Judgment:
Appeal filed under Section 100 of the Civil Procedure Code against the Judgment and Decree dated 11.02.2000 passed in A.S.No.47 of 1884 on the file of the Learned Subordinate Judge, Virudhachalam, confirming the Judgment and Decree dated 19.10.1983 passed in O.S.No.1255 of 1982 on the file of the Learned District Munsif, Virudhachalam.
J U D G M E N T
1. The Appellants/Defendants have filed the present Second Appeal as against the Judgment and Decree dated 11.02.2000 in A.S.No.47 of 1984 passed by the Learned Subordinate Judge, Virudhachalam, in confirming the Judgment and Decree dated 19.10.1983 in O.S.No.1255 of 1982 passed by the Learned District Munsif, Virudhachalam.
2.The First Appellate Court viz., the Learned Subordinate Judge, Virudhachalam, while passing the Judgment in A.S.No.47 of 1984, dated 11.02.2000, has inter alia observed that 'the plea that suit Promissory Note has been created in a forgery manner, is not accepted and in fact, the suit Promissory Note is supported by consideration and resultantly, affirmed the Judgment and Decree passed by the trial Court in the main suit by dismissing the Appeal with costs.'
3.Before the trial Court, in the main suit, 1 to 3 Issues have been framed for determination. On the side of the Plaintiff, (later deceased), Witnesses PW1 to PW3 have been examined and Ex.A.1 to Ex.A.7 have been marked. On the side of the Appellant/Defendant, witnesses DW1 has been examined and Ex.B.1 to Ex.B.3 have been marked.
4.Before the First Appellate Court in A.S.No.47 of 1984, Witness PW4 has been examined on the side of the Plaintiff (since deceased) and Ex.A.8 has been marked. On the side of the Appellants/Defendants, DW1 has been examined and Ex.B.4 to Ex.B.6 have been marked.
5.The trial Court, after contest on an appreciation of entire oral and documentary evidence available on record, has come to a clear conclusion that the loan taken under Ex.A.1 Promissory Note, dated 01.10.1979, is a family loan and that the Appellants 1 and 2/ Defendants have not established that a Partition has taken place in the joint family and accordingly, based on the assumption that the family is joint and only for a joint family necessity, the loan has been taken and as such, decreed the suit as prayed for with costs.
6.At the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law for determination.
1)Are not the Judgment and Decree of the Courts below are liable to set aside for misreading of the evidence available on merit?
2)In the absence of any cause of action or evidence as against the second defendant are the Courts below correct in decreeing the suit against the second defendant?
3)Are not the Judgment and Decree of the Courts below perverse?
4)Is not the Judgment and Decree of the Lower Appellate Court liable to be set aside for non-compliance with Order 41 Rule 31 of C.P.C.?
7.The Contentions, Discussions and Findings on substantial questions of law Nos.1 to 3:
According to the Learned Counsel for the Appellants/ Defendants, the trial Court as well as the First Appellate Court have committed an error in coming to the conclusion that Ex.A.1 Promissory Note, dated 01.10.1979, is a joint family loan and also, wrongly decreed the suit as against the Appellants/Defendants.
8.The Learned Counsel for the Appellants/Defendants urges before this Court that the Respondent/Plaintiff has not adduced any evidence before the trial Court that the purported borrowing as per Ex.A.1 Promissory Note, dated 01.10.1979, is by the 1st Appellant/1st Defendant as Kartha of the joint family and this aspect of the matter has not been adverted to by the Courts in a proper and real perspective.
9.Yet another submission made by the Learned Counsel for the Appellants/Defendants is that the Respondent/Plaintiff has not discharged his onus of proving Ex.A.1 Promissory Note, dated 01.10.1979 and even the evidence of PW2 and PW3 are liable to be rejected as they are interested witnesses.
10.Advancing his arguments, it is the submission of the Learned Counsel for the Appellants/Defendants that even to the naked eyes of the normal person, it is clear that the signature of DW1 (1st Appellant/1st Defendant) is forged and as such, the suit should have been dismissed by the Courts below.
