IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 391 of 2010()
1. SUNIL KUMAR, S/O.GOPALAKRISHNAN NAIR,
... Petitioner
Vs
1. SANTHAKUMARI W/O.CHANDRAN, KOLATTU HOUSE
... Respondent
For Petitioner :SRI.S.SHYAM
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :30/07/2010
O R D E R
THOMAS P JOSEPH, J.
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C.R.P.No.391of 2010
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Dated this 30th day of July, 2010
ORDER
This revision is against a divergent finding and verdict
passed by the learned Additional District Judge, North Paravur in
A.S.No.137 of 2008. That appeal arose from judgment and
decree in O.S.No.305 of 2007 of the court of learned Munsiff,
North Paravur. That is a suit filed by petitioner for recovery of
money from respondent on the strength of an alleged borrowal
and execution of demand promissory note on 16-10-2006.
Petitioner claimed that respondent borrowed Rs.20,000/- from
him on 16-10-2006 agreeing to repay the same on demand with
interest @ 12% per annum and executed Ext.A1, demand
promissory note. On respondent failing to pay that amount
petitioner instituted the suit. Respondent contended that she had
no such transaction with petitioner, nor had executed Ext.A1,
demand promissory note. Petitioner is a real estate broker to
whom she had entrusted responsibility to find out a suitable
purchaser for her property . She handed over a photocopy of her
title deed and a signed blank paper to the petitioner to facilitate
receipt of token advance in case a deal is arranged by petitioner.
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In the meantime even without the assistance of petitioner
respondent entered into an agreement for sale of her property
with one Sajan and the property was sold to him. Petitioner
demanded brokerage from the respondent. Respondent refused
to oblige since petitioner had no role in the sale of property to
Sajan. Enraged, petitioner has fabricated a demand promissory
note and instituted the suit. Petitioner gave evidence as PW1 and
proved Ext.A1. Respondent gave contra evidence as DW1.
Learned Munsiff observed that there is no specific denial of the
signature of respondent in Ext.A1though, when petitioner was in
the box and examined as PW1 it was suggested so. Learned
Munsiff also made a comparison of the disputed signature in
Ext.A1 with specimen signatures of respondent obtained in the
course of her evidence and observed that signatures are similar,
found no reason to disbelieve PW1 and granted decree as prayed
for. Respondent challenged that judgment and decree before the
learned Additional District Judge. Learned Additional District
Judge was of a different view. It is observed that on the facts and
circumstances of the case learned Musniff was not correct in
comparing the disputed signature with specimen signature and
reaching a conclusion. According to the learned Additional
District Judge due execution of Ext.A1 is not proved and even if it
is taken that signature in Ext.A1 is not disputed, that did not
C.R.P.No.391 of 2010 : 3 :
amount to admission or proof of the document as such. Relevant
decisions on the point are referred to by the learned Additional
District Judge. Learned Additional District Judge took the view
that there is no proper proof of execution of Ext.A1 and allowed
the appeal. That judgment and decree are under challenge.
Learned counsel for petitioner contends that there was no good
reason for the appellate court to reverse a well reasoned finding
of the trial court which rested on a proper appreciation of
evidence and a comparison of disputed signature with the
admitted signatures of respondent which is permissible under
Section 73 of the Evidence Act (for short, “the Act”).
2. Revisional jurisdiction of this court under Section 115
of the Code of Civil Procedure (for short, “the Code”) is limited in
the sense that reappraisal of evidence is not warranted except to
find whether finding entered by the subordinate court is
perverse or is not supported by any evidence. Bearing that in
mind I shall refer to the evidence on record.
3. As I stated, respondent denied borrowal from
petitioner and execution of demand promissory note. Assuming
that signature in Ext.A1 is not disputed, as rightly observed by
learned Additional District Judge that does not amount to proof or
admission of the due execution of the instrument though, it may
be said that admission or proof of signature went a long way in
C.R.P.No.391 of 2010 : 4 :
proving due execution of the instrument. Still, when execution of
the document is denied burden squarely fall on the propounder to
prove its due execution. Here, so far as alleged execution of
Ext.A1 is concerned what is available is only oath against oath. It
is pertinent to note that in Ext.A1, there is no witness nor has
petitioner a case that alleged transaction was witnessed by
anybody. He does not admit that he is a real estate broker or
that he had any other dealings with the respondent. In such a
situation it is quite unlikely that without any witness to attest
Ext.A1, a document like Ext.A1 would have been got executed. I
must also bear in mind that petitioner has no valid explanation
why there happened to be no witness for Ext.A1. The further fact
which I must bear in mind is that though petitioner has a case
that he demanded repayment of the amount several times, he did
not even care to issue a notice to the respondent so that
respondent could give her reply to the case pleaded by petitioner.
Instead, petitioner straight away instituted the suit.
4. So far as comparison of disputed signature is
concerned, no doubt Section 73 of the Act permits the court to do
so. But, binding authorities on the point say that the court shall
not relegate itself to the position of a witness by such
comparison. Court shall not base its decision solely on the result
of such comparison. I stated that there is only oath against oath.
C.R.P.No.391 of 2010 : 5 :
Nothing is brought out to disbelieve version of respondent. In
such a situation what is available is only the comparison of
disputed signature made by the learned Munsiff. That, appellate
court rightly found was not proper in the absence of other
acceptable evidence in favour of petitioner. Learned Additional
District Judge has referred to the facts, evidence and question of
law involved in holding that petitioner has not proved his case
against respondent. That finding rest on a proper appreciation of
the evidence on record in the light of the binding authorities on
the point. I do not find any perversity or illegality in the finding
of learned Additional District Judge requiring interference.
Revision petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-