IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 RSA.No. 1204 of 2008() ---------------------- AS.179/2004 of II ADDL. DISTRICT COURT, PALAKKAD OS.290/2003 of MUNSIFF's COURT, CHITTUR .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------- K. MUSHAFA, AGED 47, ATTAYAMPATHY TALUK, GOVINDAPURAM, MUTHALAMADA, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.R.VENKETESH RESPONDENTS/ RESPONDENTS/ PLAINTIFF:- ------------------------------------------------ JHNANASUNDARI, W/O. RAJ KOUNDER, ATTAYAMPATHY, GOVINDAPURAM, MUTHALAMADA, CHITTUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 1204 of 2008 ========================= Dated this the 11th day of December, 2008. JUDGMENT The defendant in O.S. No. 290 of 2003 on the file of the Munsiff's Court, Chittur is the appellant in this Second Appeal. The said suit was filed for realisation of a sum of Rs.25030/- being the principal amount of Rs.20,000/- and the interest thereon due under Ext.A1 promissory note said to have been executed by the defendant on 01.01.2002 while borrowing the principal amount of Rs.20,000/- on 10.09.2000 from Jnanasundari, the plaintiff. The defendant had allegedly borrowed another amount of Rs.20,000/- from the Velathal, the mother of the plaintiff under a different promissory note. 2. The suit was resisted by the appellant contending inter alia that while borrowing Rs.20,000/- from the plaintiff's mother, he was asked to execute two promissory notes and he had done so, that he did not get an opportunity to see the promissory note while sending the reply to the lawyer notice sent in this case, that it was only when he subsequently inspected the promissory note that he came to know that Ext.A1 was not the promissory note which he had executed R.S.A. No. 1204/2008 : 2: while borrowing Rs.20,000/- from the plaintiff's mother and that his signature in Ext.A1 promissory note was forged. 3. On the side of the plaintiff, she examined three witnesses as PWs 1 to 3 of whom PW1 is the plaintiff and PW3 is a person who is familiar with the handwriting and signature of the defendant/appellant. The trial court came to the conclusion that the execution of Ext.A1 promissory note was validly proved by PWs 1 and 3 that the defendant/appellant has been signing differently in many of the documents and that the only possible inference which could be drawn from the conduct of the defendant was that he had put a different signature in Ext.A1 promissory note either to deceive the plaintiff or to raise false contentions. At no point of time, when the matter was pending before the trial court, had the appellant filed any application for sending Ext.A1 promissory note to the handwriting expert for proving the handwriting and signature. Even after PW3 deposed before the court that both the handwritings as well as the signature in Ext.A1 are that of the defendant, the appellant did not apply before the trial court for expert opinion. The suit was decreed as prayed for on R.S.A. No. 1204/2008 : 3: 07.02.2004. Aggrieved by the decree passed by the trial court, the appellant filed A.S. No. 179 of 2004 before the District Court, Palakkad. The said appeal was filed on 26.07.2004. The appeal was heard on 09.07.2007. On that day, the appellant filed I.A. No. 1022 of 2007 to send Ext.A1 promissory note to the handwriting expert. That application was dismissed as belated and the appeal also was thereafter dismissed on merits. Hence this Second Appeal. 4. The following are the questions of law formulated in the memorandum of Second Appeal:- a. Did not the court below commit a serious error in dismissing I.A. 1022 of 2007 without considering the application on merits. b. After having found fault with the plaintiff for not sending the disputed signature to the handwriting expert did not the court below commit a serious error in taking up the role of a handwriting expert for verifying the disputed writing and signature with many other disputed signature. c. Did not the court below commit an error in taking upon itself the role of a handwriting expert, violating the mandate regarding the limited role and jurisdiction prescribed under Section 73 of the Evidence Act? 5. The learned counsel appearing for the appellant made the following submissions before me in support of the Second Appeal:- R.S.A. No. 1204/2008 : 4: This is a case in which the appellant had specifically denied his signature in Ext.A1 promissory note. In spite of that, there was no attempt made by the plaintiff to send Ext.A1 promissory note for expert opinion. PW3 is a person who had filed a suit against the appellant and was therefore interested in deposing against the appellant. The appeal was filed on 26.07.2004. The lower appellate court while granting a stay of execution of the trial court decree, had insisted upon production of bank guarantee for the entire decree amount. That order was challenged by the appellant by filing a writ petition before this Court. The writ petition was disposed of only in June, 2007 and after getting the certified copy of the judgment, the appellant got ready for hearing of the appeal before the lower appellate court on 09.07.2007. On that day itself, he had filed I.A. No. 1022 of 2007. Hence the lower appellate court should have either remanded the case to the trial court or should have called for the expert opinion regarding the signature and handwriting on Ext.A1 promissory note. R.S.A. No. 1204/2008 : 5: 6. I am afraid that I cannot agree with the above submissions. This is a case in which the plaintiff had discharged the initial burden on her by proving the handwriting and signature in Ext.A1 as that of the appellant/defendant. PW3 who is familiar with the handwriting and signature of the appellant, was also examined by the plaintiff. Hence the burden had shifted to the appellant to rebut the above evidence. He did not apply for sending disputed document to the handwriting expert for an expert opinion. Even when he filed the appeal on 26.07.2004, he did not seek an expert opinion on Ext.A1. It was only when the appeal was actually taken up for hearing three years after the filing of the appeal that he filed an application to send the disputed promissory note to the handwriting expert for opinion. Going by the findings of the trial court which had the unique advantage of seeing the witnesses and assessing their credibility, the appellant has been deliberately putting his signatures differently and Ext.A1 is one such instance. Hence, even if the document is sent to the handwriting expert, the opinion thereon cannot be conclusive. Even otherwise, the opinion of R.S.A. No. 1204/2008 : 6: the handwriting expert, unlike that of a fingerprint expert, can never be conclusive. Hence, I see no ground to interfere with the conclusions reached by the courts below. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration. The fact that a Second Appeal is pending against the decree granted in favour of the plaintiff's mother is not a ground for admitting this Second Appeal which is accordingly dismissed in limine. Dated this the 11th day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1204/2008 : 7: R.S.A. No. 1204/2008 : 8: