Madras High Court
Panneerselvam vs Bhoopathi on 5 July, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.No.475 of 2019 &
C.M.P.No.16426 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.07.2021
Coram
THE HONOURABLE MR. JUSTICE M.SUNDAR
S.A.No.475 of 2019
&
C.M.P.Nos.16426 & 7687 of 2019
Panneerselvam .. Appellant
Vs.
Bhoopathi .. Respondent
Second Appeal filed under Section 100 of the Code of Civil Procedure,
1908 to set aside the judgment and decree dated 27.02.2018 made in
A.S.No.30 of 2016 on the file of the Sub-ordinate Judge at Tirupattur, Vellore
District confirming the judgment and decree dated 28.03.2016 made in
O.S.No.85 of 2012 on the file of the Principal District Munsif Court,
Tirupathur, Vellore District.
For Appellant : Mr.S.Udayakumar
For Respondent : Mr.V.V.Sathya
1/27
S.A.No.475 of 2019 &
C.M.P.No.16426 of 2019
JUDGMENT
Captioned main second appeal i.e., S.A.No.475 of 2019 has been listed before this Virtual Court under the cause list caption 'NOTICE OF MOTION'.
2. Mr.S.Udayakumar, learned counsel of M/s.Karan and Uday (Law Firm) on behalf of appellant (defendant in the Court of first instance i.e., trial Court) and Mr.V.V.Sathya, counsel on record for lone respondent (plaintiff in the Court of first instance i.e., trial Court) are before this Virtual Court.
3. The proceedings of Hon'ble predecessor Judge on 27.03.2019 when the captioned second appeal and C.M.P were first listed reads as follows:
'Notice to the respondent returnable by 24.04.2019. Private notice is also permitted.
Post on 24.04.2019.
There shall be an order of interim stay till then.'
4. A perusal of the above proceedings makes it clear that no substantial question of law has been formulated and the second appeal has not been 2/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 admitted. This Court is informed that the captioned second appeal has therefore been listed now under the cause list caption 'NOTICE OF MOTION'.
5. As of today, the age of the lis which has led to the captioned second appeal is 9 years and in a few i.e., less than eight months from now it will be a decade old as the plaint was presented on 08.03.2012 by the respondent before this second appeal Court, who shall hereinafter be referred to as 'plaintiff' for the sake of convenience and this plaint was taken on file as O.S.No.85 of 2012 on the file of 'Principal District Munsif's Court, Tirupathur, Vellore District' (hereinafter 'trial Court' for the sake of convenience). In this suit, lone appellant before this second appeal Court, who shall hereinafter be referred to as 'defendant' for the sake of convenience and clarity was arrayed as the lone defendant.
6. Facts are fairly straight and simple. Plaintiff claimed a sum of Rs.63,500/- (Rupees Sixty Three Thousand Five Hundred only) together with future interest at the rate of 9% per annum. In other words, it is a money suit. This money suit is on the foot of a promissory note dated 09.03.2009 (Ex.A1). This promissory note is for a sum of Rs.50,000/-. 3/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019
7. The suit was resisted by the defendant by filing a written statement dated 13.09.2012. A careful perusal of the written statement of the defendant running to 6 pages and 18 paragraphs brings to light that the burden of the song of the defendant's pleadings is, Ex.A1 promissory note is fabricated. It is the specific case of the defendant that he had initiated some other legal proceedings against the plaintiff with regard to sale of a property, which according to him, is a joint family property inter alia by issuing lawyer's notice dated 16.08.2014 (received by the plaintiff on 17.08.2014) followed by a suit in O.S.No.42 of 2014. The burden of song of the defendant's pleading in the written statement is, plaintiff, who was infuriated owing to the other civil proceedings initiated by the defendant, has fabricated Ex.A1 and has filed the suit. It is also the further case of the defendant (as can be culled out from the pleadings in the written statement) that the defendant had retired from service towards the end of year 2008 and in the initial months of year 2009 he had received terminal benefits of over Rs.10 lakhs. Besides this, it has also been pleaded that the defendant is receiving pension of over Rs.15,000/- and therefore, there is absolutely no need or necessity for the defendant to borrow Rs.50,000/- from the plaintiff. In sum and substance, 4/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 the defendant flatly disputed the promissory note and the transaction as well as the execution of the promissory note.