11.Lastly, it is the contention of the Learned Counsel for the Appellants/Defendants that there is no necessity at all for borrowing money as per Ex.A.1 Promissory Note, dated 01.10.1979, but, these crucial aspects of the matter have not been taken into account by both the Courts, while passing the Judgment in the main suit as well as in the Appeal, which has resulted in serious miscarriage of Justice.
12.Conversely, it is the contention of the Learned Counsel for the Respondent/Plaintiff that both the Courts have taken into account the oral and documentary evidence adduced by the parties and they have rightly held that Ex.A.1 Promissory Note, dated 01.10.1979, has been executed by both the Appellants for consideration and the said findings of fact are nothing but, pure findings of the fact and further, the concurrent findings of the fact need not be interfered with by this Court sitting in Second Appeal at this distance point of time.
13.At this stage, this Court pertinently points out that in Para 3 of the Plaint, the Respondent/Plaintiff has averred that as per suit Promissory Note, the 1st Appellant/1st Defendant is to pay a sum of Rs.7,000/- to the Respondent/Plaintiff and the interest is Rs.1/- for Rs.100/- per month and further in Para 4(b), it is mentioned that the 2nd Appellant/2nd Defendant is the son of the 1st Appellant/1st Defendant and that the Appellants/Defendants are joint family and that the suit loan has been availed by the 1st Appellant/1st Defendant and the benefits of the said loan have been enjoyed by the 2nd Appellant/2nd Defendant and moreover, the said loan will bind the 2nd Appellant/2nd Defendant. Therefore, the 2nd Appellant/2nd Defendant has been arrayed as a party to the suit.
14.Admittedly, in the Plaint, the Respondent/Plaintiff has prayed for passing of a Decree for Rs.8,890/-(Principal sum of Rs.7,000/- and interest for the period from 01.10.1979 till 30.09.1982 of Rs.1,890/-) together with subsequent interest along with costs and for realisation of the Decree amount from and out of the joint family properties in the hands of the Appellants/Defendants.
15.In the Written Statement filed by the 1st Appellant/1st Defendant (adopted by the 2nd Appellant/2nd Defendant), it is mentioned that the suit Promissory Note is a 'piece of rank forgery' and as per the Promissory Note, no amount is due to be paid to the Respondent/Plaintiff and the consideration mentioned in the Promissory Note is false and also that the Promissory Note is not a valid one.
16.Further, in the Written Statement, it is also made mention of that on 01.10.1979, the loan has not taken for Rs.7,000/- for the 1st Appellant/1st Defendant's daughter Suseela's marriage and for purchasing of pair of bullocks. Also, it is also stated in the Written statement that the Respondent/Plaintiff along with his relative Rajavannian and others have fabricated a Sale Deed in respect of a land to one Neyveli Selvaraj and the Vigilance Police has filed a case before the Ulunthoorpettai First Class Magistrate Court etc. The 2nd Appellant/2nd Defendant is an unnecessary party to the suit since the suit Promissory Note is a 'piece of rank forgery' and the suit has to be dismissed with the compensatory costs of the 2nd Appellant/2nd Defendant. There is no cause of action for filing of the suit by the Respondent/Plaintiff. Also as per Section 35(a) of the Civil Procedure Code, the compensatory costs will have to be awarded to the Appellants since the Respondent/Plaintiff has filed a vexatious suit against them.
17.The Learned Counsel for the Appellants/Defendants submits that in Para 4(b) of the Plaint, the Respondent/Plaintiff has averred that the Appellants/Defendants are joint family and that the 2nd Appellant/2nd Defendant is the son of the 1st Appellant/1st Defendant and further, the suit loan has taken by the 1st Appellant/1st Defendant in the capacity of the Family Manager and also that the benefits of the suit loan have been availed by the 2nd Appellant/2nd Defendant and as such, the 2nd Appellant/2nd Defendant is also bound by the Ex.A.1 suit Promissory Note. Drawing the attention of this Court to these averments, the Learned Counsel for the Appellants/Defendants contends that the recitals in the Plaint to the effect that the Appellants/Defendants constituted a joint family and that the suit loan has taken by the 1st Appellant/1st Defendant by the Family Manager and that the said loan benefits have been availed by the 2nd Appellant/2nd Defendant and do not find a place in Ex.A.1 Promissory Note, dated 01.10.1979, tamil recitals which speak differently.
