Madras High Court
Thangarasu vs Arumugam on 24 February, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.02.2012 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL SECOND APPEAL No.908 of 1999 Thangarasu ... Appellant/Plaintiff vs. Arumugam ... Respondent/Defendant Second Appeal filed under Section 100 C.P.C. against the Judgment and Decree dated 18.09.1998 made in A.S.No.32 of 1998 on the file of the Principal District Judge, Cuddalore, preferred against the Judgment and Decree dated 05.12.1997 in O.S.No.709 of 1994 on the file of the Sub Court, Cuddalore. For Appellant : Ms.A.Nilaphar for M/s.R.Subramanian For Respondents : Mr.T.P.Manoharan J U D G M E N T
The Appellant/Plaintiff has projected the present Second Appeal adverting upon the Judgment and Decree dated 18.09.1998 in A.S.No.32 of 1998 passed by the Learned Principal District Judge, Cuddalore.
2. The First Appellate court, viz. the Learned Principal District Judge, Cuddalore, while passing the Judgment in A.S.No.32 of 1998 on 18.09.1998 has opined that "there is inconsistency between the evidences of P.Ws.1 to 4 and that they have not discharged their initial burden of proving execution of Suit Pronote, etc. and in regard to the evidence of D.Ws.2 and 3, it is observed that they only speak of not indicating no means of Plaintiff, etc. and consequently dismissed the Appeal with costs.
3. Before the trial Court, in the main suit, 1 to 5 issues have been framed for determination. On behalf of the Appellant/Plaintiff, witnesses P.Ws.1 to 4 have been examined and Exs.A1 to A16 have been marked. On the side of the Respondent/Defendant, witnesses D.Ws.1 to 3 have been examined and Exs.B1 to B8 have been marked.
4. The trial Court, on appreciation and analysis of the oral and documentary evidence available on record, has come to a definite conclusion that the Appellant/Plaintiff is not entitled to recover the suit amount and also it opined that the plea of the Respondent/Defendant that the Suit Pronote is a fabricated one is a true one and resultantly dismissed the suit with costs.
5. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for determination:
(i) Whether in law the Courts below are not wrong in overlooking that under Section 118 of the Negotiable Instruments Act, when execution of a Pronote is admitted, there is a presumption as to the passing of consideration?
(ii) Whether in law the Lower Appellate Court is right in framing an erroneous point for consideration and not framing proper points as contemplated under Order 41 Rule 31 C.P.C. and as held in 1997 (1) Law Weekly 704 (DB)?
The Contentions, Discussions and Findings on Substantial Question of Law No.1:
6. The Learned Counsel for the Appellant/Plaintiff submits that the First Appellate Court has committed an error to appreciate the fact that the Appellant/Plaintiff owned more than ten acres and that has been admitted by the Village Administrative Officer and further, the Appellant/Plaintiff has requested means to pay the amount and file documents to prove his means.
7. It is the contention of the Learned Counsel for the Appellant/Plaintiff that the trial Court as well as the First Appellate Court have overlooked the admission of execution of the Pronote and in fact the burden shifts on the Respondent/Defendant to disprove passing of consideration. The stand of the Appellant/Plaintiff is that the minor discrepancies in the oral evidence of the Appellant/Plaintiff has weighed with the consideration of the trial Court as well as the First Appellate Court.
8. The Learned Counsel for the Appellant/Plaintiff urges before this Court that the First Appellate Court has failed to appreciate the Appellant/Plaintiff's case in real perspective, which has resulted in a cursory disposal of the case.
9. Per contra, it is the contention of the Learned Counsel for the Respondent/Defendant that both the Courts below have concurrently not believed the version projected by the Appellant/Plaintiff and in fact, the oral and documentary evidence available on record have been looked into properly and upon scrutinizing the materials on record, both the Courts have come to a correct conclusion that the Appellant/Plaintiff has not established his case that the Respondent/Defendant has executed Ex.A1-Suit Pronote, dated 05.12.1993 in his favour and moreover, the First Appellate Court in paragraph 7 of its Judgment in Appeal has opined that there is inconsistency in regard to the evidence of P.Ws.1 to 4 and that the initial onus of proof of execution of the Pronote has not been discharged by the Appellant/Plaintiff and as such, the concurrent findings rendered by the Courts below do not require any interference in the hands of this Court at this distant point of time.
