The burden of proof shifts to the defendant if the plaintiff proves the execution of the pro-note. Admissibility of private handwriting expert's opinion under Order XXVI Rule 10 CPC.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 CPC, 1908 against the decree and judgment dated 16.11.2009 passed in A.S. No.251 of 2007 on the file of the Additional District & Sessions Court (Fast Track Court No.III), Chennai, reversing the decree and judgment dated 25.10.2006 passed in O.S. No.3107 of 2003, on the file of the XIII Assistant City Civil Court, Chennai.)

1. The appellant is the defendant in O.S. No.3107 of 2003 on the file of the XIII Assistant Judge, City Civil Court, Chennai. The plaintiff filed the said suit for recovery of a sum of Rs.75,933/- due on a pro-note together with interest @ 30% per annum on the principal of Rs.40,000/- from the date of plaint till the date of realisation.

2. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their rank in the present appeal would also be indicated.

3. The case of the plaintiff is that the defendant borrowed a sum of Rs.40,000/- on 10.06.2000 from him and executed a pro-note (Ex.A2) promising to repay the principal together with interest at the rate of 30% per annum on his demand or to his order. His further contention is that though it was agreed between the parties that the interest for the loan amount should be paid in advance for every three months period, the defendant did not pay any amount either towards the principal or interest and all her efforts to get the money back from the defendant went in vein. The plaintiff, therefore, issued a notice dated 16.05.2003 (Ex.A3) to the defendant demanding him to pay the amount due under the pro-note Ex.A2. The defendant sent a reply dated 27.05.2003 (Ex.A4) which according to the plaintiff contained false allegations. The plaintiff also sent a rejoinder dated 02.06.2003 (Ex.A5) and requested the defendant to go over to the office of her counsel to inspect the pro-note. But the defendant did not turn up. He did not also come forward to make good the payment. She therefore, filed the suit for recovery of the amount due under Ex.A2.

4. The suit was resisted by the defendant on the following grounds:

i. The defendant did not borrow any amount from the plaintiff.

ii. The suit pro-note Ex.A2 is a forged document.

iii. One Sha Sanjaykumar Changanlal who is a close relative of the plaintiff instigated the plaintiff to file the suit.

iv. The defendant sent a reply dated 16.06.2003 to the rejoinder of the plaintiff demanding the plaintiff to send the pro-note to him so as to enable the latter to send the same to forensic lab for ascertaining the authenticity of the document. However, the plaintiff did not take any steps in this regard.

He therefore prayed for the dismissal of the suit.

5. On the basis of the above pleadings the trial court framed the following charges:

i. Whether the plaintiff is entitled for the suit claim as prayed for?

ii. To what relief is the plaintiff entitled?

6. In the trial court the plaintiff examined her husband as P.W.1 and marked Ex.A1 to Ex.A5. No oral / documentary evidence was adduced on the side of the defendant. The handwriting expert was examined as C.W.1 and his opinion was marked as Ex.C1.

7. The trial court after full contest dismissed the suit filed by the plaintiff vide its decree and judgment dated 25.10.2006 by observing that

a) When the signature on the suit pro-note was denied by the defendant, the burden of proof lies on the plaintiff to prove the execution of the pro-note by the defendant and in this case the plaintiff had compared the signature through a person who is not authorised by the Government to compare the signatures.

b) The handwriting expert’s opinion is also only with regard to three letters, namely, “p”, “s” and “u”.

c) The plaintiff did not examine herself but examined only her husband.

d) When the signature found on Ex.A2 is compared with Ex.B2 series marked in O.S.No.60 of 2003 which was filed by one of the family members of the plaintiff against the defenda