18.Expatiating his submissions, the Learned Counsel for the Appellants/Defendants relies on the recitals of Ex.A.1 Promissory Note, dated 01.10.1979 to the effect that in Ex.A.1 Promissory Note, there are recitals found in Tamil to the effect that the 1st Appellant/1st Defendant has availed the purported suit loan of Rs.7,000/- for the purpose of the second daughter Suseela's marriage expense and for purchasing of pair of bullocks.
19.The substance of the submissions of the Learned Counsel for the Appellants/Defendants is that the averment in Para 4(b) of the Plaint has referred to supra and the recitals in Tamil mentioned as aforesaid in Ex.A.1 Promissory Note dated 01.10.1979 are diametrically, symmetrically and logically opposed to each other and the recitals mutually destroy the case of the Respondent/Plaintiff, which clearly unerringly point out that the version projected by the Respondent, cannot be a true one. To put it differently, the Learned Counsel for the Appellants/Defendants submits that the stand taken by the Appellants/Defendants in the Written statement that the suit Promissory Note is a 'piece of rank forgery' and that they have not executed the suit Promissory Note in question, appears to be a probable and acceptable one and therefore, prays for allowing the Second Appeal.
20.It is not out of place for this Court to make a significant mention that Section 4 of the Negotiable Instruments Act, 1881, speaks of a 'Promissory Note'. An instrument is undoubtedly Promissory Note if the following elements are present (1)There ought to be an unconditional undertaking to pay (2)The amount should be a sum of money and the same must be certain (3)The payment should be to the order of a person who is certain or to the bearer of the instrument and (4)The maker should sign it.
21.Also, as per Section 118 of the Negotiable Instruments Act, the presumption until the contrary establish is that every Negotiable Instrument is made for consideration etc. The initial onus squarely rests on the Respondent/Plaintiff to prove the execution and on such proof being discharged a Court of Law shall raise presumption in his favour that the Promissory Note has been made for consideration then, it is the turn of the Defendant to rebut that presumption. It is true that a defendant in a Promissory Note suit can endeavour to establish the non-existence of a consideration by raising a probable defence either through circumstantial evidence or by direct evidence if any, as the case may be, depending upon the facts and situations of a given case.
22.A presumption arises when execution of instrument is established. It is not essential that the Defendant should admit that he executed the instrument. Even if the Defendant denied execution, the presumption arises, if otherwise the execution is proved, as opined by this Court. As a matter of fact, the presumption does not depend upon the admissions or denials of the Defendant. As soon as the making of a Pronote is established, the presumption operates as per decision Kunhiraman v. Padmakshi (1978) Ker Law Times 868.
23.If a Promissory Note is shown to be a true and genuine one then, the presumption is attached with it to point out that it has been executed at the place and on the date it mentions.
24.The words 'for consideration' need not necessarily be a consideration mentioned in the Promissory Note. It may be also for other consideration also. The special rule of the ingredients of Section 118 of the Negotiable Instruments Act, cannot and shall not affect the rule envisaged as per Section 114 of the Indian Evidence Act.
