IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 181 of 2001(A)
1. SUBHADRA
... Petitioner
Vs
1. P.I.CHERIAN
... Respondent
For Petitioner :SRI.RAJIT
For Respondent :SRI.T.P.VARGHESE
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/07/2010
O R D E R
M.N. KRISHNAN, J.
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A.S.NO.181 OF 2001
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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
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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
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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
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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
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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
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M.N. KRISHNAN, J.
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A.S.NO.181 OF 2001
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7th day of July, 2010.
J U D G M E N T