8. Trial Court framed two issues and an additional issue and a perusal of the issues and additional issue make it clear that the additional issue, which has been shown as Issue No.3, turns on whether Ex.A1 pronote is valid and whether an alteration therein buttresses defendant's case and this is the crux and gravamen of the lis between the parties.
9. In the trial Court, plaintiff examined himself as PW1 and one K.Ramachandran, who is an attesting witness in Ex.A1 pronote, has been examined as PW2. Exs.A1 to A6 have been marked as exhibits on the side of plaintiff. On the side of defendant, the lone defendant examined himself as DW1, one Azhagesan, who is a forensic expert has been examined as DW2 and one Gnanasambantham, a Bank Manager has been examined as DW3 and Exs.B1 to B3 have been marked on the side of the defendants. Besides this, Exs.X1 and X2 as well as Exs.C1 and C2 have also been marked. Exs.X1 is the Primary Education Officer's report and Ex.X2 is the bank statement. Ex.C1 is the forensic expert's report and Ex.C2 is the reasons supporting the same.
5/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019
10. After full contest, trial Court decreed the suit in and by judgment and decree dated 28.03.2016 primarily on the ground that it is not the pleadings of defendant that the pronote was executed by him when plaintiff and defendant were admittedly carrying on chit business together, trial Court considered that the alteration with regard to numeric 19 alone in a printed pronote is of no consequence and the suit was decreed. The defendant carried the matter in appeal by way of a regular first appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity) vide A.S.No.30 of 2016 on the file of 'Subordinate Judge's Court, Tiruppathur, Vellore District ('first Appellate Court' for the sake of brevity) which after full contest dismissed the appeal in and by judgment and decree dated 27.02.2018 and these concurrent decrees have brought the defendant to this Court vide captioned second appeal.
11. Learned counsel for defendant (appellant before this second appeal Court) contended that material alteration in a pronote is one where both parties to the pronote should endorse the same and absent such endorsement the Courts below i.e., trial Court and first Appellate Court fell in error in over looking material alteration and decreeing the suit and 6/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 confirming the decree respectively. Learned counsel drew the attention of this Court to Ex.A1 as well as another blank pronote (template), which is Ex.B3 and attempted to demonstrate that numeric 19 has been altered as 20 to make the year 2009 for bringing the pronote within the period of limitation qua suit in trial Court.
12. In response to the above submission, learned counsel for plaintiff submitted that mere correction of '19' as '20' owing to change of millennium (that too when a printed standard format has been used to execute Ex.A1) will not tantamount to a material alteration and therefore, there is no ground to interfere with the judgments and decrees of the Courts below.
13. Learned counsel for defendant in reply drew the attention of this Court to pleadings i.e., written statement of the defendant and though no case laws were cited in the first round of submissions, for the first time in reply placed reliance on AIR 1966 AP 267 [Allampati Subba Reddy alias Subbarami Reddy Vs. Neelapareddi Ramana Reddy], AIR 2004 (Mad) 436 [N. Rengasamy Vs. S. Ganesan] and a judgment of this Court dated 19.11.2014 in S.A.No.1209 of 2011. A careful perusal of the judgment of the trial Court reveals that the two AIR case laws have been considered by the 7/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 trial Court in paragraph 12 of its judgment. These two case laws have been pressed into service for the proposition that the experts opinion is not final. This may not be the issue on which the matter now turns as it turns on the pleadings of the defendant. Therefore these two case laws do not come to the aid of protagonist of captioned second appeal. With regard to unreported judgment i.e., judgment in S.A (MD).No.1209 of 2011 dated 19.11.2014 rendered by a Hon'ble single Judge of this Court, a perusal of facts therein, more particularly facts as captured in Paragraph 3 of the judgment, make it clear that it was a case where the defendants pleaded complete ignorance about the identity of the plaintiff's wife and the pleadings of the defendant is that it was forged by plaintiff who is a drug addict. A further perusal of that judgment makes it clear that it was not a case where the signature of the defendant in the pronote was found to be that of the defendant and it is not a case which ran contrary to the pleadings.
14. Be that as it may, paragraph 3 of the said judgment reads as follows:
'3. The suit has been resisted by the defendants. Second respondent filed the written statement, which has been adopted by the first defendant. They pleaded complete ignorance about the 8/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 identity of plaintiff's late wife. Suit promissory note is a rank forgery. It was forged by plaintiff, a fraud and a drug addict. The promissory note is afflicted with material alteration. This is the gist of their case.'
