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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/01/2009 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN Second Appeal No.21 of 2009 M. Nagarathinam ... Appellant Vs S. Alfonsa Mary ... Respondent Prayer Second Appeal filed by the Appellant against the Judgement and Decree dated 06.12.2006 made in A.S.No.33 of 2006 on the file of the Principal District Sessions Judge, Theni, confirming the Judgment and Decree dated 24.02.2005, made in O.S.No.30 of 2001 on the file of the Sub-ordinate Judge,at Periyakulam. !For Appellant ... Mr. G.Purushothaman ^ :JUDGMENT
This Second appeal is disposed of at the admission stage itself.
2.The suit in O.S.No.30 of 2001 has been filed by the respondent/plaintiff for recovering a sum of Rs.2,24,420.50/- with interest. The case of the plaintiff is that the defendant borrowed a sum of Rs.1,00,000/- on 17.07.1998 and executed two promissory notes of Rs.50,000/- each on the very same day. Again on 30.10.1998, the defendant borrowed a sum of Rs.50,000/- and executed a pronote on that day. When the money was demanded by the Plaintiff the same was not repaid and the notice sent by her on 11.01.01 was also not replied by the dependant. Hence the suit has been filed for the recovery of the above said amount.
3. A Written statement was also filed by the defendant, wherein the defendant denies the allegation made in the plaint. The case of the defendant is that the plaintiff is having a Marikolundu oil company and for that business, the plaintiff approached the defendant to plant Marikolundu in her land, and to sell the flowers to the plaintiff and for which a sum of Rs.50,000/- was paid by the plaintiff as advance.
4. By way of security, the plaintiff wanted the defendant to take a pro- note containing her signature. Accordingly a pronote was given by the defendant . The defendant later on supplied forty tons of Marikolundu oil to the plaintiff at the cost of Rs.17,000/- per ton. When the defendant approached the plaintiff and demanded the balance amount, the plaintiff was giving false reasons and delayed the payment. When the plaintiff made further requests for the balance amount, the plaintiff seemed to have created two pronotes and filed the suit. Hence the defendant prayed for the dismissal of the suit.
5. On the basis of the above pleadings, the trial Court framed the following issues.
"1) Whether the Pronote is genuine?
2) Whether the plaintiff is entitled to get suit amount?
3) What are all the other reliefs the plaintiff is entitled to?"
6.The plaintiff examined herself as P.W.1 and exhibits A2 to A5 were marked. On the side of the defendant, no body was examined and no documents were also produced.
7.The Trial Court found that the Pronotes were executed by the defendant. Therefore on the basis of the oral evidence of P.W.1 and P.W.2 and Exhibits A1 to A3, the trial Court concluded that the pronotes were validly executed.
8. The Trial Court also found that the case of the defendant i.e. the planting of Marikolundu and the supplies effected was not proved by letting in acceptable evidence. Consequently, the trial Court decreed the suit as prayed for.
9.Aggrieved by the same the defendant filed A.S.No.33/06 before the Principal District Sessions Court, Theni. After re-evaluating the evidence, the Lower Appellate Court framed the following issues.
"1) Whether the defendant borrowed money from the plaintiff executed the pronote?
2) Excepting that pronote for Rs.50,000/- whether the other pronotes have been fabricated by the defendant?
3) Whether the interest calculated is in excess and what are the reliefs?
10. While examining these issues in detail the lower appellate Court found that no supporting evidence produced on the side of the defendant in support of his case. It is also found that the plaintiff has proved her case. However, the lower appellate Court found that the interest of 24% granted by the trial Court for both A1 and A2 is on the higher side and accordingly reduced the interest to 12%.
11. Against the judgement of the lower Appellate Court , the second appeal has been filed by the defendant raising the following questions of law:-
"When there is no evidence on the part of the Defendant/Appellant, the Court has no option but to proceed to dispose of the matter in accordance with order 17 Rule 2 in any one of the modes prescribed under order 9 of C.P.C. The expression "such other order as it thinks fit" as contemplated under order 9 means that the Court can decide the case on merits?"
