VEERAVU P. M. Vs. KUNJU MOIDEEN

JUDGEMENT

(1.) The defendant in O. S. No. 185/85 on the file of the III Additional Sub Court, Ernakulam, is the appellant. The suit is for realisation of money from the defendant. The appeal is against the judgment and decree of the court below in the above suit allowing the plaintiff to realise an amount of Rs. 22,198 and 6 per cent interest on the principal amount.

(2.) The case of the plaintiff is that the defendant had borrowed a sum of Rs. 17,600 on 7th February 1983 and he had executed Ext. A-1 promissory note for the said amount. Even though it was agreed to be repaid on demand, the defendant refused to make payment and it was in that background the suit was filed. The case of the defendant on the other hand is that he did not execute the promissory note nor did he receive any consideration. On the side of the plaintiff two witnesses were examined. P.W. 1 is the plaintiff and P.W. 2 is one of the attesting witnesses to the Ext. A-1. On the side of the defendant two witnesses were examined, D.W. 1 and D.W. 2. The court below after the trial found that the contentions of the defendant were untrue and a decree was accordingly passed in favour of the plaintiff as above.

(3.) The Ext. A-1 dated 7th February 1983 is alleged to be the promissory note executed by the defendant in favour of the plaintiff. The entire cause of action of the suit is based on Ext. A-1 promissory note. In the written statement filed by the defendant on 16th October, 1985 specifically denied the execution of the promissory note. In view of this specific denial, the burden is on the plaintiff to prove the execution of Ext. A-1 document. In order to discharge that burden the plaintiff has examined one K. P. Aliyar as P.W. 2. His name is found to be seen entered on Ext. A-1 promissory note as the last among the four attesting witnesses. However, it is pertinent to note that the Scribe of Ext. A-1 P. M. Mohammed has not been examined. This would have been the best evidence in this case. The explanation for his non examination is that he is a close relative of the defendant. It does not stand to reason because P.W. 2 is also found to be a relative of defendant. If the Scribe had been examined, he would have given the true version. Therefore, the non examination of Scribe is very fatal to the case of the plaintiff. The evidence of P.W. 1 and P.W. 2 is insufficient to prove the execution of Ext. A-1 legally.