RAMIAH Vs. MANICKAVASAGAM

JUDGEMENT

(1.) THE defendant in O.S.No.266 of 1987 on the file of the District Munsif, Thirumangalam, is the appellant in the second appeal. THE respondent herein filed the suit against the appellant for recovery of moneys due under a promissory note alleged to have been executed by the appellant on 27.4.1984.

(2.) THE defence set up by the appellant was that he had not received any amount from the respondent; he had not executed any promissory note in his favour; his signature had been forged and the suit promissory note had been created. THE further case of the appellant was that the respondent was having a cloth shop. THE appellant had introduced many customers to him. His business had become dull and he was under the impression that only at the instigation of the appellant, the customers were not purchasing from his shop. THE respondent had therefore come forward with the false claim.

(3.) THE reasoning of the learned District Judge, in my view, is clearly erroneous. When one of the attestors and the scribe were available, they should have been summoned and examined, particularly when the appellant had disputed the very execution of the promissory note. THE omission to examine the two persons, in my view, is rather serious and the mere ipse dixit of the respondent as P.W.1 should not have been accepted by the learned District Judge. THE learned District Judge relied on the judgment of a learned Single Judge of this Court reported in Karuppiah Moopanar v. Muthukaruppan Servai, AIR 1975 Mad. 221 for coming to the conclusion that the document could be accepted without examining either the attestor or the scribe. In my view, the decision has no application to the facts of the present case. That was a case where the executant admitted his signature and it was found totally unnecessary to examine either the attestor or the scribe. THE learned Judge who decided that case also adverted to the provisions of Section 72 of the Evidence Act which is to the effect that an attested document not required by law to be attested may be proved as if it was unattested. In the present case execution is not admitted. May be the promissory note does not require to be attested. But then the specific case of the appellant being that it is a forged document, something more was required of the respondent to prove the document. Thus, I am clearly of the opinion that the conclusion reached by the learned District Judge cannot at all be supported, in the absence of the examination of the attestor and the scribe. It is no excuse to say that one is not traceable and the other has undergone some operation. THE respondent has to pay the penalty for this egregious omission.