IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 SA.No. 881 of 1999(E) --------------------- AS.247/1994 of SUB COURT,NEYYATTINKARA OS.1300/1990 of PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA .................... APPELLANT(S): APPELLANT/1ST DEFENDANT: ---------------------------------------------------------------------- SIVAN PILLAI MOHANAN, NARAYANANKUZHY VEEDU, PARASSALA DESOM, PARASSAL PUKUTHY. BY ADVS. SRI.SIBY MATHEW, SRI.WILSON URMESE. RESPONDENT(S): RESPONDENT/PLAINTIFF: ------------------------------------------------------------------- MADHAVAN PILLAI MADHUSOODANAN NAIR, HINDU KURUNTHAMKUDI VEEDU, MURIANKARA DESOM, PARASSALA PAKUTHY. BY SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.38/2000 IN SA.NO.881/1999 DISMISSED 20/01/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 881 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of January, 2011. JUDGMENT First defendant in O.S. 1300 of 1990 before the Principal Munsiff's Court, Neyyattinkara is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaint was lodged on the allegation that on the basis of Ext.A1 promissory note the defendants had received a sum of Rs.5000/- on 26.2.1989 and agreed to repay the amount on demand. Since the amount was not paid, the suit was laid. 3. The suit was resisted by the defendants on the plea of discharge. On the basis of the pleadings of the parties issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A2(a). Defendants had D.Ws. 1 to 3 examined. On a consideration of the S.A. 881/1999. 2 materials, the trial court came to the conclusion that the plea of discharge has not been made out and accordingly the suit was decreed. 4. The first defendant carried the matter in appeal as A.S.247 of 1994. The appellate court confirmed the judgment and decree of the trial court. 5. Notice is seen to have been issued on the following questions of law: “(a) Were the courts below right in dismissing I.A. 978 of 1991 for sending the document in dispute to the finger print expert. (b) The appellant having disputed the genuineness of Ext.A1, were not the court below bound to send the same for examination by the finger print expert. © Ext.A1 promissory note having been signed by two persons, were the court below right in decreeing the suit as against the appellant.” 6. At the outset itself it may be noticed that none of the questions of law formulated, on which notice has been issued arise for consideration in this appeal. As rightly S.A. 881/1999. 3 noticed by both the courts below, the plea is one of discharge. The burden is entirely on the defendants to establish the said plea. 7. In the lower appellate court, an attempt was made by the appellant to challenge the validity and genuineness of Ext.A1 promissory note. The lower appellate court rejected the same on the ground that such a contention had not been taken in the written statement. In fact the first defendant alone had appealed before the lower appellate court and he cannot be allowed to contend about the genuineness of the document since his plea was one of discharge. Even though the first defendant seems to have produced a document, that was not received in evidence. Therefore, there was nothing on record to show that the plea of discharge has been established. The courts below have accepted the presumption available under Section 118 of the Negotiable Instruments Act to hold against the first defendant. The finding is essentially based on the evidence on record and it is a finding of fact. S.A. 881/1999. 4 No grounds are made out to interfere with the judgments and decrees of the courts below. There is no merit in the Second Appeal and it is liable to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.