15. Therefore, it is clear that aforementioned unreported judgment does not come to the aid of the defendant as it is clearly distinguishable on facts. In this regard this Court deems it apposite to remind itself of the pronouncement of a Constitution Bench of Hon'ble Supreme Court in the celebrated Padma Sundara Rao's case [Padma Sundara Rao Vs. State of Tamil Nadu case reported in (2002) 3 SCC 533] and relevant paragraph in Padma Sundara Rao case is paragraph 9 and the same reads as follows:
'9.Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board [(1972) 2 WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.' 9/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019
16. This Court now proceeds to discuss the other aspects of the matter and give its dispositve reasoning.
17. The pleading of the defendant, as already alluded to supra, are very important in the case on hand and pleadings, as contained in paragraphs 9, 10 and 11 of the written statement, are significant and the same read as follows:
'9. cz;ikapy; ,g;gpujpthjpf;Fk.; thjpf;F 1998-k; Mz;oy; gpur;rid Vw;g;gl;lgpd; ,g;gpujpthjp. thjpaplk; ve;jj; bjhlh;g[k; itj;Jf;bfhs;stpy;iy/ vdnt ,jis jtwhf gad;gLj;j epidj;j thjp.
,g;gpujpthjpf;Fk;. mthpd; rnfhjuh;fs; Rg;g[uhaY eha[L. uFgjp Mfa K:tUf;Fk; Tlg;gl;L fpuhkj;jpy; Tl;lhf ghj;jpag;gl;l Tl;Lf;FLk;g brhj;jpy; 0/54 brz;l;il ,e;j thjp. ,g;gpujpthjpf;F bjhpahky; ,g;gpujpthjpapd; rnfhjuh; uFgjpa[k; fpiuak;
bgw;Ws;shh;/ nkw;go ghfk; gph;f;fg;glhj
Tl;Lf;FLk;g brhj;ij ,e;j thjp th';fpaJ
bry;yhJ vd;gjhy; ,e;j gpujpthjp nkw;go thjpf;F 16/08/11y; tHf;fwp"h; mwptpg;g[ mDg;gpdhh;/ mjid ,g;gpujpthjp 17/08/11-j; njjpad;nw bgw;Wf;bfhz;lhh;/ ,g;gpujpthjp jdf;Fhpa ghfj;ij 17/08/2011e; njjpad;W bgw;Wf;bfhz;lhh;/ ,g;gpujpthjp jdf;Fhpa ghfj;ij nfhhp mthpd; rnfhjuh;fs;
10/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 kPJk;. ,e;j thjpapd;; kPJk; ,g;gpujpthjp O.S.No.42/2012 vd;w tHf;if bjhlh;e;Js;shh;/ ,jdhy;/ fhH;g[zh;rr ; pa[k;. tPz; tpnuhjk; bfhz;Lk; ,g;gpujpthjpia gHpth';f ntz;Lk; vd;gjw;fhf ,e;j tHf;fpid jhf;fy; bra;Js;shh;/ vdnt ,t;tHf;F js;Sgoahf ntz;oajhFk;/
10/ ,g;gpujpthjp thjpf;F tHf;fwp"h; mwptpg;g[ mDg;gpaJ 16/08/11e; njjp mjid ,e;j thjp 17.08.11y; bgw;Wf;bfhz;lhh;/ ,jdhy;. nfhgk;
bfhz;l thjp. ,g;gpujpthjpf;F gpur;rid
juntz;Lk; vd;gjw;fhf flDWjpr; rPlo
; id
nkhroahf jhahhpj;J 23.08.11y; tHf;fwp"h; mwptpg;g[ mDg;gpdhh;/ ,g;gpujpthjp tHf;fwp"h; mwptpg;g[ mDg;gpa gpwF jhd; thjp tHf;fwp"h; mwptpg;g[ mDg;gpdhh;/ Mf thjp tPz; tpnuujk; ghuhl;o ,e;j tHf;fpid jhf;fy; bra;Js;shh;/ 11/ ,g;gpujpthjp tzf;fKld; TwtjhtJ ,e;ePjpkd;wj;jpd; mDkjpapld; ,g;gpujpthjp flDWjpr; rPlo ; id Ma;tpl;ljpy; nkw;go flDWjpr;
rPlo ; y; cs;s ifbaGj;J ,e;j gpujpthjpapd;
ifbaGj;jpy;iy vd;W bjhpatUfpwJ/ thjpna
nkhroahf ,g;gpujpthjpapd; ifbaGj;jpid ,l;L
