IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH MAY 2008 / 5TH JYAISHTA 1930 CRP.No. 365 of 2005(E) ---------------------- AS.160/2000 of II ADDL. DISTRICT COURT, PALAKKAD OS.317/1999 of MUNSIFF COURT, CHITTUR .................... REVN. PETITIONER: RESPONDENT/DEFENDANT. ---------------------------------------------------- KUMARI, W/O.MUKUNDANUNNI, NEAR POLICE STATION, COURT ROAD, CHITTUR, PALAKKAD DIST. BY ADV. SRI.P.R.VENKATESH RESPONDENT: APPELLANT/PLAINTIFF. ----------------------------------------- KRISHNANKUTTY, S/O.NARAYANAN NAIR, KAVARAMED, CHITTUR, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SRI.M.V.BIPIN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/05/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1010/2005 IN C.R.P.NO.365/2005 26.5.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.Sasidharan Nambiar,J. ======================= C.R.P No. 365 of 2005 ======================= Dated this the th 26th day of May, 2008 O R D E R Defendant in O.S.317/1999 on the file of Munsiff Court, Chittur is the petitioner. Plaintiff is the respondent. Respondent instituted the suit for realisation of Rs.15,000/- due under Ext.A1 promissory note dated 15.11.1998 contending that inspite of Ext.A2 notice demanding payment, the amount was not paid. Petitioner a school teacher filed a written statement denying the transaction, execution of the promissory note as well as the signature seen in Ext.A1. Ext.A1 was not sent to an expert. Learned Munsiff on the evidence of respondent as PW1 and the scribe of the promissory note as PW2 and Exts.A1 to A3 and petitioner as DW1 and ExtB1 to B3, dismissed the suit holding that respondent failed to prove the execution of Ext.A1. Respondent challenged the judgment before District Court, Palakkad in CRP 365/2005 2 A.S.160/2000. Learned District Judge on reappreciation of evidence found that though the signature in Ext.A1 was not sent to an expert, comparison of the signature with the admitted signature of the petitioner shows that the signatures are identical. Learned District Judge also found that evidence of PW1 with regard to the execution was corroborated by the evidence of PW2 and therefore there is no reason to disbelieve the evidence of Pws. 1 and 2. It was found that Ext.A1 promissory note was executed by the petitioner and she received the consideration shown therein and granted a decree directing petitioner to pay the amount with interest at 12% from the date of the suit till realisation. It is challenged in this revision filed under section 115 of the Code of Civil Procedure as no second appeal is maintainable as the amount claimed by the plaintiff was less than Rs.25,000/-, in view of Section 102 of Code of Civil Procedure. 2. Learned counsel appearing for petitioner and respondent were heard. 3. The argument of learned counsel appearing CRP 365/2005 3 for petitioner is that in the written statement it was specifically pleaded that she did not borrow any amount and did not execute the promissory note and the signature seen in Ext.A1 is not her signature and inspite of the contentions respondent did not obtain a report from an expert on comparing the signature with the admitted signature. It was argued that the trial court which had the benefit of noting the demeanour of the witnesses did not accept the evidence of PW1 and PW2 and first appellate court for the sole reason that signature of the petitioner is identical to the signature seen in Ext.A1 and accepting the same ignoring that burden is on the respondent to prove the execution. It was argued that though evidence of PW2 was accepted, he is not an attesting witness and is only a scribe who is incompetent to prove the execution and on the facts and circumstance of the case, evidence of PW1 should not have been accepted and the decree granted by the first appellate court is unsustainable. Learned counsel argued that first appellate court was not justified in reversing the judgment of the trial court and CRP 365/2005 4 therefore judgment of the trial court is to be restored. 4. Learned counsel appearing for respondent argued that though Ext.A1 was not sent to an expert, its execution was proved by the evidence of Pws. 1 and 2. It was pointed out that as DW1 petitioner admitted the similarity of the signature seen in Ext.A1 with her signature and DW1 has no explanation as to how respondent could know the nature of the signature of the petitioner and in such circumstance, first appellate court was fully justified in comparing the signature seen in Ext.A1 and reversing the judgment of the trial court. It was also argued that under section 73 of the Evidence Act, first appellate court is competent to compare the signature and decide the dispute. It was also argued that the signature of the husband of petitioner seen in Ext.A1 is admitted and there is no explanation for the signature of the husband of the petitioner in Ext.A1 and in such circumstance, first appellate court rightly reversed the judgment of the trial court, as the trial court did not properly appreciate the CRP 365/2005 5 evidence. It was also argued that as no second appeal is provided as against the judgment, by filing a revision, the revisional powers cannot be equated to the appellate powers and so long as there is no illegality or irregularity and first appellate court rightly exercised the discretion and the powers vested in it, revision is only to be dismissed. 5. True, petitioner in the written statement itself denied the execution of Ext.A1 as well as the transaction and even the signature. The burden is definitely on the respondent to prove the execution. The fact that Ext.A1 was not sent to an expert by itself is not a ground to reject the evidence of Pws. 1 and 2 or to interfere with the decree granted by the first appellate court. First of all, comparison of handwriting has not attained the finality or certainty as in the case of thump impression and at best the report of the expert on comparison of the signature could only be the opinion of the expert. Ultimately the decision has been taken by the court which is fully competent under section 73 of Evidence Act to CRP 365/2005 6 compare the signature seen in Ext.A1 with the admitted signature. As rightly pointed out by the learned counsel appearing for respondent petitioner herself admitted at the time of cross examination, the similarity of the signature seen in Ext.A1 with her signature. She has absolutely no explanation as to how respondent who is not at all familiar with her signature could forge her signature, especially when even according to DW1 there are similarities in the signatures. Added to this, petitioner admitted the signature of her husband in Ext.A1 where he is seen signed as an attesting witness. Though it was argued by the learned counsel appearing for petitioner that husband of the petitioner was moving with respondent and Ext.A3 agreement was set up by respondent in respect of the sale of a motor vehicle owned by the husband of petitioner , there is no such plea in the written statement. It was not stated that signature of the husband of the petitioner was obtained by respondent at any point of time. When these facts are appreciated in the proper perspective, it cannot be said that the view taken CRP 365/2005 7 by the first appellate court is not a reasonable or possible view. In any event, it cannot be said that appreciation of evidence was illegal or irregular or perverse. Exercising the powers of this court under section 115 of the Code of Civil Procedure it is not possible to reappreciate the evidence and substitute the finding of the first appellate court. Therefore the finding arrived at by the first appellate court that execution of the promissory note is proved by the evidence of Pws.1 and 2 and also she executed Ext.A1 after receiving the consideration cannot be interfered. 6. But learned District Judge without taking note of the provision of Section 35 of Code of Civil Procedure, granted interest at the contract rate of 12% per annum even after date of the decree. So long as there is no case for the respondent that it is a commercial transaction, under section 35 of the Code of Civil Procedure, interest from the date of the decree till realisation cannot exceed 6%. Therefore to that extent, the decree granted by the first appellate court is illegal and is to be interfered with. CRP 365/2005 8 The revision is allowed in part. The judgment of the District Court, Palakkad in A.S.160/2000 as against the interest payable subsequent to the date of the decree alone is set aside. It is provided that from the date of the decree, respondent is entitled to get interest only at the rate of 6% per annum till realisation. M.Sasidharan Nambiar Judge tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- CRL.R.P.NO. /08 --------------------- ORDER MARCH,2008