The admissibility of signature in a document and the presumption under Section 114(e) of the Indian Evidence Act, 1872 were central to the judgment.

JUDGMENT :

A. BADHARUDEEN, J.

1. This Regular Second Appeal arises out of decree and judgment in A.S. No. 3/2019 on the files of the Subordinate Judges Court, Ottapalam, dated 30.3.2023 and the appellant is the respondent in the above appeal and the plaintiff in O.S. No. 119/2015 on the files of the Munsiff Court, Pattambi.

2. Heard the learned counsel for the appellant/plaintiff as well as the respondent/defendant.

3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’ for convenience.

4. As per order, dated 14.7.2023, my learned predecessor admitted this appeal as under:

“Admit on the substantial questions of law framed in the memorandum of appeal.

Issue notice by speed post returnable in two weeks to the respondent.”

5. Since Section 100 r/w Order XLII of the Code of Civil Procedure (for short ‘the C.P.C.’ hereinafter) mandates formulation of substantial questions of law by the second appellate court to admit an appeal, substantial questions of law are formulated as under:

(1) Whether the first appellate court ignored presumption under Section 114(e) of the Indian Evidence Act, 1872, while holding that, since the plaintiff did not give evidence in support of execution of Ext.A1 agreement, the execution of the same not proved, eschewing the evidence of PW-1 and DW-1?

(2) Whether law mandates an attesting witness to an agreement for sale as per Section 68 of The Indian Evidence Act, 1872 or under any other provisions?

6. Originally, suit was filed for specific performance of contract by the plaintiff and it was contended before the trial court that the defendant executed a sale agreement on 31.12.2014, in favour of the plaintiff, agreeing to sell the plaint schedule properties at the rate of Rs.90,000/- per cent and he received Rs.6 Lakh, as advance. The date of performance was fixed on 30.4.2015. But, the defendant failed to execute the sale deed, even though the plaintiff has been ready and willing to execute the document by performing his part of contract. Accordingly, suit for specific performance of contract was filed. Alternative relief for refund of advance money also was sought for.

7. The defendant appeared, filed written statement and denied the contentions in the plaint. According to the defendant, the defendant did not sign the sale agreement with his consensus and the same was created fraudulently by deceiving the defendant, at the time of execution of a sale deed in favour of Smt.Leena, who is the sister of the plaintiff, as on 31.12.2014 and registered on 1.1.2015. It was also contended by the defendant that, agreement for sale No. 3/2015 of Pattambi SRO, was signed by him, as a result of deception practised by the plaintiff.

8. The trial court ventured the matter. PW-1 was examined and Exts.A1 to A5 were marked on the side of the plaintiff. DW-1 was examined and Exts.B1 and B2 were marked on the side of the defendant.

9. In this matter, the plaintiff took a stand before start of trial that the defendant had to begin the evidence in view of the mandate of Order XVIII Rule 1 of the C.P.C. wherein, it is provided as under:

“1. Right to begin - The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contents that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.”

Accordingly, an order was passed by the learned Munsiff, holding that the defendant had to begin the evidence and accordingly, the matter posted for evidence. Challenging the said order, O.P. (Civil) No. 2497/2017 had been filed before this Court and as per judgment in the above O.P. (Civil), even though this Court found in paragraph No. 6 that ‘prima facie this Court is of the view that the reasonings of the trial court as reflected in the impugned Ext.P8 order are not tenable’ in paragraph No. 7, this Court ordered as under:

“7. Sri. Santheep Ankarath, lea