JUDGMENT

The plaintiff in O.S.No.472 of 2005 on the file of the District Munsif Court, Palani, is the appellant herein. The plaintiff filed the said suit on the strength of two pro-notes Ex.A1 and Ex.A2 for a sum of Rs.20,000/- each dated 20.06.2002 and 07.08.2002 executed in favour of the plaintiff by one Palanichamy. Palanichamy had passed away even before filing of the suit. Therefore, vide Ex.A3, dated 30.05.2005, the plaintiff issued notice to the legal heirs of Palanichamy. The notice was returned 'unclaimed' (Ex.A4). Since the legal heirs of Palaichamy did not come forward to clear the liability, the suit came to be filed.

2.The defendants filed written statement denying the suit claim. The stand of the defendants was that the plaintiff's father Kulanthaisamy Gounder and Palanichamy used to work for one Ayyasamy in the panchayat election. The plaintiff's father had a monetary claim against Ayyasamy. But then, the said Ayyasamy refused to comply with the same. Hence, the plaintiff's father wanted Palanichamy to pay the amount which he had spent. Even as this dispute was pending, on 20.05.2003 Palanichamy passed away. In order to settle scores, the suit pro-notes were created as if they were executed by Palanichamy and on that basis, the suit came to be instituted.

Issue was framed as to whether the suit pro-note was a fraudulent one or not. The plaintiff examined himself as P.W.1 and the attesting witness as P.W.2. Ex.A1 to Ex.A4 were marked. The first respondent herein Sellathal wife of Palanichamy examined herself as D.W.1. The learned trial Munsif, by Judgment and decree dated 15.06.2006, decreed the suit as prayed for. Questioning the same, the defendants filed A.S.No.62 of 2009 before the Sub Court, Palani. The First Appellate Court, by the impugned Judgment dated 21.09.2010, set aside the Judgment and Decree passed by the trial Court and allowed the appeal. Questioning the same, this second appeal came to be filed.

3.The second appeal was admitted on the following substantial questions of law:-

1.Whether the Judgment and decree of the lower Appellate Court is vitiated in holding that the execution of pro-note under Ex.A1 and Ex.A2 was not proved merely on the basis of the additional evidence under Ex.B3 and B4 even without adverting that the said Ex.B3 and B4 marked in the appellate Court was not even contradicted to the previous statements made by the witness under Ex.B3 and B4 as the same is contrary to Section 145 of Evidence Act?

2.Whether the Lower Appellate Court is right in law in allowing I.A.No.49 of 2010 for reception of additional evidence even without adverting to the fact that the respondents 1 to 3 herein did not even satisfy any of the conditions contemplated under Order 41 Rule 27 (aa)?

3.Whether the Lower Appellate Court committed an error in negativing the claim of the appellant merely on the basis of Ex.B3 and B4, discarding the very evidence of P.W.1 and P.W.2 adduced in the present suit which would suffice to hold that the due execution of Ex.A1 and A2, especially the pro-notes under Ex.A1 and A2 and the pro-notes under Ex.B1 and B2 were executed on different dates?

4.Whether the findings of the Lower Appellate Court are contrary to the pleadings, evidence and law which is rendered without adverting to the presumption contemplated under Section 118 of Negotiable Instrument Act especially the appellant / plaintiff has substantiated his claim on the basis of the evidence of P.W.1 and P.W.2 on the other hand the respondents 1 to 3 did not take any steps to prove the alleged defence in their written statement?

Notice was issued to the respondents. The respondents have been served and their names have been printed in the cause list. The respondents have not chosen to engage any counsel.

4.The learned counsel appearing for the appellant pointed out that the plea of forgery was mechanically taken by the respondent. When D.W.1 was cross examined, she frankly admitted that she had not even seen the suit pro-note