IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28287 of 2004(P)
1. K.VASANTHA KUMARI, W/O.RAVEENDRANATH,
... Petitioner
Vs
1. JAYA ALFRED, W/O.LATE K.ALFRED,
... Respondent
2. SHINEN ALFRED, D/O.LATE E.ALFRED,
3. CHRISTY ALFRED (MINOR),
For Petitioner :SRI.K.B.PRADEEP
For Respondent :SRI.R.T.PRADEEP
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :26/08/2009
O R D E R
P.S.GOPINATHAN, J.
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WP(C).No.28287 of 2004-P.
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Dated this the 26th day of August, 2009.
J U D G M E N T
Petitioner is the defendant in OS.No.181/2002 on the file of the Sub
Court, Neyyattinkara. The respondents herein, who are the widow and
children of late K.Alfred, instituted the above suit seeking a decree for
realisation of a sum of Rs.2,85,000/- along with interest. According to the
respondents, the petitioner borrowed the said amount from the late husband
of the first respondent and in discharge of the said liability eight cheques,
which were marked as Exts.A1 to A8 before the trial court, were issued and
that despite the request to pay back the amount and a lawyer notice caused
on 29.8.2002 the liability was not discharged.
2. The petitioner inter-alia contended that there was some
monetary transaction between the husband of the petitioner and the husband
of the first respondent some time back in 1994 and that Exts.A1 to A8 were
blank cheques issued by the petitioner as security for the money advanced
and that the liabilities were later discharged and that the cheques so issued
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were not returned on the pretext that the cheques were misplaced. Without
the consent of the petitioner material alterations were made in Exts.A1 to
A8 by filling up the columns and the suit was instituted and that there is no
debtor-creditor relationship between the petitioner and the husband of the
first respondent and that the suit was instituted at the instance of a Chartered
Accountant who was on loggerheads with the petitioner and prayed for
dismissal of the suit.
3. The suit was posted for trial in the list on 6.2.2004 and
thereafter the first respondent and two other witnesses were examined on
the side of the respondents. The documents were also marked as Exts.A1 to
A8. The petitioner was examined as Dw1. Two other witnesses were also
examined on her side. Exts.B1 to B3 and X1 were marked. On 21.6.2004
petitioner filed Ext.P1 petition seeking an order to send Exts.A1 to A8
cheques to the forensic expert to ascertain the old-age of the writings in the
cheques. It was alleged in the affidavit that the respondents shaped their
case at the time of giving evidence and the evidence was adduced to the
effect that Exts.A1 to A8 were written by the husband of the petitioner and
signed by the petitioner in the year 2001in the presence Pws.1 to 3 and that
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if the age of the writings of the cheques is ascertained, it could be
established that the case set up by the respondents is false and vexatious.
4. Respondent resisted the petition by stating that the main plea of
the petition is one of discharge and that the petition was filed with an
intention to protract the proceedings and prayed for dismissal of the suit.
5. The learned Sub Judge by Ext.P2 order dated 2.9.2004
dismissed Ext.P1 . The relevant portion of Ext.P2 in para.8 reads as
follows:
“[T]he averments in the affidavit that the plaintiffs coined
their case only at the time of evidence and hence the
petitioner was disabled from filing the present petition before
the commencement of trial does not strike as reliable or
convincing. The case was listed for evidence on 6.2.2004 and
the defendant was examined on 25.2.2004 and thereafter the
present petition has been filed. The explanation for the delay
in filing the petition is absolutely unsatisfactory. The petition
is highly belated and the contention by the learned counsel for
the respondent that the petition has been filed only to protract
the proceedings cannot be dismissed as unfounded. The
conclusion follows that being highly belated and opposed to
the contention of the written statement the present petition to
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send the cheques in question to ascertain the age of the
writings on them by the Forensic Expert is not allowable at
the fag end of the trial.”
6. 12 days thereafter, Ext.P3 petition was filed with a plea to
reopen the case for evidence and to order summons to the witnesses. It was
with a plea that the witness schedule was filed on 20.1.2004 and steps were
taken on 27.3.2004. But the steps were returned unserved and again steps
were taken on 24.6.2004 and in response to the summons, witnesses were
present but documents called for could not have been brought. Hence the
case was adjourned to 21.6.2004 for production of the documents and on
that day the summons were not returned. Then the case was again posted
for return of summons to 28.6.2004 and that those facts were not brought to
the notice of the court while Ext.P2 order was passed and it was highly
necessary to reopen the case and to take evidence from the witnesses.
7. Ext.P3 petition was dismissed by Ext.P4 order dated 15.9.2004.
Ext.P4 reads as follows:
“Heard. Highly belated. Dismissed.”
Now the legality and correctness of Exts.P2 and P4 are assailed by this
petition under Article 227 of the Constitution of India.
