IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 AS.No. 181 of 2001(A) --------------------- OS.264/1995 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT(S): DEFENDANTS 2 & 3: ------------------------------------------------------- 1. SUBHADRA ANTHARJANAM, W/O. S.VISHNU NAMBOOTHIRI, KIZHAKILLOM VEETTIL, KUDAMALOR KARA, AYMANAM VILLAGE, KOTTAYAM TALUK. 2. SUBRAMANIYAN NAMBOOTHIRI, S/O. VISHNU NAMBOOTHIRI, KIZHAKILOM VEETTIL, KUDAMALOOR KARA, AYMANAM VILLAGE, KOTTAYAM TALUK. BY ADV. SRI.RAJIT RESPONDENT(S): PLAINTIFF:4TH DEFENDANT: ---------------------------------------------------------------------- 1. P.I.CHERIAN, S/O.CHERIAN ITTY IYPE, KOSAMATTOM PUTHENPURAYIL, NATTASSERY KARA, KOTTAYAM. 2. SOBHANA, D/O. VISHNU NAMBOOTHIRI, KIZHAKILLOM VEETTIL, KUDAMALOOR KARA, AYMANAM VILLAGE, KOTTAYAM TALUK. BY ADVS. SRI.T.P.VARGHESE, SRI.PHILIP T.VARGHESE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.1282/2001 IN AS.NO.181/2001 DISMISSED 07/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... A.S.NO.181 OF 2001 ............................................. Dated this the 7th day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Kottayam in O.S.No.264/1995. The suit is one for realisation of the amount. It is the case of the plaintiff that the deceased first defendant had borrowed a sum of Rs.15,000/= on 28.9.1993 and Rs.7,500/= on 14.7.1994 and had issued two cheques to him acknowledging the receipt of payments. In spite of notice the amount is not paid, hence the suit. Before filing of the written statement, the first defendant died. His legal representatives are impleaded as supplemental defendants 2 to 4. They had denied the entire transaction and further contended that no amount is due to the plaintiff from the defendants and therefore prayed for dismissal of the suit. In the trial court after examining all the materials, the plaintiff has been granted a decree and it is against that decision, the defendants have come up in appeal. 2. Heard the learned counsel for the appellants as well as the respondents. The learned counsel for the appellants : 2 : A.S.NO.181 OF 2001 had brought up several glaring inconsistencies which had been properly adverted by the court below. According to the learned counsel, the deceased first defendant never used to write in English and he always writes in Malayalam. He has pointed out that whenever the man signs, the name is only written in Malayalam. So far as PW1 is concerned, though in the chief examination he makes an attempt to state that Ext.A1 is in the handwriting of deceased first defendant, in the cross examination he would depose that Exts.A1 and A2 are not in the handwriting of the deceased first defendant. It has also to be stated that, according to the plaintiff, there was one George who had evidenced the transaction, but he is not examined as a witness. The defendants have also categorically denied the signature of the first defendant in Exts.A1 and A2. According to them the second defendant had joined a kuri conducted by the plaintiff and towards the kuri security bond the first defendant had also joined as a signatory and making use of that signature, signatures in Exts.A1 and A2 are created and a suit of this nature is filed. The learned Subordinate : 3 : A.S.NO.181 OF 2001 Judge had attempted to weigh the case of the defendants rather than that of the plaintiff. It is an incorrect procedure. When the whole transaction is denied and execution of the documents are denied, the burden is squarely upon the plaintiff to prove the execution and then only one can shift the burden to the other side. It is not available in this case. When faced with such a difficult situation, the learned counsel for the respondents would submit before me that if an opportunity is given, the signature can be sent for comparison which will reveal the truth. 3. In a case of this nature since the person whose admitted signature is not available and the materials available does not help the court to straight away accept the evidence of PW1, in order to have real appreciation of the mater, it is desirable to get a scientific report regarding comparison of signature which will enable the court in a better position to appreciate the materials. It is true that the first defendant is no more. But it has come out that the first defendant had received summons in the suit. He had also acknowledged the notice issued by the plaintiff and it is : 4 : A.S.NO.181 OF 2001 also the contention of the first defendant that he had singed in the bond executed by the second defendant to the plaintiff concerned,. So admittedly there are admitted signatures available before the court. So the admitted signatures can be sent along with the disputed signatures in Exts. A1 and A2 for comparison so as to get a report regarding the genuineness of the signature. Thereafter the parties can be permitted to adduce evidence and the matter can be disposed of in accordance with law. 4. Therefore the judgment and decree under challenge are set aside and the matter is remitted back to the trial court with a direction to permit the plaintiff to send the disputed signature for comparison with the admitted signature and after obtaining a report, the parties be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. Parties are directed to appear before the trial court on 30.8.2010. Being a very old matter, let attempt be made to dispose of the suit as expeditiously a s possible. Needless to say that : 5 : A.S.NO.181 OF 2001 expense for the expert has to be borne by the plaintiff and ultimately everything will depend upon the result of the suit. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.181 OF 2001 M.N. KRISHNAN, J. ........................................... A.S.NO.181 OF 2001 ............................................. 7th day of July, 2010. J U D G M E N T