JUDGMENT: The defendant is the appellant. The plaintiff filed a suit for recovery of the amount due on promissory notes dated 3.2.1998 and 15.7.1998.

2. The plaintiffs’ case is that on 3.2.1998, the defendant borrowed a sum of Rs.3,500 promising to repay the same together with 12% interest per annum and executed the first promissory note. The defendant also borrowed another sum of Rs.5,000 on 15.7.1998 and executed the second promissory note, promising to repay the same together with 12% interest per annum. The defendant has not paid any amount towards these promissory notes and to the notice dated 23.7.1999, the defendant sent a reply on 5.8.1999. As the defendant has not paid the amount, the plaintiff laid the suit.

3. The defendant in his written statement had stated that he never borrowed any amount on 3.2.1998 or on 15.7.1998. The defendant was conducting a chit and in respect of the same, the defendant was liable to pay a sum of Rs.1,750 only, for which, the plaintiff obtained the signature of the defendant in the blank printed promissory notes and filled up the same with the help of his men. The second promissory note dated 15.7.1998 was also filled up by the plaintiff in the same manner. The defendant did not borrow any amount from the plaintiff.

4. On the said pleadings, the trial Court framed the necessary issues and answered that the second promissory note Ex.A-2 was materially altered and came to the conclusion that both the promissory notes were not executed by the defendant and the promissory notes were not true and valid, and dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S. No.170 of 1997 before the District Court, Thiruvannamalai and the learned District Judge found that the defendant has not raised any plea with regard to material alteration and in the absence of the necessary p[leading, the trial Court’s finding that the suit promissory notes were materially altered and thereby dismissed the suit is not proper. The lower appellate Court further held that the defendant failed to prove that the plaintiff obtained Exs.A-1 and A-2 promissory notes in the blank printed promissory notes sand allowed the appeal. As against the same, the defendant has preferred this appeal.

5. The appeal came up for admission and notice of motion alone was ordered. Thereafter, it was felt that trial Court’s records are necessary and they were sent for. After the receipt of the trial Court records, second appeal was taken up for enquiry.

6. The learned Advocate for the defendant/ appellant has submitted that the findings of the learned District Judge that the trial Court dismissed the suit only on the ground of material alteration in Ex.A-2 is not correct. But on the other hand, the trial Court dismissed the suit on the ground that Exs.A-1 and A-2 were not validly executed. It is submitted, even if there is no pleading as to material alteration of the documents, during the trail of the suit, if the Court finds that there is any material alteration of the documents, that can be taken into account in deciding the issue even in the absence of such a pleading.

7. The appellant has raised two substantial questions of law in this second appeal, which are:

(i) Is the learned District Judge correct in decreeing the suit on the ground that the question of material alteration has not been pleaded by the defendant when the Court has power to look into the material alterations if any to decide the issue without the pleadings of either party?

(ii) Are not the judgment and decree of the learned District Judge vitiated for not considering the evidence of both sides as the first appellate being the last Court on facts?

8. The learned advocate for the respondent/ plaintiff has submitted that there is no material alteration at all in the suit promissory notes and the defendant also has not pleaded so in the written statement. That in the absence of the pleadings, the trial Court erred in holding that the suit promissory notes

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