tHf;F jhf;fy; bra;Js;shh;/ nkYk;. flDWjpr;
rPlL
; kpft[k; fpHpe;j epiyapy; kpfg;giHajhf epwk;
khwp cs;sJ/ mjhtJ flDWjpr; rPlL
; Rkhh; 12-
11/27
S.A.No.475 of 2019 &
C.M.P.No.16426 of 2019
Mz;LfSf;F Kw;gl;ljhf cs;sJ/ gy
Mz;LfSf;F Kw;gl;l fhfpjk; vt;thW epwk;
khWnkh mt;thnw ,e;j flDWjpr; rPl;Lk; epwk;
khwp cs;sJ/ nkYk;. ,g;gpujpthjp
ifbaGj;Jnghy; nkhroahf ,lg;gl;l ifbaGj;J
giHajhft[k;. flDWjpr; rPl;oy; vGjg;gl;l
thrf';fs; g[jpajhft[k; cs;sJ. Mf nkw;go
jhth flDWjpr; rPl;L thjpahy; nkhroahf
jahhpf;fg;gl;lbjd;W bjs;sj;bjspthfpd;wJ/ (underlining made by this Court to supply emphasis and highly)
18. Underlined portion of the pleading of the defendant makes it clear that it is the clarion case of the defendant made with specificity that the plaintiff has forged the signature of the defendant in Ex.A1 (thjpna nkhroahf ,g;gpujpthjpapd; ifbaGj;jpid ,l;L tHf;F jhf;fy; bra;Js;shh;).
19. This takes to the points for determination that have been framed by the first Appellate Court. The points for determination framed by the first Appellate Court have been captured in Paragraph 9 of the judgment of the first Appellate Court and the same read as follows:
'9.,k;nky;KiwaPl;oy; jPh;khdpf;fg;go ntz;oa gpur;rpidfs;:12/27
S.A.No.475 of 2019 & C.M.P.No.16426 of 2019
1. vjph;nky;KiwaPl;lhsuhy; jhf;fy;
bra;ag;gl;Ls;s 09/03/2009 njjpapl;l flDWjpr; rPlL ; nghypahdjh?
2. vjph;nky;KiwaPl;lhsuhy; jhf;fy;
bra;ag;gl;Ls;s 09/03/2009 njjpapl;l flDWjpr; rPlL ; vjph;nky;KiwaPl;lhsuhy; Material Alteration bra;ag;gl;L tHf;fpy; jhf;fy; bra;ag;gl;Ls;sj? 3/ gpujpthjp / nky;KiwaPl;lhsuhy; jhf;fy;
bra;ag;gl;Ls;s nky;KiwaPl;L tHf;F
mDkjpf;fj;jf;fjh?
4. tprhuiz ePjpkd;w m/t/vz; 85 / 2012y;
fle;j 28/03/2016 md;W jpUg;gj;J}h; khtl;l chpikapay; ePjpkd;wj;jpy; tH';fg;gl;l jPh;g;g[ kw;Wk; jPh;g;ghizuj;J bra;aj;jf;fjh?
5. nky;KiwaPl;lhsUf;F fpilf;f ntz;oa ,ju ghpfhu';fs; vd;d?'
20. A perusal of points for determination which are obviously under Order XLI Rule 31 of CPC, makes it clear that the first Appellate Court has neatly and nicely captured the crux and gravamen of the lis. In answer to points 1 and 2, the reasons and the basis on which the first Appellate Court confirmed the decree of the trial Court are articulated, this is in paragraphs 13/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 13 and 14, of judgment of first Appellate Court and the same read as follows:
'13. nkw;go tHf;fpy; M$uhd gpujpthjp tHf;F flDWjpr; rPlL ; nghypahdJ vd;W bjhptpj;j fhuzj;jhy; ,t;tHf;F flDWjpr; rPl;lhdJ jla mwptpapay; ghpnrhjidf;F cl;gLj;jg;gl;Ls;sJ/ nkw;go jla mwptpapay; Jiw Jiz ,af;Feh;
gp/th/rh/2 Mf tprhhpj;Jbfhz;L jdJ Kjy; kw;Wk; FWf;F tprhuiz rhl;rpaj;jpy; th/rh/M/1 Mtzkhd flDWjpr; rPl;oy; mr;rplg;gl;l tUlk; kl;Lk; ,urhadk;
bfhz;L mHpf;fg;gl;Ls;sJ vd;Wk; Mdhy; mjid
jtpu kw;w r';fjpfs; vJt[k; khw;wg;glnth.
