PARANGODAN Vs. K M BAVA

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and decree of the Subordinate Judge, Thrissur in O. S. 1270/91. The suit is one for realisation of money alleged to be due under an agreement and the trial court has decreed the suit for Rs. 17,500/- with 12% interest on the said sum from 10. 6. 1990 till realisation with proportionate cost from the defendant. Aggrieved by that decision the defendant has come up in appeal and the plaintiff has filed a cross objection challenging the denial of the entire plaint claim.

(2.) TO understand the case, brief facts are to be stated. It is the case of the plaintiff that the defendant agreed to supply 35 Thulam of dried arecanut and had borrowed a sum of rs. 17,500/- as per Ext. A1 agreement dated 10. 6. 1989. A perusal of the agreement would reveal that the amount has been handed over with the said stipulation and in case of default of supply the value on the date of breach has to be given. It is scribed by PW1 kesavankutty that it contains the signature of the plaintiff as well as the defendant. The other witness to Ext. A1 is one Surendran. On the other hand the defendant totally denies the transaction and according to him he had purchased some gold ornaments from one c. L. Varghese for his daughter's marriage and at that time he had given a blank signed paper as well as his documents of title and thereafter had paid Rs. 30,000/- to C. L. Varghese. According to him, Mr. Varghese did not give him any receipt and subsequently has concocted a document and the suit is initiated in this form. So in other words, there is a total denial of the execution of the agreement.

(3.) IN a civil case it is true that the burden is squarely on the plaintiff to prove the execution of the document. When matters are analysed, it is the preponderance of probabilities that may have to be weighed in accepting the case of the parties. The plaintiff has not been examined in this case and the explanation tendered is that he is working abroad. PW1 is the scribe as well as one of the attesting witness. He had deposed before the court that the defendant is personally known to him where as the plaintiff is not known to him personally and that they came together to his office and that the document was executed and both of them had affixed their signature and in his presence an amount of Rs. 17,500/- was handed over to the defendant in this case. PW2 is an Ex-service man who is not a signatory to the document. He would depose that it was the plaintiff who helped his son to get a visa and he was present when the document was signed by the plaintiff and the defendant. PWs. 1 and 2 has been squarely cross examined and nothing has been brought out in this case to discredit their version and one cannot find that they have any axe to grind against the defendant and tender false evidence before the court. So the mere non examination of the plaintiff especially in the backdrop of his non availability in the place cannot be said to be fatal if the evidence of pws. 1 and 2 are acceptable.