K CHINNASAMY Vs. SIVAGAMIAMMAL

JUDGEMENT

(1.) THE defendant in the lower Court is the appellant. Plaintiff filed a suit for recovery of the amount due on the basis of a promissory note stated to have been executed by the defendant on 04. 02. 88 (EX. A1 ). The defendant in the written statement has denied the signature in the promissory note and also made certain other defence including that there has been a previous enmity between the husband of the plaintiff and the defendant and taking advantage of the same, the suit came to be filed. The trial Court dismissed the suit on the basis that the plaintiff has failed to prove the genuineness of the signature under Ex. A1 by referring to the handwriting expert especially when the defendant has denied the signature in the promissory note Ex. A1 in the written statement filed in the suit and also in the reply notice marked as Ex. A4. The trial Court has also made a reference that on comparison of the signature in the written statement and in respect of Ex. A1 there is slight difference and the trail Court has ultimately dismissed the suit. As against that the plaintiff has filed an appeal. The appellate Court after considering the evidence adduced on behalf of the plaintiff has come to the conclusion that the plaintiff has in fact proved the execution of Ex. A1 and accordingly, the first appellate Court allowed the appeal and the suit was decreed. It is as against the said judgment of the first appellate Court, the defendant has filed the present second appeal.

(2.) AT the time of admitting the second appeal, the following substantial question of law is framed; whether the lower appellate Court is justified in ignoring the contradictory deposition of PW2 and PW3 regarding the place of execution of Ex. A1?

(3.) THE learned counsel appearing for the appellant would submit that once under Ex. A4 reply notice, the defendant has denied the signature in the promissory note and also denied having borrowed any amount at the earliest point of time, it was the duty of the plaintiff to prove the signature under EX. A1 promissory note by sending it to an handwriting expert. On the other hand, the learned counsel would submit that there is patent contradiction in the deposition of PW2 and PW3 who are the scribe as well as the witnesses of Ex. A1. Further, the learned counsel would submit that in respect of the place of execution of Ex. A1, there has been contradictions in the evidence between PW2 and PW3 which is vital affecting the validity of the Ex. A1 as such.