mHpf;fg;glnth ,y;iybad;Wk; mnj nghd;W nkw;go
th/rh/M/1 flDWjpr; rPll
; y; cs;s ifbahg;gk;
,t;tHf;F gpujpthjpapDila ifbahg;gk; jhd; vd;Wk;
jdJ Ma;tpy; bjhpe;Jf; bfhz;ljhf
rhl;rpakspj;Js;shh;/ vdnt thjpf;F. gpujpthjp ve;j
fhyj;jpYk; flDWjpr; rPl;L
vGjpf;bfhLf;ftpy;iybad;W fl;rp bra;J te;jnghjpYk; thjpahy; ,t;tHf;F jhf;fy; bra;ag;gl;Ls;s th/rh/M/1 flDWjpr; rPl;oy; cs;s ifbahg;gk; gpujpthjpapDilaJ jhd; vd;gJ gp/th/rh/2 rhl;rpaj;jpd; K:ykhf bjhpe;Jf;bfhs;s Kofpd;wJ/ 14/ th/rh/M/1 Mtzj;jpy; tUlk; mr;rplg;gl;Ls;s gFjpapy; Vw;fdnt ,Ue;j ,uz;L vz;fs;
mHpf;fg;gl;Ls;sJ vd;gij nkw;go Mtzj;ij
ghh;f;Fk;nghnj bjhpe;Jf;bfhs;s Kofpd;wJ/ Mdhy;
14/27
S.A.No.475 of 2019 &
C.M.P.No.16426 of 2019
mjid Material Alteration vd;W gpujpthjpapd; jug;gpy;
bjhptpf;fg;Lk; r';fjpahdJ Vw;g[ilajhf ,y;iy/
fle;j 09/03/2009 y; gpujpthjp. thjpaplk; fld; bgw
ntz;oa mtrpak; ,y;iybad;Wk;/ gpujpthjpf;F 2008 ? 2009 k; Mz;oy; U:/10.00.000-?f;F nky; Xa;t{jpa gad; fpilj;jJ vd;W bjhptpj;jpUe;j nghjpYk; nkw;go gp/th/rh/2 Mf rhl;rpakspj;Js;s jpUg;gj;J}h; ghuj ! ;nll; t';fp nkyhsh; bjhptpj;Js;s rhl;rpaj;jpd; mog;gilapYk;. mtuhy; jhf;fy; bra;ag;gl;Ls;s Ex.X2 Mtzj;jpd; mog;gilapYk; gpujpthjp bjhptpg;gJ nghd;W 2008?09 k; Mz;oy; gpujpthjpf;F ,t;tHf;F flDf;F mjpfkhd bjhif gpujpthjpapd; if trk;
,y;iy vd;gij bjhpe;Jf;bfhs;s Kofpd;wJ/ th/rh/M/1 y; Fwpg;gplg;gl;Ls;s mry; bjhif U:/50.000-? vd;w fhuzj;jpdhy; nkw;go bjhifia tpl mjpfkhd bjhifia gpujpthjp gpur;rpidf;Fhpa fhy fl;lj;jpy; iftrk; itj;jpUe;jhy; mtuhy; bjhptpf;fg;gLk; r';fjp Vw;gi [ lajhf ,Ue;jpUf;Fk;/ th/rh/M/1 Mtzj;ij bghWj;j tiuapy; jFe;j kW gaDf;Fj;jhd; vGjpf; bfhLf;fg;gl;lJ vd;W th/rh/1 Mf tprhhpj;Jf; bfhz;L thjpa[k;. th/rh/2 Mf tprhhpf;fg;gl;l uhkr;re;jpuDk; bjspthd tifapy; rhl;rpakspj;Js;shh;fs;/ nkYk; gpujpthjpapd; jug;gpy; tprhhpf;fg;gl;l gp/th/rh/2 kw;Wk; gp/th/rh/3 d; rhl;rpa';fns gpujpthjpapd; fl;rp bgha;ahdJ vd;gij btspg;gLj;jf;Toa tifapy;
cs;sJ/ vdnt gp/th/rh/1 Md gpujpthjpapd;
rhl;rpaj;ij kl;Lk; itj;Jf;bfhz;L ,t;tHf;F
15/27
S.A.No.475 of 2019 &
C.M.P.No.16426 of 2019
flDWjpr; rPlL
; jFe;j kW gaDf;F
vGjpf;bfhLf;fg;gltpy;iybad;W Kot[ bra;a ,ayhJ/
nkYk; th/rh/M/2 tHf;fwp"h; mwptpg;gpid th/rh/M/3
Mtzj;jpd; mog;gilf;F gpujpthjp bgw;Wf;bfhz;L
th/rh/M/4 gjpy; mwptpg;gpid gpujpthjp thjpapd;
tHf;fwp"Uf;F mDg;gpa[ss
; hh;/ nkw;go gjpy; mwptpg;ig
bgw;Wf;bfhz;l thjpapd; tHf;fwp"h; th/rh/M/5
tHf;fwp"h; mwptpg;gpid gpujpthjpapd; tHf;fwp"Uf;F
mDg;gp xU Fwpg;gpl;l tpyhrj;jpy; (thjpapd;
tHf;fwp"h; mYtyfk;) te;J gpujpthjpa[k;. mtuJ