10. The Appellant/Plaintiff in the plaint has averred that the Respondent/Defendant on 05.12.1993 has borrowed a sum of Rs.50,000/- from him towards his family expenses and executed a Pronote for Rs.50,000/- on 05.12.1993 for proper and valuable consideration, agreeing to repay the said amount along with interest at 12% per annum. Inspite of repeated demands made by the Appellant/Plaintiff, the Respondent/Defendant has not paid the amount. Therefore, the Appellant/Plaintiff has issued a notice to the Respondent/Defendant on 26.09.1994 calling upon him to pay the entire amount due on the Pronote. The Respondent/Defendant has issued a reply notice dated 15.10.1994. Hence, the Appellant/Plaintiff has laid a suit for recovery of the suit claim of Rs.54,500/- (Principal sum of Rs.50,000/- and Rs.4,500/- towards interest for the period from 05.12.1993 to 05.12.1994 @ 9% interest per annum) with subsequent interest on Rs.50,000/- at 9% interest per annum from the date of the plaint till the date of Decree and thereafter at 6% interest per annum till realization together with costs.
11. The Respondent/Defendant in the Written Statement has taken a plea that he has no necessity to borrow such a huge amount from the Appellant/Plaintiff who has got no means to advance a sum of Rs.50,000/- and further, he has not met the Appellant/Plaintiff at any point of time and never borrowed any sum from him and has not executed the Suit Pronote.
12. The Respondent/Defendant, in the Written Statement, has come out with a case that he actually borrowed a sum of Rs.2,000/- from one Pon.Subramanian, Karunguzhi Village and the said Pon.Subramanian has taken his signature on a blank stamp paper as security. Furthermore, the Appellant/Plaintiff is the senior paternal Uncle of Pon.Subramanian. Also, a sum of Rs.2,000/- borrowed from Pon.Subramanian has been repaid.
13. According to the Respondent/Defendant he and Pon.Subramanian are inimically disposed of towards each other because of the fact that the said Pon.Subramanian's brother Pon.Ramalingam from Karunguzhi Co-operative Handloom Weavers Society has been terminated about a few months' ago.
14. It is the evidence of P.W.1 (Appellant/Plaintiff) that the Respondent/Defendant on 05.12.1993 has received a sum of Rs.50,000/- at his residence and executed Ex.A1-Pronote dated 05.12.1993 and the said Pronote has been written by one Karunguzhi Govindan, who has been brought by the Respondent/Defendant and also the person who signed in the Ex.A1-Pronote is Kaliyaperumal from Karunguzhi and another witness of Pudur Kooraipettai has also signed in the Pronote.
15. The evidence of P.W.1 proceeds to the effect that he has sold cashewnuts and advanced a loan of Rs.50,000/- to the Respondent/Defendant and he has issued the Respondent/Defendant a notice, dated 26.09.1994, Ex.A2 and Ex.A3 is the reply notice dated 15.10.1994 issued by the Respondent/Defendant and that he is owning 15 acres of punja land with borewell and he used to cultivate paddy, sugarcane and groundnuts and also he is owning 6 acres Cashew Grove and that his property value is Rs.1 Crore and that per year, he used to get an income of Rs.2 = lakhs.
16. P.W.1 (in his cross-examination) has deposed that Pon.Subramanian is not in any way related to him and that when the Respondent/Defendant has demanded money from him, at that time, he had no money and later, he sold Cashews to one Anbazhagan and paid the amount to the Respondent/Defendant and that on 05.12.1973 morning at about 7.00 am, the Respondent/Defendant has come to his house and along with him the Scribe has come to his thatched house and Ex.A1-Pronote dated 05.12.1993 has been written in the Hall of his house and only after writing of the Pronote by Govindan, he has paid the amount to the Respondent/Defendant and further when the Respondent/Defendant has affixed his signature in the Pronote, he paid him with the amount.
17. P.W.2, in his evidence has deposed that Ex.A1-Pronote has been written in the house of the plaintiff (P.W.1) three years before at about 7.30 am in the morning by the Scribe Govindan and that he has seen the Respondent/Defendant affixing his signature over the Revenue Stamp in Ex.A1-Pronote and he has signed as a first witness in the Pronote and as a second witness, one Ramalingam has signed and thereafter, the Scribe has signed.