25.The Learned Counsel for the Appellants/Defendants invites the attention of this Court to Ex.A.1 Promissory Note, dated 01.10.1979 and points out that in the said Promissory Note over the 15 paise Revenue Stamp and 20 paise Revenue Stamp, the signature said to be that of the 1st Appellant/1st Defendant is not the real signature of the 1st Appellant/1st Defendant and that the Respondent/Plaintiff has forged the signature of the 1st Appellant/1st Defendant and also that the son of the 1st Appellant/1st Defendant namely the 2nd Appellant/2nd Defendant has not signed in the Promissory Note. He also laid emphasize on the first two letters in Tamil 'j''; seen in the Ex.A.1 Promissory Note over the Revenue Stamp and according to him, they are little bit matched or written in overwriting fashion and this caused shrewd or cloud or midst over in which the suit Promissory Note has come into existence, as alleged by the Respondent/Plaintiff. In short, the 1st Appellant/1st Defendant has denied the signature in Ex.A.1 Suit Promissory Note. On either side, before the trial Court no petition/application has been projected for sending the Ex.A.1 Promissory Note for the purpose of comparing the signature of the 1st Appellant/1st Defendant with that of the admitted signatures, who has required under Section 45 of the Indian Evidence Act. Both the Courts below have compared Ex.A.1 Suit Pronote dated 01.10.1979 obviously as per Section 73 of the Indian Evidence Act, which speaks of comparison of signature by a Court.
26.It is true that Section 73 of the Indian Evidence Act permits comparison of signatures, writings of a person with others admitted to be proved are written by that person. As a matter of fact, Section 73 of the Indian Evidence Act does not expressly or impliedly say or refer as to who can compare the disputed signature. A Court of Law has power to compare the handwriting or signature of a person with that of the admitted signatures of that person, who has written the same. But, the naked eye comparison by a Court of Law is not a desirable or a safe one because of the simple reason that a Court cannot take the role of an Expert. No doubt, the Court can form an opinion or a decision in regard to the controversy before it by means of relying upon the other oral and documentary evidence adduced in the case. In short, the comparison of Ex.A.1 Promissory Note though both the Courts have ventured into it. The said act is not a safe one. Per contra, the same is an hazardous one.
27.In the instant case on hand, though it is averred in the Plaint that the Appellants/Defendants are joint family and that the suit loan has been availed by the 1st Appellant/1st Defendant as Family Manager and the said loan has benefited the 2nd Appellant/2nd Defendant etc., the said recitals are not reflected in Ex.A.1 Promissory Note. Although the suit Pronote contains different recitals than the one mentioned in the Plaint viz., that loan has been taken by the 1st Appellant/1st Defendant allegedly for the purpose of performing his second daughter Suseela's marriage expense and for purchase of pair of bullocks, this Court comes to an irresistible and inescapable conclusion that the Respondent/Plaintiff has not established to the subjective satisfaction of this Court that the suit loan has been taken by the 1st Appellant/1st Defendant as Family Manager and that the benefits of the said loan have been availed by the 2nd Appellant/2nd Defendant namely his son. As such, it cannot be accepted that the 2nd Appellant/2nd Defendant is liable to pay the suit amount. Moreover, the name of the 2nd Appellant/2nd Defendant is not seen as one of the persons, who has singed in Ex.A.1 Promissory Note. Therefore, this Court renders a categorical finding that the 2nd Appellant/2nd Defendant is not liable to pay the suit amount and that he is only an unnecessary party to the suit.
28.As regards the passing of the consideration of Rs.7,000/- has made mention of in Ex.A.1 Promissory Note dated 01.10.1979 and that the same has been executed by the 1st Appellant/1st Defendant to and in favour of the Respondent/Plaintiff, it is to be pointed out that a Promissory Note can be executed for different reason or for different purpose than the one mentioned in regard to the averment made by the Respondent/Plaintiff in the Plaint in Para 4(b) and that all the averments/recitals made in Ex.A.1 Promissory Note are in Tamil. Yet, this Court holds that the different recitals mentioned in Ex.A.1 Promissory Note will not affect the legal presumption as per Section 118 of the Negotiable Instruments Act. In regard to the specific plea taken by the 1st Appellant/1st Defendant that the suit Pronote is a 'piece of rank forgery' and that he has not executed the suit Pronote to and in favour of the Respondent/Plaintiff, it is to be pointed out that DW1 in his evidence (in Chief examination) has candidly deposed that after executing the Promissory Note, he has not purchased either cart or bullocks and that he has not purchased the bullocks. To this admission made by DW1, the Learned Counsel for the Appellants/Defendants contains that the 1st Appellant/1st Defendant as DW1 in his evidence has clearly stated that the signature found in Ex.A.1 does not belong to him and further, DW1 has stated that it is not correct to state that they have received a sum of Rs.7,000/- on 01.10.1979 and executed a suit Promissory Note in favour of the Respondent/Plaintiff and that the stray admission of DW1 namely that 'he has not purchased the cart or bullock after executing Ex.A.1 and that he has not purchased bullocks cannot be construed as an unequivocal and unambiguous one, because of the simple fact that in law, a truncated or stray admission is not an admission and only an admission will have to be looked into by reading the whole evidence or entire evidence tendered by a witness before a Court of Law.
