VEMBU AMMAL Vs. ESAKKIA PILLAI

JUDGEMENT

(1.) THIS is a petition for revising and setting aside the order of the District Munsiff of Tinnevelly dated 27th September, 1946, in I.A. No. 143 of 1946, a review petition, in S.C.S. No. 99 of 1946. The facts are briefly as follows:

(2.) S .C.S. No. 99 of 1946 was a suit filed by the petitioner Vembu Ammal, against the respondent, Esakkia Pillai, for recovering the amount due on a promissory note, Ex. P. 1, dated 17th Feburary, 1945, for Rs. 190 with subsequent interest and costs. Vembu Ammal had alleged that Esakkia Pillai had written the whole promissory note, Ex. P. 1, himself, and had signed in it, and that the amount was due. She had examined three witnesses, P.Ws. 2 to 4, who swore that Esakkia Pillai had written the promissory note himself and signed in it. Esakkia Pillai had denied that he had written the suit promissory note or signed in it.

(3.) THE learned Counsel for the petitioner urged that the lower court's order in the review petition was passed without jurisdiction and was patently wrong in law and also perverse in fact, and ought to be set aside, and that the original decree in the petitioner's favour, passed on nth June, 1946, must be restored with costs throughout. I agree. The proviso to Section 17(1) of the Provincial Small Cause Courts Act clearly says that an applicant for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree, or compliance with the judgment, as the Court may, on a previous application, made by him in this behalf, have directed. The pro -visions are mandatory, and not merely recommendatory, and the Full Bench ruling in Assan Mohammed Sahib v. : (1920)38MLJ539 , is conclusive on the point. The respondent did not make a previous application, as required by the proviso, or deposit the amount due from him under the decree or obtain an order of Court regarding the security to be furnished by him. Probably, as the learned District Munsiff who reviewed the judgment remarked, the District Munsiff who admitted the review petition without security was not aware of the proviso to Section 17(1) of the Provincial Small Cause Courts Act and, perhaps, the copy of the Provincial Small Cause Courts Act before him was an old one and did not contain this proviso, and he was misled into thinking that no security was required. Whatever it be, the lower Court erred in law in admitting and proceeding with a petition for review without necessary deposit or security, even after the mandatory need for security was brought to its notice. Even its finding on fact, namely that the signature in Ex. P. 1 was not the respondent's, was patently wrong. P.Ws. 1 to 4 had sworn that the respondent had himself written the suit promissory note in their presence. Their evidence on this point was not shaken. The learned District Munsiff was not justified, as a layman, in comparing the signature in Ex. P. 1 with the signature in an unexhibited sale deed of November, 1945, not even filed by the respondent in the trial Court, and in coming to the conclusion that the two signatures were radically different and that the signature in Ex. P. 1 must, therefore, be a forgery. Even a handwriting expert's opinion will not be conclusive on the point. Here, the learned District Munsiff was not a handwriting expert; nor was the sale deed containing the signature which he used for comparing with the signature in Ex. P. 1 exhibited; nor was the signature in the sale deed admitted by this petitioner to be the signature of the respondent. Any comparison of a disputed signature will be only useful when it is done with an admitted signature; otherwise, it will be a case of blind leading the blind. There was no need also for the petitioner to prove consideration when the respondent had not denied the receipt of consideration and raised an issue regarding it.