18. Continuing further, it is the evidence of P.W.2 (Cross-examination) that when he has gone to the residence of the plaintiff (P.W.1) at about 7.00am in the morning, at that time, the Appellant/Plaintiff, the Respondent/Defendant, Scribe Govindan and witness Ramalingam have been there and the paper for writing of the Pronote, Revenue Stamp have been brought by the Respondent/Defendant and only after he has gone to the house of the Appellant/Plaintiff, the Pronote has been written and that the recitals to Ex.A1-Pronote have not been mentioned by the Appellant/Plaintiff and the Respondent/Defendant and the recitals have been written by the Scribe himself and only the Respondent/Defendant after affixing his signature in the Pronote has received the money and only after they have affixed their signature, the Respondent/Defendant has received the amount.
19. P.W.3, in his evidence proceeds to state that the Respondent/Defendant has received a sum of Rs.50,000/- from the Appellant/Plaintiff and has executed a Pronote and in the said Pronote, he has signed as a identifying witness and he has seen the Respondent/Defendant affixing his signature over the Revenue Stamp in the Pronote and also that the Respondent/Defendant has seen him putting the signature and that the Pronote has been written by Govindan.
20. Significantly, P.W.3 (in his cross-examination) has deposed that the recitals of Ex.A1-Pronote have been mentioned by the Appellant/Plaintiff and he has seen the Respondent/Defendant at the time of writing of the Suit Pronote and before that he has not known him.
21. P.W.4 (Scribe), in his evidence has stated that he has written Ex.A1-Suit Pronote, in between 7.00am and 8.00am and the Respondent/Defendnant has affixed his signature in the Revenue Stamp of Pronote and subsequently, the Scribe has affixed his signature which has been witnessed by the Respondent/Defendant.
22. P.W.4 (in his cross-examination), has categorically deposed that the recitals to Ex.A1-Pronote dated 05.12.1993 have been made mention by the Appellant/Plaintiff and he has written those recitals in ink pen.
23. D.W.1, in his evidence has deposed that it is not correct to state that he has received a sum of Rs.50,000/- as loan from the Appellant/Plaintiff and has executed the Suit Pronote in his favour and that he has not met the Appellant/Plaintiff and he received a loan of Rs.2,000/- during 1993 from one Pon.Subramanian and handed over the unfilled white paper by affixing his signature over the Revenue Stamp and that one and half months' later, he has settled the said loan and that the said Pon.Subramanian has not written the unfilled white paper, which he has handed over to him.
24. D.W.1 (in his cross-examination) has deposed that he has lodged a Police Complaint against Pon.Subramanian during 1995 and he has not filed the receipt for lodging a police complaint.
25. D.W.2 (Village Administrative Officer), in his evidence has stated that the Appellant/Plaintiff has one acre of land in S.No.402/4, which is in A-Register and also that he has one acre of land in S.No.17/4, two acres in S.No.18/3, 66 cents in S.No.18/4 and 56 cents in S.No.20/2 in Pudukooraipet and he has given the Chitta Adangal Accounts for Fasili 1405 viz., Exs.B7 and B8.
26. D.W.3, in his evidence has deposed that he has known both the Appellant/Plaintiff and the Respondent/Defendant and that the Appellant/Plaintiff has no means to lend a sum of Rs.50,000/- to the Respondent/Defendant.
27. In support of the contention that once the execution of Pronote has been accepted by the Respondent/Defendant, then presumption under Section 118 of the Negotiable Instruments Act naturally arises thereof, the Learned Counsel for the Appellant/Plaintiff cites a decision of the Honourable Supreme Court reported in 1999 (1) CTC 497 (Bharat Barrel vs. Amin Chand Pyarelal), whereby and whereunder, it is held that the presumption under Section 118 of the Negotiable Instruments Act applies once execution of a Pronote is admitted and further Section 115 of the Indian Evidence Act prescribes special rule of evidence and presumption contemplated that there is one of law.
28. She also seeks aid of a decision of this Court reported in 2008 (2) CTC 177 (R.Kamaiam vs. K.K.Kumarasamy), wherein, it is held as follows :
"On presumption of consideration, burden of proof, etc., that since the execution of Ex.A1 Promissory Note was admitted by the defendant, the presumption under Section 118(a) of the Negotiable Instruments Act would arise that it is supported by consideration and the burden is on the defendant to prove, the non-existence of the consideration by bringing on record the preponderance of probabilities by reference to the circumstances upon which she relies.