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8. Both petitioner and respondents were heard. It is the very
consistent case of the petitioner that the respondents shaped their case at the
time of giving evidence and the evidence was adduced to the effect that
Exts.A1 to A8 were written by the husband of the petitioner and signed by
the petitioner in the year 2001 in the presence of Pws.1 to 3. Curiously,
neither the pleadings nor the evidence on record was produced along with
the writ petition. So, it has become rather difficult to have a correct
appraisal of the facts and to conclude whether the plea that the respondents
had shaped their case at the time of evidence is correct or not. However,
having heard either side, it didn’t appear that there was no much shaping of
the case at the time of evidence. It was specifically contended by the
respondents that those cheques were issued in the year 2001. It is true that
there is no plea that as to who wrote the disputed cheques. It is not disputed
that such minute aspects need not be pleaded. So the plea that the delay in
filing the petition is because of the shaping of the case at the time of
evidence is not at all correct and lacks bonafides. However, since the
petitioner herself was examined long before the filing of Exts.P1 and P3, at
my request, the learned counsel for the petitioner read out the evidence of
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the petitioner who was examined as DW1. It is pertinent to note that the
petitioner didn’t care to deny the evidence of Pws.1 to 3 to the effect that
Exts.A1 to A8 were issued in the year 2001 and that those were written by
the husband of the petitioner. Such being the nature of the evidence of the
petitioner, the request of the petitioner to forward the cheques to the
Forensic Science Laboratory to call for a report regarding the old-age of
Exts.A1 to A8 are not at all warranted. Adding to that the learned counsel
for the petitioner is not able to say whether technologies are available in the
Forensic Science Laboratory to ascertain the old-age of the writings in a
cheque. According to the learned counsel, let the cheques be sent to the
Forensic Science Laboratory and let them report whether technologies are
available to report the exact old-age of the writings or not. I am afraid to
appreciate the arguments. The procedures are not at all intended to test the
chances. Even if it is assumed that the Forensic Science Laboratory could
report the old-age of the writings that would only be an opinion evidence
and it cannot be given precedence over the oral evidence.
9. In Ext.P3 petition, the prayer is to reopen the case for evidence
and summons to the witness was sought for. According to the learned
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counsel for the petitioner, the purpose of the further evidence is to establish
that the cheques were issued in 1994 as contended by the petitioner.
Curiously, the petitioner didn’t care to produce a list of witness or the list of
documents so as to ascertain what is the scope of the further evidence
sought for. However, the learned counsel submitted that the documents
sought to be produced by the witnesses and the purpose of the examination
of the witnesses is to establish that Exts.A1 to A8 cheques were issued in
the year 1994. The same purpose as in Ext.P1. According to the learned
counsel, the cheque issue register and connected records, if any, would
establish the case of the petitioner. For that reason, I find that it is not at all
necessary to call for the records from the bank. The petitioner could have
either obtained a copy or extract of the said documents from the bank and
produced. It is pertinent to note that there is no case that copies wouldn’t
serve the purpose and originals are required. If those cheques were issued
from the bank in the year 1994, issuance of the next serial number of the
cheques and the encashment of the same could have been revealed from the
pass book maintained by the petitioner. The petitioner didn’t show any
reason for the non-production of the pass book which would be normally in
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her possession.
10. Since it was specifically averred in the plaint that the cheques
were issued in the year 2001, if the petitioner had got a case that those
cheques were issued in the year 1994 and was so earnest and in case the
pass book which would have contained all these particulars were not in the
possession of the petitioner, she should have earlier applied for the
production of the documents from the bank or produced the copies after
obtaining it. As I mentioned earlier, the suit was posted for trial in the list
on 6.2.2004. The issues might have been framed long back. The petitioner
had not shown any reason for waiting till the evidence of the respondents
were over and after examining the petitioner herself. In the above
circumstance, I fail to find that Exts.P2 and P4 orders were any way
erroneous.
11. As mentioned earlier, the petitioner had not cared to produce a
copy of the plaint, written statement or the evidences so far recorded or the
copy of the list of documents and the purpose for which it was brought in.
Since those documents were not produced, it has become rather difficult to
appreciate the back ground. By going through Exts.P1 and P3 petitions and
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Exts.P2 and P4 orders thereon, prima facie, those orders didn’t appear to be
erroneous or perverse. On the other hand good reasoning is given to justify
the orders. The petitioner has got other two defences, namely material
alteration and discharge. I find little material to interfere with Ext.P2 and
P4 orders in exercise of the powers conferred on this Court under Article
227 of the Constitution of India. The writ petition is devoid of merit.
Accordingly it is dismissed. No costs.
P.S.GOPINATHAN, JUDGE.
Kvs/-