TMI Blog2010 (6) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded that he made a part payment of ₹ 500/- on 21-08-1997, and did not pay the balance, by the time he died. The appellant got issued a notice on 18-08-1999 to the respondents, demanding payment. Alleging that the respondents did not pay the amount, he filed the suit. The respondents filed a written statement, denying the very execution of the promissory note, by Pratap Reddy. They have also pleaded that the appellant was himself a tenant in a large commercial complex, owned by their family, and that there was no necessity for the deceased to borrow any amount from the appellant. Reference was made to a decree passed in a suit filed against the appellant by the father of Pratap Reddy, and an eviction case filed by them against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by any one, the appellant was under obligation to examine any third party, to prove the execution thereof. He contends that though PW-2 stated that he is acquainted with the signatures of late Pratap Reddy, it was not even suggested to him that Ex.A-1 contains the signature of Pratap Reddy, nor there was any occasion to compare the signatures on various aspects. Learned counsel submits that the comparison undertaken by the trial Court in exercise of power under Section 73 of the Act was totally untenable, since no independent witness said that, signature on Ex.A-1 is that of Pratap Reddy. The suit is for recovery of a sum of ₹ 1,81,810/-, on the strength of a promissory note said to have been executed by late Pratap Reddy. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant filed affidavit, in lieu of his chief-examination. He did not mention that any third party was present, when the promissory note was alleged to have been executed by, or the amount is said to have been paid to Pratap Reddy. He got issued notices to the respondents, after the death of Pratap Reddy. Those notices were marked as Exs.A-3 to A-5. In the cross-examination, it was elicited from the appellant, that he is a tenant in the premises owned by the father of Pratap Reddy, for the past 30 years. He has also admitted that Pratap Reddy became the exclusive owner of the premises, which included the portion leased to him. The rent is said to have been ₹ 50/- per month, at the commencement, and was enhanced to ₹ 1,250/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount from them. To be precise, the statement made in the affidavit reads as under: I am working as clerk-cum-Manager in Cuddapah Cooperative House Building Society Limited, Kadapa for the last 10 years of Cuddaph Cooperative housing Building Society Limited, for the years 1994 to 1995 and he discharged his work as president and he was signing in a Bill C Book, Cash Book relating to Cuddapah Cooperative House Building Society Limited, Kadapa and I know the signature of late G.Pratap Reddy and the signatures with the minutes book and cash book are of late G.Pratap Reddy I know also the plaintiff for the last 10 years Hardly one gains any idea as to the circumstances under which Pratap Reddy said to have any dealing with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to compare the same with the disputed one, either by sending the documents to expert s opinion, under Section 45, or undertake comparison, by itself, under Section 73 of the Act. Such a facility does not exist in the first category of cases. There would be serious handicap in identifying the starting point, viz., ascertaining the undisputed signatures. In such cases, it is only when a clear picture emerges, as to the undisputed nature of a signature of a deceased, executant, that the exercise of comparison can be undertaken. It is in this context, that the appellant failed to lay proper foundation. It is necessary to know, as to how the trial Court based its conclusion as to the proof of Ex.A-1. After the issues are extracted, it summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of these issues was referred to. No one has spoken about the writing on Ex.A-1. The trial Court assumed to itself, that the writing was also of Pratap Reddy. Learned Senior Counsel submits that Section 73 of the Act empowers a Court to undertake comparison of the disputed writings and signatures, by itself. As observed earlier, an exercise of that nature can be undertaken only when the Court has undisputed signatures and writings before it. Such is not the case here. The findings recorded by the trial Court are perverse and not based on any evidence. The lower Appellate Court has corrected the errors committed by the trial Court. No question of law arises for consideration in this Second Appeal. The Second Appeal is dismissed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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