In the result, the defendant has not initial burden of proof by showing the non-existence of the consideration and the onus of proof of the legal presumption in favour of the plaintiff could not be shifted and there is no obligation upon the plaintiff to lead evidence to prove his case."
29. The Learned Counsel for the Appellant/Plaintiff draws attention of this Court to yet another decision rendered by this Court reported in 2001 (1) CTC 281 (Mohammed Ali vs. Abdul Sinab), wherein, it is held thus :
"14. On going through the judgments of both the Courts below and other records, I am not able to subscribe to the submission made by the counsel for the appellant. On the side of the plaintiff, three witnesses were examined. P.W.1 is the plaintiff. P.W.3 is one of the assignors. P.W.2 is the attesting witness. It is true that P.W.2 would admit in cross examination that he was not present when the money was passed on to him and he did not witness the defendant putting signature in the promissory notes. But, this admission does not mean that the entire case of the plaintiff is not true.
17. It is relevant to quote para 14 of the decision in 1993 (3) SCC 35 (Bharat Barrel and Drum Manufacturing Company vs. Amin Chand Pyarelal) "Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insistent upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denials of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
18. It is also relevant to note Section 20 of the Negotiable Instruments Act which reads as under:
"Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the cause may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount. Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."
19. From the reading of the above Section, it is clear that Section 20 of the Negotiable Instruments Act is itself authority to the holder of the signed instrument to fill up the blanks and to negotiate the instrument. Thus, once it is admitted that the defendant has signed in the promissory notes, his liability cannot be denied. These principles have been held in Chidambaram vs. P.T. Ponnuswamy, 1995 (2) LW 719 and P.Talamalai Chetty vs. Rathinasamy, AIR 1998 Mad. 23.
20. In the light of the above decisions, it becomes obvious that once it is pleaded and proved that these promissory notes have been signed by the defendant on receiving the considerations, the presumption would arise and the same has to be rebutted by the defendant. Even this rebuttal could be given by direct evidence or by bringing on record the preponderance of probabilities also. In the instant case, the presumption has not been rebutted by the defendant even by the preponderance of probabilities."
30. The strenuous contention of the Learned Counsel for the Appellant/Plaintiff is that the Respondent/Defendant has admitted his signature in Ex.A1-Suit Pronote and therefore, naturally a presumption as per Section 118 of the Negotiable Instruments Act arises in favour of the Appellant/Plaintiff.
31. Further, the stand taken by the Respondent/Defendant is that he has borrowed a sum of Rs.2,000/- only from one Pon.Subramanian of Karunguzhi Village, who has taken his signature on a blank white paper, etc. The Respondent/Defendant has denied the execution of the Suit Pronote. Merely admitting the signature in Ex.A1-Pronote by the Respondent/Defendant will not ipso facto lead one to the conclusion that he has executed the Suit Pronote in favour of the Appellant/Plaintiff. Ordinarily, as per Section 118 of the Negotiable Instruments Act, a Court of Law can presume certain things which are attached to a Negotiable Instrument, till the contrary factors are established. One cannot ignore an important fact that before presumption is drawn in regard to the execution of a Pronote by a party, the execution of the Negotiable Instrument should be admitted or proved by the other side. If the execution of a Pronote is denied by the other side, a person resisting his claim based on the Negotiable Instrument will have to satisfy a Court of Law subjectively as to the manner and proof of execution. Of course, the presumption as per Section 118 of the Negotiable Instruments Act is a rebuttable one. The rebuttable evidence can be projected by means of substantiating or by presumption of fact drawn as per Section 114 of the Indian Evidence Act.
32. In a Suit on pronote, it is not necessary to aver consideration or to prove it. The Court places the burden upon the Respondent/Defendant to prove want of consideration. The presumption in law does not depend upon admissions or denials of the Respondent/Defendant. It is one thing in a given case that the Appellant/Plaintiff has failed to prove particular consideration for a pronote. It is an entirely another thing to say that there is no consideration at all for the pronote.
33. In Law, as soon as the making of a Pronote is established, the presumption operates as per the decision reported in 1978 Ker. L.T. 868 (Kunhiraman vs. V.Padmakshi). If there is some evidence that the transaction is not honest, then the Court of Law can draw an inference that the recitals therein are not true.
