideration. But, the appellate court compared only the disputed signature of the defendant in Ext.A1 with the admitted signature of the defendant in Ext.B1 alone. The appellate court did not compare the admitted signature of the defendant in Ext.A3 with the disputed signature in Ext.A1. CRP 304/06 8 9. In the judgment of the Sub Court, it is stated that the original plaintiff filed I.A.2617/95 before that court on 19.12.1995 after closing of his evidence to send Ext.A1 promissory note for the opinion of the expert, which was disposed of by the learned Sub Judge with the observation that the application can be considered, if the circumstances require, after the other pieces of evidence are over. Therefore, it is clear that the plaintiffs took all the possible steps to prove execution of Ext.A1 promissory note by the defendant. It has come out in evidence that Ext.A1 promissory note and Ext.B1 sale deed were prepared by the same scribe. The mere fact that Ext.A1 promissory note was not written in the handwriting of the defendant is not a sufficient ground to disbelieve the case of the plaintiff. As there is nothing to discredit the testimony of PW1 to PW3, the learned Sub Judge is perfectly justified in decreeing the suit. Since the appellate court failed to appreciate the evidence on record properly, this is a fit case to interfere with the judgment and decree of the appellate court. CRP 304/06 9 10. Accordingly, this Civil Revision Petition is allowed and the judgment and decree in A.S.295/1997 on the file of the III Additional District Court, Thiruvananthapuram is set aside and that appeal is dismissed and the judgment and decree in O.S.257/94 on the file of the Sub Court, Attingal is restored. The parties are directed to suffer their respective costs in this Civil Revision Petition. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.