IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 SA.No. 1 of 1997(A) ---------------------------- OS.350/1991 of MUNSIFF MAGISTRATE COURT, PARAVOOR AS.148/1992 of DISTRICT COURT & SESSIONS COURT,KOLLAM .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------ SATHYAVRUTHAN, SON OF MARTHANDAN, CHARUVILA PUTHEN VEEDU, POTHAKKULAM CHERRI, POOTHAKKULAM VILLAGE, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR(QUILON) RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- SAHADEVAN, SON OF KESAVAN KUTTY, SAHADEVA VILASOM, KOTTAKKERATHU VHERRI, KALLUVATHUKKAL VILLAGE. BY ADV. SRI.B.SURESH KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ---------------------------- S.A.No. 1 of 1997 --------------------------------- Dated this the 8th day of February, 2011 JUDGMENT The plaintiff in O.S.No.350/1991 before the Munsiff-Magistrate's Court, Paravoor, who was non suited by both the courts below is the appellant. 2. The plaintiff's case is as follows: The defendant received a sum of Rs.9000/- from the plaintiff on 21.03.1987 and executed Ext.A1 promissory note. Inspite of repeated demands, the defendant was not prepared to pay the amount covered by the promissory note. Hence the suit was filed. 3. Defendant resisted the suit by contending that one Saraswathi had executed a promissory note in favour of the plaintiff. The defendant was only an attestor to the promissory note. As it was not possible to recover the amount from Saraswathi the plaintiff fabricated a promissory note forging the defendant's signature in the promissory note executed by Saraswathy. The defendant is not the author of the signature in Ext.A1 and he is therefore not liable to pay any amount. On these contentions the defendant wanted the suit to be dismissed. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to S.A.No. 1 of 1997 2 3 and documents marked as Exts.A1 to A3 from the side of the plaintiff. DWs 1 to 3 were examined and document was marked as Ext.B1 from the side of the defendant. 5. The trial court on an appreciation of the evidence found that plaintiff has miserably failed to discharge the burden cast upon him to prove the execution of Ext.A1 and the same is not a genuine document and is not supported by consideration. Accordingly, the suit was dismissed. 6. The plaintiff carried the matter in appeal as A.S.No.148/1992 before the District Court, Kollam. The lower appellate court dismissed the appeal. Hence this second appeal. 7. Notice has been issued on the following substantial questions of law: 1. Have not the courts below acted illegally in taking the view that since the signature of the defendant in Exhibit A1 is disputed and since the plaintiff did not call for expert opinion, the suit is liable to be dismissed illegal. 2. Have not the courts below acted illegally in basing the decisions on the probability of the case advanced by the defendant. 3. Have not the courts below acted illegally in rejecting the evidence of PWs 1 to 3. 8. The learned counsel for the appellant pointed out that the courts below were not justified in dismissing the suit as there was S.A.No. 1 of 1997 3 clear evidence of execution of Ext.A1. The learned counsel also pointed out that a minor inconsistencies have been given undue significance in the suit. The learned counsel further pointed out that at any rate he moved C.M.P.No.1/1997 for seeking expert opinion on the signature in Ext.A1. 9. The plaintiff claimed that the defendant received a sum of Rs.9,000/- from the plaintiff on the basis of Ext.A1 promissory note. The defendant denied the execution of the same and pointed out that Ext.A1 is a forged document. According to him, Saraswathy had borrowed the amount from the plaintiff. As security for the same one Sobhana and Thampi agreed to offer their property as security and executed Ext.B1 deed. Since the property was encumbered, plaintiff refused to accept Ext. B1. Then plaintiff insisted that defendant should sign as a witness. He did so. It is the further case of the defendant that the plaintiff had forged and fabricated the promissory note. 10. The lower appellate court found that the case of the defendant is more probable. The defendant's case is that the signature has been forged. The plaintiff did not seek for expert opinion in the courts below. He honestly believed that there is sufficient evidence to prove the execution of the promissory note and receipt of S.A.No. 1 of 1997 4 consideration. The readiness and willingness on the part of the plaintiff to seek expert opinion shows his bonafide. It is felt that it is only proper that the plaintiff should be given an opportunity to get expert opinion regarding the signature in Ext.A1. In the result, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower trial court for fresh consideration in accordance with law and in the light of what has been stated above. Parties shall appear before the trial court on 22.03.2011. Office shall send back the records forthwith. The petition filed before the court seeking to have Ext.A1 send for expert opinion, may be transmitted to the trial court. There will be no order as to costs in the appeal. P.BHAVADASAN, JUDGE. ln