29.On going through the evidence of DW1 in entirety, this Court is of the considered view that though in a preamble portion of his evidence, the 1st Appellant/1st Defendant has denied his signature in Ex.A.1 Promissory Note and that he has also stated that it is not correct to state that he has received a sum of Rs.7,000/- on 01.10.1979 and executed a bond etc. yet, this Court is of the opinion that PW1 notwithstanding the denial as aforesaid has clearly, candidly in a cogent, coherent and convincing fashion admitted in an unmistakable terms and that after executing Ex.A.1 Promissory Note, he has not purchased either cart or bullocks and this admission squarely guts the defence projected by him in the written statement. To put it succinctly, DW1 by the aforesaid admission obviously has given a clear go by to the stand taken by his written statement that Ex.A.1 is a rank forgery. Though PW2 and PW3 are said to be interested witnesses on behalf of the Respondent/Plaintiff and against them a criminal case for forgery has been filed before the Criminal Court and later on said to have been acquitted. Yet their names are seen as witnesses in Ex.A.1 Promissory Note and they have also spoken about the 1st Appellant/1st Defendant executing the Ex.A.1 suit Promissory Note and also they speak about the factum of receipt of consideration by the 1st Appellant/1st Defendant. Moreover, PW1 has also spoken in his evidence about the passing of consideration for the suit Pronote etc. and that the 1st Appellant/1st Defendant has received a sum of Rs.7,000/- as mentioned in Ex.A.1 Promissory Note. Although a plea has been taken that PW1 scribe of Ex.A.1 Promissory Note are inimical to the Appellants/Defendants, but, this Court opines that the evidence of the Attesters to Ex.A.1 Promissory Note and the scribe to the Promissory Note, who have been examined before the trial Court, cannot be so easily discarded as a matter of routine. Therefore, this Court holds that the Ex.A.1 Suit Promissory Note is supported by consideration for Rs.7,000/- and the 1st Appellant/1st Defendant has executed the Ex.A.1 Promissory Note, to and in favour of the Respondent/Plaintiff and the contra plea taken by the Appellants/Defendant are outrightly rejected by this Court. There is no misreading or misappreciation of evidence of witnesses by both the Courts below in regard to the presumption to be drawn as per Section 118 of the Negotiable Instruments Act, 1881. As regards the cause of action or evidence against the 2nd Appellant/2nd Defendant, in view of the detailed discussion mentioned supra, this Court comes to an inescapable conclusion that both the Courts have committed an error in holding that the 2nd Appellant/2nd Defendant is liable to pay the suit amount and in this regard, the Decree passed by both the Courts insofar as the 2nd Appellant/2nd Defendant is per se not sustainable in the eye of law and to that extent, the said findings of the Court below are perverse and accordingly, the substantial questions of law 1 to 3 are so answered.
30.The Contentions, Discussions and Findings on substantial questions of law No.4:
It is the contention of the Learned Counsel for the Appellants 1 and 2 that the First Appellate Court in A.S.No.47 of 1984 has in fact only formulated a point for determination viz., whether the Appeal is to be allowed?, whether the Judgment and Decree of the trial Court are liable to be set aside and indeed, it has not framed the necessary points for determination in regard to the controversies/disputes revolving around the case between the parties and as such, the First Appellate Court has not adhered to the ingredients of Order 41 Rule 31 of Civil Procedure Code.
