HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.27 of 2004 Date:08-06-2011 Between: Velamuri Kotireddy …Appellant And Pallela Kotireddy …Respondent HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.27 of 2004 JUDGMENT: This second appeal is filed against the decree and judgment dated 19.08.2003 passed by the Senior Civil Judge, Gurazala in A.S.No.32 of 2001 whereby and whereunder the learned Senior Civil Judge reversed the judgment and decree dated 30.03.2001 passed by the Principal Junior Civil Judge, Gurazala in O.S.No.279 of 1998. I have heard the learned counsel appearing on either side. For the sake of convenience, the parties will be referred as ‘the plaintiff and the defendant.’ The plaintiff instituted the suit basing on a promissory note dated 10.04.1996 for recovery of an amount of Rs.20,000/- from the defendant. According to the plaintiff, the defendant borrowed an amount of Rs.20,000/- from him on 10.04.1996 for family expenses and executed the suit promissory note on the same day agreeing to repay the amount borrowed together with interest @ 24% per annum. The defendant resisted the suit contending in his written statement that he did not borrow any amount from the plaintiff and the suit promissory note is a forged and fabricated document and it was brought up on account of the village factions and to harass him. Before the learned trial Court, the plaintiff himself was examined as PW-1 and examined two attestors as PWs.2 and 4 and the scribe as PW-3. He marked Exs.A-1 to A-4. The defendant himself was examined as DW-1 and examined two independent witnesses as DWs.2 and 3 and handwriting expert as DW-4. The learned trial Court mainly adverting to the points namely that as per the evidence of DWs.2 and 3, the defendant was minor on the date of execution of promissory note and that the opinion of DW-4, the handwriting expert revealed that the disputed and admitted signatures compared by him are not identical, dismissed the suit filed by the plaintiff. In the appeal, the learned first appellate Court itself compared the signatures and examined the disputed and admitted signatures on all the documents held that the defendant intentionally changed and in fact whereby the handwriting expert was misled and concluded that the admitted and disputed signatures on the documents sent to him are not similar. The learned first appellate Court also expressed the view that since the attestors and the scribe of the document i.e. PWs.2 to 4 had categorically spoken to the factum of execution of the promissory note and passing of consideration thereunder, the evidence of the handwriting expert being opinion evidence, the learned trial Court ought not to have attached undue importance to the opinion of the handwriting expert. Ultimately the first appellate Court by assigning sufficient reasons for taking a different view set aside the judgment of the learned trial Court and decreed the suit filed by the plaintiff. Feeling aggrieved, the defendant filed the present second appeal. The evidence of PW-1, the plaintiff, PWs.2 and 4, the attestors and PW-3, the scribe of the promissory note clearly indicates that the defendant having borrowed an amount of Rs.20,000/- executed a suit promissory note Ex.A-1 on 10.04.1996. They have clearly stated about the execution of the suit promissory note by the defendant in the presence of the attestors and the scribe and receiving the amount under the said promissory note. The learned first appellate court also took notice of the fact that in the written statement the defendant did not take the plea that he was a minor on the date of the suit promissory note and therefore it does not bind on him. In my view, the learned first appellate Court is right in holding that the defendant is precluded from adducing the evidence which is contrary to the contents of the written statement. In the absence of any specific contention in the written statement that he was a minor on the date of execution of the suit promissory note, he shall not be permitted to give evidence to the effect that he was a minor and the suit promissory note is not binding on him. The learned counsel appearing for the appellant-defendant relied upon a decision in KHAMARUNNISSA @ KHAMMAR BAI v. FAZAL HUSSAIN @ AFSAR HUSSAIN AND ANOTHER[1] wherein the single Judge of this Court held that comparing the admitted signature with the disputed signature and giving a finding is not proper and that Section 73 of the Evidence Act can be resorted only in rarest of rare cases, in the absence of other evidence. The judgment relied upon by the learned counsel for the defendant, in my view is of no help to the defendant. Here is a case wherein the positive evidence of the plaintiff as well as the attestors and the scribe of the suit promissory note about the execution of the said document and passing of the consideration thereunder is available. The learned trial Court did not express any opinion as to the genuineness or otherwise of the signature of the defendant on the suit promissory note Ex.A-1. The learned first appellate Court only by analysing the evidence of the handwriting expert and his observations as to the signatures of the defendant examined the admitted and questioned signatures of the defendant on various documents and came to the conclusion that there was every scope for PW-4 for being misled on account of the defendant subscribing his signatures in various modes on various documents. In any event, when there is positive evidence of the attestors and the scribe of the promissory note about the execution of the promissory note and passing of consideration to the defendant thereunder, the opinion of the expert is of little value. It is not the case of the defendant that the scribe and the attestors deposed against him due to some enmity or otherwise and he did not place any evidence in regard to the said point nor did he even bring any circumstance indicating that they are giving false evidence due to some motive or illwill. Therefore, the learned first appellate court rightly held that the opinion of handwriting expert who was examined as DW-4 is insignificant as the positive evidence of PWs.2 to 4 the attestors and the scribe of the promissory note is available. The learned counsel appearing for the defendant also relied on a decision in AKKARAMANI SIMHACHALAM AND OTHERS v. B. PYDAYYA AND OTHERS[2] wherein another single Judge of this court held that while reversing the judgment of the trial court, the first appellate Court shall meet the reasoning of trial Court and indicate its own reasons for its conclusions and also that the reasons to be stated not only when the decree is set aside or varied and even when it is confirmed. There is no dispute about the law laid down by the learned single Judge about the reappraisal of the evidence by the first appellate Court. But, in the instant case, the learned first appellate Court had assigned elaborate reasons as to why it differed with the findings recorded by the trial Court. The reasons, namely, that the plaintiff is estopped from pleading that he was a minor on the date of the suit promissory note in the absence of any pleading in the written statement and that the evidence of handwriting expert being opinion evidence cannot be given precedence over the evidence of the attestors and the scribe who directly witnessed the execution of the suit promissory note and receiving of consideration by the defendant are as a result of appropriate analysis of evidence on record and also the principles relating to reappraisal of the evidence by the first appellate Court. Further, in the instant case, no substantial question of law is involved for consideration in the second appeal and this Court cannot take a different view to that of the first appellate Court which is final insofar as the findings relating to fact are concerned. This Court even if there is any possibility for taking a different view is not expected to interfere with the findings of the first appellate Court insofar they relate to the fact and also about the appreciation of the evidence. For the foregoing reasons, there is no merit in the second appeal and the same is dismissed. There shall be no order as to costs. ________________ R. KANTH RAO,J Date:08-06-2011 ccm HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.27 of 2004 Date:08-06-2011 [1] (1997(1) ALD 317 [2] 1997 (6) ALT 824