tHf;fwp"Uk; flDWjpr; rPl;oid ghh;itapl;Lf;
bfhs;syhk; vd;W bjhptpj;Js;shh;/ nkw;go tHf;fwp"h;
mwptpg;gpid th/rh/M/6 d; mog;gilf;F gpujpthjpapd;
tHf;fwp"h; bgw;Wf;bfhz;l gpd;dUk;. thjpapd;
tHf;fwp"h; mYtyfj;jpw;F brd;W tHf;F flDWjpr;
rPl;oid ghh;jj
; jhf ahbjhU rhl;rpaKk; gpujpthjp
mspf;ftpy;iy/ nkYk; gpujpthjp mtuJ FWf;F
tprhuizapy; bjhptpj;Js;s r';fjpfisg; ghh;fF ; k;nghJ th/rh/M/1 Mtzk; jFe;j kWgaDf;Fj;jhd;
gpujpthjpahy; thjpf;F vGjpf;bfhLf;fg;gl;Ls;sJ vd;gij bjhpe;Jf;bfhs;s Kofpd;wJ/ vdnt gpujpthjp jug;gpy; jhf;fy; bra;ag;gl;Ls;s gp/th/rh/M/1 Kjy; gp/th/rh/M/3 tiuapyhd Mtz';fspd; mog;gilapy; th/rh/M/1 Mtzk; nghypahdJ vd;W gpujpthjpahy;
bjhptpf;fg;gLk; fl;rpahdJ Vw;gi
[ laJ my;y/ vdnt
tHf;F flDWjpr; rPl;L jFe;j kWgaDf;Fjhd;
gpujpthjpahy; thjpf;F vGjpf;bfhLf;fg;gl;lJ vd;Wk;.
16/27
S.A.No.475 of 2019 &
C.M.P.No.16426 of 2019
Mjpy; vt;tpjkhd Material Alteration ,y;iybad;Wk;.
nkw;go gpur;rpidfs; 1 kw;Wk; 2 vjph;
nky;KiwaPl;lhsh;- thjpf;F Mjuthf Kot[
bra;fpd;nwd;/'
(underlining made by this Court to
supply emphasis and highlight)
21. The depositions of PW1 and PW2 as well as DW1 to DW3 have been placed before this Court. For an illustration, if the evidence of DW3 is considered, one cannot find fault with the first Appellate Court in returning a finding that the evidence runs into or runs contrary to the pleadings of the defendant or in other words, the stated position of the defendant. For the sake of convenience, deposition of DW3, who is a Bank Officer, who was examined for the purpose of showing the financial position of defendant or bank balance of the defendant on the date of lis is though terse, cogent and therefore this Court is unable to convince itself to believe or persuade itself to hold that there is any perversity in the finding returned by the first Appellate Court. Deposition of DW3 is as follows:17/27
S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 18/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019
22. This takes us to the issue of substantial question of law as the captioned second appeal is under Section 100 of CPC. Learned counsel for defendant, adverting to the memorandum of grounds of appeal and more particularly paragraph 10 thereat submitted that the four questions which have been adumbrated therein are substantial questions of law and they arise in the case on hand. Questions proposed read as follows:
'a) Whether the Promissory Note is forged, Concocted or Fabricated Document.
