A. CIVIL PROCEDURE CODE, 1908 – S. 100 – SECOND APPEAL – CONCURRENT FINDINGS OF FACT – SCOPE OF INTERFERENCE – “SUBSTANTIAL QUESTION OF LAW” – REITERATION OF LIMITS
Second appeal filed against concurrent decree of trial Court and first appellate Court in suit for recovery on promissory note.
Held:
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Right of appeal is neither natural nor inherent; it is statutory and regulated by S.100 CPC.
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Second appeal lies only when a substantial question of law arises.
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A substantial question of law must directly and substantially affect rights of parties, and must be an open, difficult, or debatable question not finally settled by superior courts.
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High Court cannot re-appreciate evidence or interfere with findings of fact of first appellate court merely because another view is possible.
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Pure appreciation of facts, appreciation of oral / documentary evidence, or drawing of inferences of fact do not give rise to a substantial question of law.
Applied ratio of Boodireddy Chandraiah v. Arigela Laxmi, (2007) 8 SCC 155; Gurdev Kaur v. Kaki, AIR 2006 SC 1975.
On facts, findings regarding execution of promissory note, part-payment endorsement, and limitation were all factual, based on proper appreciation of evidence. No substantial question of law arose. Second appeal dismissed at admission stage (paras 13–15, 27–28).
B. NEGOTIABLE INSTRUMENT / PROMISSORY NOTE – EXECUTION – PROOF – EXAMINATION OF ATTESTOR – NON-REFERENCE TO HANDWRITING EXPERT – ADVERSE INFERENCE
Suit for recovery based on promissory note dated 29-08-2013 (Ex.A-1); plaintiff examined himself as PW1 and sole attestor as PW2; both deposed that defendant himself scribed Ex.A-1 and later scribed part-payment endorsement Ex.A-2. Defendant denied execution and alleged fabrication, but led only his own evidence as DW1 and did not seek handwriting expert’s opinion.
Held:
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Plaintiff discharged initial burden by producing original promissory note and examining the sole attestor (PW2), whose testimony corroborated PW1.
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Once execution is proved through credible evidence, bare denial by defendant without any supporting material is insufficient.
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Defendant, having specifically alleged forgery/fabrication, ought to have taken steps to send the document to handwriting expert; failure to do so weakened his defence (paras 16–18, 20, 23, 26).
Both courts below were justified in accepting plaintiff’s evidence and holding Ex.A-1 and Ex.A-2 genuine.
C. LIMITATION ACT, 1963 – SS. 3, 18 – SUIT ON PROMISSORY NOTE – PART PAYMENT ENDORSEMENT – FRESH PERIOD OF LIMITATION – PLEA OF LIMITATION
Promissory note dated 29-08-2013; endorsement of part-payment of Rs.5,000/- dated 26-08-2016 (Ex.A-2) written and signed by defendant on reverse of Ex.A-1; suit filed on 24-08-2019.
Held:
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Even though no specific plea of limitation was raised in written statement, court is bound under S.3 to examine limitation.
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As per S.18, where before expiry of the prescribed period there is a written and signed acknowledgment/part-payment, a fresh period of limitation is computed from date of such acknowledgment.
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Endorsement Ex.A-2, scribed and signed by defendant, constituted acknowledgment/part-payment within limitation; hence a fresh three-year period ran from 26-08-2016.
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Suit filed on 24-08-2019 was within time (paras 17, 20, 22).
Contention that suit was time-barred rejected.
D. EVIDENCE ACT, 1872 – S. 73 – COURT’S POWER TO COMPARE SIGNATURES – NO EXPERT OPINION – CONCURRENT FINDING UPHELD
Neither party moved for handwriting expert. Trial Court compared defendant’s signatures on Ex.A-1 and Ex.A-2 with admitted signatures on record under S.73 Evidence Act and found them genuine; first appellate Court concurred.
Held:
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Court is expressly empowered under S.73 to compare disputed and admitted writings/signatures.
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Though expert opinion is a matter of prudence, its absence does not bar the Court from itself comparing signatures.
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Apex Court in Murari Lal v. State of M.P., AIR 1980 SC 531 held that the Court cannot shirk this duty merely saying it is not an expert.
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On facts, careful comparison by trial Court, coupled with oral evidence of PW1 and PW2, constituted adequate basis for concurrent factual finding that Ex.A-1 and Ex.A-2 were genuine (paras 23–25).
No perversity shown; findings not open to interference in second appeal.
E. APPRECIATION OF ORAL EVIDENCE – CREDIBILITY OF WITNESS – ROLE OF APPELLATE COURT
Referring to Pottem Subbarayudu v. Kothapalli Gangulu Naidu, 2000 (5) ALT 759, Court reiterated:
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Credibility of witness must be tested on probabilities and surrounding circumstances;
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Trial Judge, having seen demeanour, is best placed to assess credibility;
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Appellate Court should be slow to disturb such findings.
Here, trial Court accepted PW1 and PW2 as credible; first appellate Court re-appreciated and concurred. High Court found no perversity or misreading justifying interference (paras 21, 26–27).
F. MATERIAL ALTERATION – NOT PLEADED – INAPPLICABILITY OF PRINCIPLE
Reliance placed on Kammali Venkata Subbayya v. Velamuri Viswanatham, 1970 SCC OnLine AP 121 regarding material alteration.
Held:
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No plea of material alteration was raised; neither side contended that the promissory note was altered.
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Case-law on material alteration inapplicable to facts (para 19).
RESULT
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Second Appeal dismissed at admission stage.
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Judgments and decrees of II Additional Junior Civil Judge, Kadapa (O.S. No. 858/2019, dated 28-09-2022) and Principal District Judge, Kadapa (A.S. No. 75/2022, dated 30-07-2024) confirmed.
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No order as to costs; pending applications closed (para 29).
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