12. I have heard the learned counsel for the petitioner and I have also gone through judgements of both courts below.
13. The main contention of the learned counsel for the appellant is that, when the defendant in the suit failed to let in evidence and failed to participate in the suit proceedings further, the trial Court ought not to have passed a judgement on merits under order 17 Rule 3 and instead should have passed only an Ex-parte judgement under order 17 Rule 2 CPC. Therefore, according to the learned counsel for the appellant, the judgements of both the courts below are to be set aside and remitted back for fresh consideration after giving an opportunity to the defendant/appellant to let in evidence on her behalf. According to the learned counsel for the appellant, the evidence on the part of the plaintiff/respondent in O.S.No.30/01 was closed on 25.01.2005 and the suit was posted for defendant's side evidence on 31.05.2005. Thereafter it was adjourned to 07.02.2005 and on 07.02.2005, as no evidence was let in on the side of the defendant, the defendant's side evidence was closed and the suit was posted for arguments on 09.05.2005. Therefore, the learned counsel for the appellant contends that in such circumstances,the judgement passed by the trial Court should have been considered as an Ex-parte one and not on merits. Hence, the same is to be set aside and re-manded for fresh consideration. In support of his submissions, the learned counsel for the appellant relied on the following decisions:
1.2005(4)LW 578(T.Kalyanasundaram Vs..S.Arumuganayakar) 2.1996(2)CTC388(S.Sundaram Pillai & another VS.
S. Kannan & another) 3.2000(3)LW 98(Chinnakannu(died) & another v.Athal & 2 others) 4.1993(2)LW 146(Soopi Haji & 4 others Vs. R.M. Ramanathan Chettiar)
14.I am unable to accept the submissions made by the learned counsel for the appellant.
15.Before the trial Court, when the defendant did not come forward to let in evidence on 07.02.2005, the trial Court adjourned the suit for arguments on 09.02.2005, the argument on the plaintiff's side was heard on 09.02.2005 and thereafter, the suit was adjourned to 12.02.2005 for the argument on the side of the defendant. In fact, the counsel for the defendant did argue the matter on merits on 15.02.2005 and only thereafter, the judgement was delivered by he trial Court on 24.02.2005. After suffering the judgement on 24.02.2005, the defendant filed AS.No.33/06 and argued the appeal again on merits and only thereafter, the first appeal was dismissed on 06.12.2006. Therefore, the question of passing an Ex-parte judgment (or) passing a judgement on merits never arose in the above matter.
16. First of all, when the evidence on the side of the defendant was closed on 07.02.2005, no attempt was made on the part of the defendant to re- open the evidence and to recall the witness on the side of the defendant. Secondly, such a prayer was not again sought for on 15.02.2005 when the learned counsel for the defendant argued the suit on merits. Evenafter the judgement was passed on merits, on 24.02.2005, no attempt was made by the defendant by filing an application to set aside the judgment on the ground that it was an ex- parte one. Instead, an appeal was filed before the First Appellate Court and contested the appeal on merits and it was not the contention of the defendant that the judgement is an ex-parte one and therefore, the First Appellate Court judgement is liable to be set aside and send it back to the trial Court for re- consideration. A perusal of the memorandum of grounds of first Appeal filed before the Lower Appellate Court will show that the appeal challenged the decree of the trial Court on merits and their main contention before the Lower Appellate Court was that the suit was decreed not on the strength of the plaintiff's case but on the weakness of the defendant's case and therefore, the judgement should be set aside. Thus, the question, as raised before this Court for the first time under the guise of substantial question of law, did not arise at all in the second appeal.
