IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 285 of 2006()
1. MATHAIKUTTY, AGED 55,
... Petitioner
Vs
1. OMANA, AGED 47,
... Respondent
For Petitioner :SRI.RAJA VIJAYARAGHAVAN
For Respondent :SRI.K.SUBASH CHANDRA BOSE
The Hon'ble MR. Justice K.PADMANABHAN NAIR
Dated :07/03/2007
O R D E R
K.Padmanabhan Nair,J.
--------------------------------
F.A.O.No.285 of 2006
--------------------------------
Dated, this the 7th day of March, 2007
JUDGMENT
The plaintiff in a suit for money is the appellant in this
First Appeal from Order. He has filed the suit for realisation of
Rs.25,000/- with interest. In the trial Court, the contention put
forward by the respondent-defendant was that there was no
borrowing. It was contended that she was a subscriber to a chit
conducted by the appellant and she was the successful bidder. At
the time of accepting the prized amount, she affixed a signature
in a blank paper, which contained a 20 paise revenue stamp. The
trial Court decreed the suit. Challenging that, the respondent filed
an appeal before the lower appellate Court. The lower appellate
Court set aside the judgment and decree and remanded the
matter for fresh trial. Challenging the order of remand, the
plaintiff has filed this appeal.
2. The three main points raised are that the lower
appellate Court has wrongly cast the burden of proof on the
plaintiff; that before the trial Court three issues were framed
F.A.O.No.285 of 2006
– 2 –
after hearing both sides and the respondent had, at any point of
time, raised a contention that issues framed are not sufficient or
she is unable to put forward her defence because of the
vagueness of the issue; and that the oral evidence of P.W.1 was
misread and misconstrued by the lower appellate Court.
3. The judgment of the trial Court shows that the
original defence put forward by the respondent was that at the
time of receiving the prized chit amount conducted by the
appellant, she affixed her signature on a 20 paise revenue stamp.
At the time of oral evidence, her case was that the appellant has
removed the twenty paise revenue stamp from the blank paper
and affixed 2 one rupee stamps on that paper and some other
person had forged her signature on those stamps. So, it is a case
in which the respondent challenge the genuineness of the
signature itself. When a person raises a specific contention that
he/she is not the author of the disputed signature, the burden is
on such party to prove the same. The opposite party had no
burden to discharge in this regard.
4. Regarding the re-casting of issues, the trial Court
shall consider the arguments of both sides and take a decision
F.A.O.No.285 of 2006
– 3 –
whether any additional issues are to be framed in this case. Of
course, the lower appellate Court had made an observation that
there are some inconsistencies in the oral evidence of the
plaintiff. When the lower appellate Court thought it fit to give an
opportunity to the defendant, it ought not have made such an
observation so as to prejudicially affect the plaintiff. So, that
finding is vacated and there will be an open remand of the entire
case. The trial Court shall try and dispose of the suit afresh in
accordance with law, untrammelled by any observations made by
the lower appellate Court in the remand order. It is made clear
that there is no need for a de novo trial. If any one of the parties
want to adduce additional evidence, they shall make a request to
the trial Court and if such a request is made, the same shall be
heard and disposed of on merits.
The appeal is disposed of as indicated above.
I.A.No.4540 of 2006 shall stand dismissed.
K.Padmanabhan Nair
Judge
vku/-