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Vembu Ammal Vs. Esakkia Pillai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)1MLJ71
AppellantVembu Ammal
RespondentEsakkia Pillai
Cases ReferredAssan Mohammed Sahib v. Rahim Sahib
Excerpt:
- - the proviso to section 17(1) of the provincial small cause courts act clearly says that an applicant for a review of judgment shall, at the time of presenting his application, either deposit in the court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree, or compliance with the judgment, as the court may, on a previous application, made by him in this behalf, have directed......came on for hearing before the subsequent district munsiff, mr. balasubramanian chettiar. the learned district munsiff, who heard the review petition, remarked that there was little doubt, that, for the purpose of reviewing the judgment, security must have been furnished by esakkia pillai and accepted within thirty days from the date of the decree, evidently relying on the full bench decision of this court in assan mohammed sahib v. rahim sahib : (1920)38mlj539 holding the provisions of section 17(1) of the provincial small cause courts act to be mandatory and not merely recommendatory. but he went on to say that his predecessor must have admitted the review petition without security probably under the mistake that no security was necessary for reviewing the judgment, and that, as.....
Judgment:

Panchapakesa Ayyar, J.

1. This is a petition for revising and setting aside the order of the District Munsiff of Tinnevelly dated 27th September, 1946, in I.A. No. 143 of 1946, a review petition, in S.C.S. No. 99 of 1946. The facts are briefly as follows:

2. S.C.S. No. 99 of 1946 was a suit filed by the petitioner Vembu Ammal, against the respondent, Esakkia Pillai, for recovering the amount due on a promissory note, Ex. P. 1, dated 17th Feburary, 1945, for Rs. 190 with subsequent interest and costs. Vembu Ammal had alleged that Esakkia Pillai had written the whole promissory note, Ex. P. 1, himself, and had signed in it, and that the amount was due. She had examined three witnesses, P.Ws. 2 to 4, who swore that Esakkia Pillai had written the promissory note himself and signed in it. Esakkia Pillai had denied that he had written the suit promissory note or signed in it.

3. Mr. B.R. Charkrawarthi, the District Munsiff, who tried the suit first gave a decree to the petitioner for the suit amount and costs, on nth June, 1946. The respondent put in I.A. No. 143 of 1946 for reviewing the judgment delivered on nth June, 1946, by comparing his signature in a registered sale deed of November, 1945, with the signature in Ex. P. 1. He had not deposited the decree amount or got any order of the District Munlff regarding security. The petitioner raised her objection regarding this (under the proviso to Section 17(1) of the Provincial Small Cause Courts Act) when the review petition came on for hearing before the subsequent District Munsiff, Mr. Balasubramanian Chettiar. The learned District Munsiff, who heard the review petition, remarked that there was little doubt, that, for the purpose of reviewing the judgment, security must have been furnished by Esakkia Pillai and accepted within thirty days from the date of the decree, evidently relying on the Full Bench decision of this Court in Assan Mohammed Sahib v. Rahim Sahib : (1920)38MLJ539 holding the provisions of Section 17(1) of the Provincial Small Cause Courts Act to be mandatory and not merely recommendatory. But he went on to say that his predecessor must have admitted the review petition without security probably under the mistake that no security was necessary for reviewing the judgment, and that, as the petition had been admitted and the order of admission had not been got quashed, he must proceed with it. He then went on to discuss the merits of the case. He held that the signature in Ex. P. 1 was not the signature of the respondent as it differed from the signature of the respondent in the registered sale deed of November, 1945. He also stated that the plaintiff (petitioner) had not let in any evidence regarding the consideration. In the end, he reviewed and set aside the judgment of his predecessor and dismissed the suit with costs. Hence this petition. The respondent has remained absent in this Court though properly served.

4. The learned Counsel for the petitioner urged that the lower court's order in the review petition was passed without jurisdiction and was patently wrong in law and also perverse in fact, and ought to be set aside, and that the original decree in the petitioner's favour, passed on nth June, 1946, must be restored with costs throughout. I agree. The proviso to Section 17(1) of the Provincial Small Cause Courts Act clearly says that an applicant for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree, or compliance with the judgment, as the Court may, on a previous application, made by him in this behalf, have directed. The pro-visions are mandatory, and not merely recommendatory, and the Full Bench ruling in Assan Mohammed Sahib v. Rahim Sahib : (1920)38MLJ539 , is conclusive on the point. The respondent did not make a previous application, as required by the proviso, or deposit the amount due from him under the decree or obtain an order of Court regarding the security to be furnished by him. Probably, as the learned District Munsiff who reviewed the judgment remarked, the District Munsiff who admitted the review petition without security was not aware of the proviso to Section 17(1) of the Provincial Small Cause Courts Act and, perhaps, the copy of the Provincial Small Cause Courts Act before him was an old one and did not contain this proviso, and he was misled into thinking that no security was required. Whatever it be, the lower Court erred in law in admitting and proceeding with a petition for review without necessary deposit or security, even after the mandatory need for security was brought to its notice. Even its finding on fact, namely that the signature in Ex. P. 1 was not the respondent's, was patently wrong. P.Ws. 1 to 4 had sworn that the respondent had himself written the suit promissory note in their presence. Their evidence on this point was not shaken. The learned District Munsiff was not justified, as a layman, in comparing the signature in Ex. P. 1 with the signature in an unexhibited sale deed of November, 1945, not even filed by the respondent in the trial Court, and in coming to the conclusion that the two signatures were radically different and that the signature in Ex. P. 1 must, therefore, be a forgery. Even a handwriting expert's opinion will not be conclusive on the point. Here, the learned District Munsiff was not a handwriting expert; nor was the sale deed containing the signature which he used for comparing with the signature in Ex. P. 1 exhibited; nor was the signature in the sale deed admitted by this petitioner to be the signature of the respondent. Any comparison of a disputed signature will be only useful when it is done with an admitted signature; otherwise, it will be a case of blind leading the blind. There was no need also for the petitioner to prove consideration when the respondent had not denied the receipt of consideration and raised an issue regarding it.

5. In these circumstances, the judgment of the learned District Munsif in review is set aside, and the original judgment and decree of the District Munsif dated nth June 1946 restored with costs throughout.


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