31.This Court extracts the ingredients of Order 41 Rule 31 of Civil Procedure Code, which are as follows:
Rule 31.Contents, date and signature of judgment_ The judgment of the Appellate Court hsall be in writing and shall state _
(a)the points for determination;
(b)the decision thereon;
(c)the reasons for the decision; and
(d)where the decree appealed from is reversed or varied, the relief to which the appellant is entitled:
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
32.From the above ingredients of Order 41 Rule 31, it is quite clear that it is the primordial duty of the First Appellate Court to frame or raise the necessary points that arise for rumination, mainly, with a view to clear up the attention of the Court in certain specific and rival contention projected before it. As a matter of fact, the ingredients of Order 41 Rule 31 of Civil Procedure Code are mandatory.
33.Significantly, this Court pertinently points out that in law, the First Appellate Court shall deal with all the points raised and recorded reasons for arriving at its conclusions/findings. Indeed, discussion of every part of evidence in Appellate Judgment is imperative. The Appellate Court Judgment must contain decision on each point arising for consideration before it.
34.It is to be noted that 'Judgment of Reversal' must express opinion on all points are a subordinate Court based its decision. In the order of reversal, an Appellate Court is duty bound to refer to all evidence requiring better treatment by trial Court, relied on by the trial Court, in the considered opinion of this Court.
35.No wonder, the powers of an Appellate Court under Or.41 R.32 and R.33 of Civil Procedure Code are Co-exclusive and Co-extensive with the powers of the trial Court. The aim of Or.41 R.33 of Civil Procedure Code is to enable the Appellate Court to do justice to all parties whether before it or not. Furthermore, Or.41 R.33 read with Or.42 Rule 1 of Civil Procedure Code enjoins an Appellate Court to pass an Order or Judgment, it thinks fit and proper.
36.By going through the point for determination framed by the trial Court to the effect that 'whether the Appeal is to be allowed? and whether the Judgment and Decree of the trial Court are liable to be set aside, this Court opines that the First Appellate Court has framed only an Omnibus and also, a wholesale and a mechanical way of framing of determination instead of framing necessary points that has arisen for consideration in regard to the pleadings projected by the parties in the instant case on hand. Unfortunately, the First Appellate Court has forgotten about the necessary ingredients of Order 41 Rule 31 of Civil Procedure Code and needless to say as a matter of repetition that it has framed a wholesale and mechanical way of framing of determination as referred to supra and it cannot be safely said that it is not a point for determination at all. Be that as it may, that is not a matter which entail automatic remand of the case to be made by this Court. Yet, even in the absence of necessary points for determination being framed or formulated by the First Appellate Court, yet, this Court is empowered to look into the entire gamut of pleadings, oral and documentary evidence available on record and to arrive at an independent conclusion. Therefore, this Court holds that for non-formulation of necessary points for determination as per Order 41 Rule 31 of Civil Procedure Code will not ipso facto entail this Court to set aside the Judgment and Decree of the First Appellate Court in Appeal. As a matter of fact, this Court has traversed upon the entire subject of the matter in issues and dealt with the same as per law and accordingly, the substantial question of law No.4 is so answered. In the result, the Second Appeal is partly allowed, leaving the parties to bear their own costs. It is held by this Court that the First Appellant/First Defendant is liable to pay the Ex.A.1 suit amount of Rs.7,000/-, together with interest at 9% per annum from the date of Ex.A.1 Promissory Note till date of passing of the Decree and thereafter, to pay 6% interest from the date of decree till date of realisation. The suit claim in respect of the 2nd Appellant/2nd Defendant is hereby dismissed. The 1st Appellant/1st Defendant is granted three months time to pay the decree amount from the date of receipt of a copy of this Judgment.