17.In 2005(4)LW 578, (cited supra), the defendant filed an application under Order 9 Rule 13 to set aside the ex-parte decree, but, the trial Court dismissed the application on the ground that the suit was disposed off on merits and the application filed under Order 9 Rule 13 CPC was misconceived. When this was challenged before this Court,this Court found that before the trial Court, the plaintiff examined PW1 to PW5 in chief and they were not cross-examined by the defendant. Hence, the plaintiff's side evidence was closed and the suit was adjourned for the evidence on the side of the defendant. The defendant did not let in any evidence and the trial Court passed a judgement and decree which was held by this Court in that case that it was only an ex-parte decree under Order 17 Rule 2 and not a judgement on merits under Order 17 Rule 3 CPC.
18. From the above,it is very clear that the factual aspects are totally different in the above case from this present case and therefore, this judgement is not helpful to the case of the appellant.
19. In 1996(2)CTC388, (cited supra), this Court observed that when the disposal of the suit is not under Order 17 Rule 3, but under Order 17 Rule 2 CPC, then the application under order 9 Rule 13 CPC is maintainable and order 17 Rule 3 would be attracted only if the Court is possessed with sufficient materials, to dispose off the case on merits and one party to dispute had sought an adjournment to produce evidence. Even in the above case, an application was filed to set aside the ex-parte decree and the same was dismissed on the ground that the judgment was passed on merits and therefore, it could not be set aside. Challenging that order, an appeal was filed before the Principal Sub-ordinate Judge and the appeal was also dismissed. When this was challenged before this Court, this Court held as above and set aside the ex-parte decree. Therefore, this judgement is also not helpful to the case of the appellant.
20. The very same principle was again pressed into service by a Division Bench on this Court in 1993 (2) LW 146, (cited supra), wherein also an application filed under order 9 Rule 13 to set aside an ex-parte decree was dismissed by a learned Single Judge of this Court on the ground that the judgement was on merits and therefore, the setting aside application is not at all maintainable. Only in that case, a Division Bench of this Court held that the petition is very much maintainable as the judgement was passed under order 17 Rule 2 and not under order 17 Rule 3 CPC.
21. A perusal of the judgements of both the courts below will show that the Trial Court decreed the suit, after going through Exs A1 to A3 which are the promissory Notes and Ex.A4 which is the legal notice dated 11.01.2001 sent by the plaintiff before filing the suit. The trial Court has also considered the evidence of PW1 and PW2 in respect of the execution of the promissory Notes. When a suit of this nature is filed, the initial burden is on the defendant to rebut the presumption that the promissory Notes have been validly executed for consideration. But, the trial Court found that the defendant miserably failed to establish his case by letting in any evidence and therefore, the presumption is not rebutted. It also took into consideration the non-reply of the defendant to the legal notice dated 11.01.2001 (Ex-A4) sent by the plaintiff. Therefore, the trial Court decreed the suit as prayed for.
22.The Lower Appellate Court after re-evaluating the entire evidence, found that the plaintiff proved her case herself and examining one of the attesting witnesses of the promissory Notes. It also found that there was no evidence at all, much less any acceptable evidence, on the side of the defendant to rebut the presumption that the promissory Notes are not validly executed for consideration. But, the first Appellate Court found that the interest granted by the trial Court on ExsA1 and A2 are on the higher side i.e.24% and accordingly, reduced the same to 12%. Therefore, both the courts below have arrived at the right findings on the basis of the evidence adduced and it cannot be said that the suit was decreed by the trial Court by picking holes in the non-filing of any document and non-examining of any witness on her side i.e. on the part of the defendant. Hence, the judgement relied on by the learned counsel for the appellant, reported in 2000 (3) LW 98, (cited supra), is not at all applicable to the facts of the present case, wherein this Court found that the plaintiff has failed to prove her case by adducing acceptable materials in order to get the relief sought for and She cannot succeed by picking holes in the title of the defendant. The factual aspects in the present case are totally different and in the case on hand, the plaintiff has clearly established her case by letting in legally acceptable evidence.
23.Therefore, I do not find any substantial question of law that arises for consideration in the above Second Appeal and accordingly, the same is dismissed as devoid of merits.
24.In the result, the above mentioned Second Appeal is dismissed. No costs.
1. The Principal District Sessions Judge, Theni
2. The Sub-ordinate Judge, Periyakulam.