34. A debtor may plead and prove actual discharge in a manner or on terms different from those contemplated by or provided for in the documents evidencing the debt. Admission of having signed on a blank paper is no admission of execution of a document. When execution of the Pronote itself is denied and the only fact which is proved is that the thumb impression has been obtained on a blank sheet of paper, then the presumption will not arise as per the decision reported in 1968 All. L.J. 480 (Thakar Lal vs. Ram Adhare).
35. One of the conditions for the presumption to operate as per Section 118 of the Negotiable Instruments Act is that the due and proper execution of the instrument has been proved or admitted. After all, the word 'execution' implies 'conscious execution and knowledge of its contents'.
36. It is to be borne in mind that on consideration, his presumption only contrary appears or atleast appears probable. As a matter of fact, Section 118 of the Negotiable Instruments Act speaks 'for consideration'. Nowhere, it expressly or impliedly refers 'consideration' as mentioned in the Negotiable Instruments Act. Therefore, the term 'for consideration' is quite general and will have to be interpreted in a literal sense.
37. In Second Appeal, the High Court cannot re-appreciate the findings of facts recorded by the Courts below. Also, the findings of fact recorded by a lower Court cannot be reopened in Second Appeal. Moreover, the pure findings of facts rendered by the trial Court and the first Appellate Court cannot be challenged in Second Appeal, in the considered opinion of this Court.
38. As far as the present case is concerned, it is the evidence of P.W.1 (Appellant/Plaintiff) that the Respondent/Defendant has to put only one signature in the Pronote and that the Revenue Stamp affixed in the Pronote is of Re.1 value. But, a cursory perusal of Ex.A1-Pronote dated 05.12.1993 clearly points out that there are two Revenue Stamps of Rs.20 paise denomination value. That apart, the evidence of P.W.3 is that the recitals of Ex.A1-Pronote have not been mentioned by the Respondent/Defendant and they have been written by the Scribe (Govindan) himself.
39. Strangely, the Scribe, in his evidence as P.W.4, has stated that the recitals to Ex.A1-Pronote have been stated by the Respondent/Defendant. Therefore, there is discrepancy in regard as to who has stated the recitals in regard to the execution of Pronote and also as to the writing of the recitals by the Scribe himself. Even in regard to the affixing of Revenue Stamp of Re.1 as seen in Ex.A1-Pronote, there is a discrepancy/variance of evidence adduced by the Appellant/Plaintiff as P.W.1 because of the simple fact that in Ex.A1-Pronote dated 05.12.1993, the Revenue Stamp of 20 paise value is seen.
40. In short, in regard to the manner in which the Suit Pronote came into existence, as to who is the correct person who has recited the versions of Suit Pronote, there is no cogent, consistent, convincing and acceptable evidence of witnesses, i.e. P.Ws.1 to 4. If really, the execution of Ex.A1-Pronote has been made by the Respondent/Plaintiff as projected by the Appellant/Plaintiff, then the witness would have clearly spelt out in a cogent and convincing manner without any doubt. But, in the instant case on hand, the witnesses P.Ws.1 to 4 have not only substantially differed from their evidence in regard to the Revenue Stamps being found in the Suit Pronote and also as to who has recited the details of the Suit Pronote, viz., whether the Appellant/Plaintiff or the P.W.4-Scribe. In this regard, the evidence of P.W.4, Scribe cannot be brushed aside so easily because of the reason that he himself has deposed in his evidence that in the Suit Pronote, recitals have been made mention by the Appellant/Plaintiff.
41. There is no reason to discredit his evidence in this regard by this Court. Therefore, the shroud, cloud or mist surrounding the execution of Ex.A1-Pronote have not been sufficiently discharged on the side of the Appellant/Plaintiff to the satisfaction of this Court. As stated already, the initial onus of execution of the Pronote in favour of the Appellant/Plaintiff will have to be established by the Appellant/Plaintiff himself to the effect that the Pronote has been executed by the Respondent/Defendant. Therefore, the normal presumption as per Section 118 of the Negotiable Instruments Act is that Ex.A1 has been executed by the Respondent/Defendant. In the present case, when it has been rebutted by the Respondent/Defendant, the same has not been proved to satisfy the judicial conscience of this Court and the transaction namely, Ex.A1 Pronote, in the considered opinion of this Court, suffers from want of onus in regard to the execution of the document in issue. Looking at from that perspective, this Court comes to an irresistible conclusion that both the Courts have not committed any material irregularity or patent illegality in overlooking the presumption under Section 118 of the Negotiable Instruments Act and the Substantial Question of Law No.1 is answered against the Appellant/Plaintiff.
