K.T. Sankaran, J.

1. The petitioner filed O.S.No.240 of 2008 on the file of the Court of the Principal Subordinate Judge, Kottayam, against the respondent for realisation of money on the foot of a promissory note. The respondent/defendant denied the execution of the promissory note. He contended that he had joined a chitty run by the plaintiff and while receiving the prize amount, he was forced to handover a blank signed cheque, two signed blank papers and two unfilled printed forms. Though the amount covered by the chitty was repaid, the signed papers were not handed over. The defendant further contended that the plaintiff has filled the blank portions in the printed form and fabricated the suit promissory note.

2. The plaintiff was examined as PW1 and the defendant was examined as DW1.

3. After closing the evidence, the petitioner/plaintiff filed I.A.No.1976 of 2010 to recall the plaintiff and to mark certified copies of certain documents. That application was allowed by Ext.P7 order dated 20.8.2010 on payment of costs and the plaintiff was permitted to prove the documents "subject to admissibility".

4. Thereafter, the petitioner/plaintiff filed a proof affidavit, in which, he stated the following: While the defendant gave evidence, he deliberately put his signature in the deposition by changing his handwriting. This would be clear from the signature put by the defendant in his deposition while he was examined before the Court of the Judicial Magistrate of the First Class in a case filed by the plaintiff under Section 138 of the Negotiable Instruments Act. The plaintiff also stated in the affidavit that the deposition of the defendant in S.T.No.119 of 2007 (the case before the Magistrate's Court) and his signature may be marked as Exts.A3 and A3(a) respectively. The petitioner also sought to mark copy of the notice sent by him to the defendant and the acknowledgment card in which the signature of the defendant appears.

5. Objections were filed by the defendant to the proof affidavit filed by the plaintiff. The defendant contended that the court permitted the plaintiff only to produce certain documents and mark the same "subject to admissibility". But, while filing the proof affidavit, the plaintiff stated several other facts in the affidavit and they are intended to fill up the lacuna in the evidence.

6. The court below considered the objections raised by the defendant and directed the plaintiff to file a proper additional affidavit containing the averments with respect to copy of the notice and the acknowledgment card. The court below also considered the objection raised by the defendant that the deposition of the defendant in the criminal case and the signature in the deposition could be proved only in the cross examination of the defendant and then only it would be admissible. The court below held, by the order dated 26.10.2010, that the plaintiff can mark the deposition and the signature therein "by adopting some other modes as contemplated under the Evidence Act". The order dated 26.10.2010 is under challenge in this Original Petition.

7. Learned counsel for the petitioner submitted that it is not necessary to confront with the defendant, the deposition in the criminal case and the signature therein, in order to prove the same. He submitted that a distinction has to be drawn between proof of admission under Section 21 of the Evidence Act and proof of a previous statement made by the witness under Section 145 of the Evidence Act. The learned counsel relied on the decision of the Supreme Court in Biswanath Prasad and others v. Dwarka Prasad and others, AIR 1974 SC 117. In that case, the question was whether the plaint schedule properties were the self acquired properties of the first defendant or whether they were joint family properties. There was also a question as to whether the shop room situated in a particular plot belonged to the first defendant or it formed part of the joint family properties. The first defendant