PRAJAPATI DAHYABHAI SAVJIBHAI Vs. SHAH AND CO

JUDGEMENT

(1.) The present Second Appeal has been filed under Section 100 of the Civil Procedure Code by the appellant-original defending challenging the Judgment & Order dated 30.01.1997 passed by the Learned 2nd Joint District Judge, Ahmedabad (Rural) at Mirzapur in Regular Civil Suit No.50 of 1995, wherein following substantial question of law are raised :-

(2.) The brief facts of the case are that Civil Suit No.35/1993 was filed by the respondent-original plaintiff in the Court of the Learned Civil Judge (JD) at Dehgam for the recovery of Rs.4,450/- from the present appellant-original defendant. It is stated that the promissory note was executed and as the amount was not recovered, ultimately Suit was filed for the recovery of the amount with interest i.e. total amount of Rs.7,080/-, which was dismissed by the Learned Civil Judge (JD), Dehgam vide Judgment and Order dated 05.08.1995. Against which, Regular Civil Appeal No.50/1995 came to be filed challenging the said judgment, which came to be allowed by the Learned 2nd Joint District Judge, Ahmedabad (Rural) at Mirzapur vide Judgment & Order dated 30.01.1997.

(3.) Learned counsel, Mr.Mukesh Dave appearing for the learned counsel, Mr.Umesh Trivedi for the appellant submitted that the Suit was not decreed and the lower Appellate Court has failed in appreciating the evidence, particularly with regard to execution of the promissory note itself, which is produced at Exh.18. It was submitted that the signature was disputed and as there is no evidence about the opinion of the handwriting expert as per Section 17 of the Evidence Act, the lower Appellate Court has failed in appreciating these aspects while allowing the appeal. He has also made submission with regard to limitation that the Suit was barred by limitation, which has not been considered. Therefore, the present appeal may be allowed.