The Contentions, Discussions and Findings on Substantial Question of Law No.2:
42. It is the contention of the Learned Counsel for the Appellant/Plaintiff that the First Appellate Court has committed an error in formulating a single point for determination, which is totally contradictory to the evidence and therefore, the same is not in accordance with Order 41 Rule 31 of the Code of Civil Procedure.
43. The Learned Counsel for the Appellant/Plaintiff cites a Division Bench decision of this Court reported in 1997 (1) L.W. 704 (Palanisami Pillai vs. The Commissioner, H.R. & C.E. Department, Madras-34), wherein, it is held that it is the duty of the Appellate court hearing an appeal to raise and set out the points for determination, and to state the reasons for the decision and focus attention of the Court and the parties on the specific and rival contentions arising for determination.
44. It transpires that the First Appellate court in A.S.No.32 of 1998 filed by the Appellant/Plaintiff has framed only one point for consideration, viz., whether the Suit Pronote is a forged one. However, it is to be pointed out that the trial Court in the main Suit has framed one to five issues.
45. As a matter of act, the Judgment of the Appellate court must mention reasons for the decision for arriving at a conclusion. The main aim to assign reasons for deciding the matter by the Appellate Court is that an opportunity has to be provided to a litigant to know and appreciate upon what ground or decision the concerned Court has come to a decision. The ingredients of Order 41 Rule 31 are mandatory. Even when a Judgment of confirmation is passed by the Appellate Court, reasons will have to be spelt out and that a reference to the evidence and to the documents relied upon by the parties will have to be made mention of. Even when a reversal Judgment is delivered by an Appellate Court, it is the predominant duty of the said Court to follow the ingredients of Order 41 Rule 31 of the Code of Civil Procedure.
46. In the instant case on hand, the First Appellate Court has only framed one point for determination. The said point of determination revolves around the issue raised in the main Suit that whether a Suit Pronote is a forged one because of the fact that the Respondent/Defendant has taken a plea to that effect.
47. As per Order 41 Rule 31 of the Code of Civil Procedure, a substantial compliance with the provisions of Rule 31 would be sufficient. Although the First Appellate Court has framed only a primary point for consideration, viz. the Suit Pronote is a forged one, the same by itself will not enable this Court to remand the matter before the concerned Court. The framing of only one point for determination by the First Appellate Court is not fatal to the case because of the simple fact that this Court as an Appellate Forum can go into the merits of the matter in a complete, comprehensive and all pervasive manner. It cannot be said that the power of a Court of Law as per Order 41 Rule 32 and Order 41 Rule 33 of the Code of Civil Procedure are co-exclusive and co-extensive. Therefore, it is desirable for the First Appellate Court to frame necessary points for determination as per the ingredients of Order 41 Rule 31 of the Code of Civil Procedure. To put it shortly, the Judgment of the First Appellate Court should satisfy the necessary ingredients of Order 41 Rule 31 of the Code of Civil Procedure, viz. (i) points for determination (ii) the decision thereon; (iii) the reasons for the decision; and (iv) where the decree appealed from is reversed or varied, the relief to which the Appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
48. It cannot be gainsaid that in a case open to Appeal, the Court of Law may record its findings on all important issues so as to avoid a remand in case the Court of Appeal disagrees with any of the findings as per the decision reported in AIR 1950 FC 140 (Rayarappan vs. Madhavi Amma).
49. Viewed in that perspective, it is held by this Court that it cannot be said that the First Appellate Court has framed an erroneous point for consideration although it has framed a point for determination, which goes to the crux or the root of the controversy involved between the parties and the non-framing of necessary points by the First Appellate Court in the instant case on hand will not preclude this Court from going into the merits of the matter and render its decision and accordingly, the second Substantial Question of Law is so answered.
50. In the result, the Second Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree of the First Appellate Court dated 18.09.1998 passed in A.S.No.32 of 1998 and that of the trial court dated 05.12.1997 in O.S.No.709 of 1994 are confirmed for the reasons assigned in this Appeal.
Index : Yes/No
Internet : Yes/No 24.02.2012
abe
To :
1. The Principal District Judge, Cuddalore.
2. The Sub Court, Cuddalore.
M.VENUGOPAL,J.
Abe
Pre-delivery Judgment in
S.A.No.908 of 1999
Dated: 24.02.2012