b) Whether any Material alteration in the Promissory Note 19/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019
c) Werther Decree and Judgments of court below are substainable after both courts founds that there is an material alteration in the Promissory Note.
d) Whether the court below is correct in decreeing the suit by only taken into consideration of the Expert opinion with regard to signature of the defendant in the report Mentioned in Q1 and Q2 however by Omitting Q3 the Material Alteration made by the Plaintiff erasing the year in the Promissory Note.
23. The expression 'substantial question of law' occurring in Section 100 CPC has been elucidatively explained in a long line of authorities and a catena of case laws starting from the celebrated Sir Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314] wherein a Constitution Bench of Hon'ble Supreme Court affirmed the view taken by a Hon'ble Full Bench of this Court in Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1951 Madras 969 (FB)]. Suffice to say that this is the obtaining position of law as Hon'ble Supreme Court as recently as on 27.08.2020 in Nazir Mohamed case [Nazir Mohamed Vs. J.Kamala reported in 2020 SCC OnLine SC 676] reiterated this legal position. The most relevant paragraphs are 20/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 paragraphs 29, 30, 35 to 37 and the same read as follows:
' 29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1, where this Court held:— “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”
30. In Hero Vinoth v. Seshammal , this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.'
35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall 21/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis.
This proposition finds support from Santosh Hazari v. Purushottam Tiwari .
36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.
37. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law.Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is 22/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the wellrecognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.' 23/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019
24. If the above said position/determinants or concomitants which go to make a substantial question of law as occurring in Section 100 CPC are applied, this Court has no hesitation in coming to the conclusion that the above questions do not qualify as substantial questions of law much less do they arise in the case on hand as there is nothing debatable or nothing res integra or there is nothing to demonstrate that a settled principle of law has been over looked. Approach of courts below that mere change of '19' to '20'in a printed pronote owing to change in millennium cannot be construed as material alteration as signature of defendant has been admitted is an approach to which this Court cannot take exception warranting interference in a Section 100 CPC legal drill. Therefore, this is not a case of misconstruction of a document or a wrong application of a principle of law in construing a document. Therefore, this facet of substantial question of law also flattened in the case on hand. To be noted, the case laws which were pressed into service have already been discussed and dispositive reasoning has also been set out supra.
25. This Court now reverts to the trajectory the captioned second appeal has taken. As already alluded to supra, when a captioned second 24/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 appeal was first listed before this Court on 27.03.2019, notice was ordered without formulation of substantial question of law and to be noted, this order/proceedings has been extracted and reproduced supra. Therefore, this Court tested whether there is a case for admission and whether any substantial question of law arises. In the light of the narrative thus far, discussion and dispositive reasoning it is clear that this Court has no hesitation in holding that no substantial question of law arises.
26. This takes us to Kirpa Ram principle being principle laid down by Hon'ble Supreme Court in Kirpa Ram Vs. Surendra Deo Gaur and others reported in 2020 SCC Online SC 935 wherein the principle that a second appeal can be dismissed at the admission stage without formulating a substantial question of law if none arises has been reiterated. Drawing inspiration from Kirpa Ram principle, this Court, in the light of narrative thus far, discussion and dispositive reasoning, deems it appropriate to dismiss captioned second appeal holding that no substantial question of law arises in the case on hand. Captioned second appeal is dismissed.
Considering the trajectory of the matter and the nature of the submissions 25/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 made before this Court, there shall be no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
05.07.2021 Speaking order: Yes/No Index: Yes/No gpa To
1. The Sub-ordinate Judge Tirupattur, Vellore District
2. The Principal District Munsif Court, Tirupathur, Vellore District.
26/27 S.A.No.475 of 2019 & C.M.P.No.16426 of 2019 M.SUNDAR.J., gpa S.A.No.475 of 2019 & C.M.P.Nos.16426 and 7687 of 2019 & 05.07.2021 27/27