RANI Vs. AROKIYAMMAL

JUDGEMENT

(1.) SECOND Appeal is filed by the unsuccessful plaintiff against the judgment and decree of the learned Principal Subordinate Judge at Villupuram dated 05.09.2008 made in A.S.No. 47 of 2007, confirming the judgment and decree of the learned II Additional District Munsif, Tirukoilur, dated 03.08.2005 made in O.S.No. 139 of 2004, wherein the Lower Court has held that the suit pro -note has not been supported by consideration.

(2.) ORIGINALLY , the suit has been filed by the plaintiff in O.S.No. 139 of 2004 before the II Additional District Munsif, Tirukoilur, for recovery of money due on a pro -note. In the plaint, the plaintiff has averred that the defendant has borrowed a sum of Rs.40,000/ - on 26.12.1995 and executed a pro -note in favour of the plaintiff agreeing to repay the amount along with interest at the rate of 12% per annum whenever demanded by the plaintiff. As the defendant did not pay the money even after several oral demands made by the plaintiff, a legal notice was issued on 22.01.1997, which emanated in filing a reply containing false allegations. Hence, the suit was filed by the plaintiff for recovery of money on the basis of the pro -note. The defendant has filed a written statement admitting the execution of the pro -note, but, he disputed as regards the passing of consideration. In the written statement, the defendant has further averred that his son, by name, Babu was working in Bombay and was residing in Bombay along with his wife, by name, Lourdhumary. The plaintiff's son Sivashankar was also employed at Bombay, who stayed with Babu. The plaintiff's son took one Thirumurthy from the Village to Bombay. He also stayed along with the son of the plaintiff and defendant. The said Thirumurthy being a Tailor did tailoring business by staying in the house of Babu. While so, an illicit intimacy arose between Thirumurthy and Lourdhumary and they eloped during October, 1995. Because of that, there arose a quarrel between the said Babu and Sivashankar. In that quarrel, Sivashankar suffered grievous injury and his leg was fractured. Thereafter, there was a Panchayat convened in the Village in which the elders decided that the defendant has to pay a sum of Rs.10,000/ - for the Medical Expenses of the said Sivashankar and if there is any permanent disability, then the defendant has to pay a further sum of Rs.20,000/ -, for which, as per the Village customs double the amount was filled up in the pro -note i.e., for Rs.40,000/ - as security and because of the compulsion of the Panchayatar, the defendant had signed the pro -note (Ex.A.1), but, fortunately Sivashankar did not sustain any permanent disability, therefore, when the defendant sought for return of the pro -note, it was not given. Even during the execution of the pro -note itself, the plaintiff's husband and Sivashankar have executed a Muchalika (Ex.B.1) stating that the quarrel between Babu and Sivashankar has been settled. Therefore, according to the defendant, the very pro -note is not supported by any consideration and the defendant has no necessity to borrow any amount from the plaintiff and further the plaintiff has no source to lend such a huge sum, therefore, the suit has to be dismissed. Considering the oral and documentary evidence, the Lower Court having found that even though the execution of the pro -note is admitted, for the execution of the same no consideration has been passed, especially when Exs.A.1 -pro -note and B.1 -Muchalika for settlement of dispute between the parties were executed on the same day and when there was a settlement talk, the non -examination of the attesting witness of the pro -note is fatal to the case and hence, disbelieving the theory of plaintiff for advancement of money, has ultimately dismissed the suit. Aggrieved against the same, the plaintiff filed an appeal in A.S.No. 47 of 2007 before the Principal Subordinate Court, Villupuram. In the appeal also, the Lower Appellate Court categorically held that the attesting witness in the pro -note (Ex.A.1) has not been examined. Even the plaintiff, who was examined as P.W.1, in her cross -examination has admitted that the witness in Exs.A.1 and B.1 is one and the same and she had also deposed that as per Ex.B.1 a sum of Rs.30,000/ - has been paid to the plaintiff's son totally goes against the case of the plaintiff. Therefore, the Lower Appellate Court holding that the consideration was not passed as per the pro -note dismissed the appeal, thereby, confirming the judgment and decree of the lower Court, by judgment dated 05.09.2008. Aggrieved against the concurrent finding, the plaintiff has come forward with the Second Appeal.

(3.) WHETHER the Judgment of the Court below is liable to be set aside for non -framing of points of determination ?