JUDGMENT

The defendant in a suit for recovery of money based on a promissory note, is the appellant in the present Second Appeal.

2. The plaintiff filed O.S.No.642 of 2012 for recovery of a sum of Rs.3,19,000/-, together with future interest, basing his claim on a promissory note executed by the defendant on 05.09.2009. The case of the plaintiff is that the defendant failed to pay any amount subsequent to the borrowing and execution of the promissory note and therefore the plaintiff issued a notice on 30.12.2011, which was received by the defendant, pursuant to which the defendant sent a reply on 05.01.2012 with false allegations and hence the suit came to be filed.

3. The defendant filed a written statement denying the execution of the promissory note and also the alleged borrowing. Before the Trial Court, the plaintiff examined himself as P.W.1 and one Mr.Annadurai as P.W.2 and marked exhibits Ex.A1 to A4 and on the side of the defendants there is no oral or documentary evidence adduced. The Trial Court proceeded to dismiss the suit, finding that the plaintiff had failed to prove execution of the promissory note.

4. However, on appeal filed by the plaintiff in A.S.No.2 of 2014, the first Appellate Court reversed the finding of the Trial Court and decreed the suit mainly on the ground that the defendant had not even entered the witness box in order to prove the defence set up by way of written statement.

5. On 12.11.2018, this Court has admitted the above Second Appeal on the following substantial questions of law:

" i) Whether the lower appellate Court was right in holding that the suit pronote was executed when the defendant specifically denied the signature, execution, and averred that the suit pronote was fabricated?

ii)Whether the lower appellate Court was right in taking adverse inference on non examination of defendant when the plaintiff failed to discharge his burden of proof with respect to the genuineness of the suit pronote?

iii)Has not the lower appellate Court committed grave illegality in not framing the proper point for consideration as is required under Order 41, Rule 31 C.P.C?"

6. I have heard Mr.C.Munusamy, learned counsel for the legal heirs of the defendant and Mr.R.Krishnaswamy, learned Counsel for the respondent. I have gone through the judgments of the Courts below and also the decisions on which reliance is placed on by the respective counsel. 7. The learned counsel for the appellant would state that the First Appellate Court has grossly erred in allowing the First Appeal and failed to advert to the oral and documentary evidence adduced by the plaintiff himself and ought to have not proceeded to decree the suit, only for the reason that the defendant did not choose to enter the witness box. The learned counsel for the appellant would further state that the plaintiff had to establish the factum of due execution of the promissory note and also passing of consideration and the plaintiff had miserably failed to establish the same and the burden of proof would not stand shifted to the defendant and therefore the non-examination of the defendant was not fatal. Learned counsel for the appellants would also state that admittedly the plaintiff and the defendant were strangers and not even from the same village which has come out in evidence and there is absolutely no iota of evidence as to how the defendant knew the plaintiff in the first place, for him to even borrow money by execution of a promissory note.

8. He would also rely on the decision of the Hon'ble Supreme Court in Santosh Hazari Vs. Purushottam Tiwari(dead) by Lrs, reported in AIR 2001 SC 965, where the Hon'ble Supreme Court has held on the facts of the said case that the First Appellate Court failed to discharge the duty cast on a Court of First Appeal and the High Court having noticed such failure, ought to have framed substantial question of law and proceeded to hear the Second Appeal on such substantial question of law framed.

9. Per contra, the learned