1. The present C.R.P is filed by the unsuccessful defendant in S.C No. 252 of 1998 on the file of the Principal Senior Civil Judge, Chittoor.
2. The facts in brief, are that the respondent in the C.R.P who is the plaintiff in S.C No. 252/98 filed the suit against the revision petitioner-defendant for recovery of Rs. 8,630/- with costs and future interest as prayed for from the date of suit till the date of realisation (the parties for the purpose of convenience will be referred to as plaintiff and defendant). The defendant borrowed a sum of Rs. 5,000/- from the plaintiff on 3-8-95 for his family necessity and for business and executed a promissory note promising to repay the same together with interest at 24% per annum, which is marked as Ex.A-1 Subsequently, inspite of repeated demands and also issuing a registered notice dated 10-6-1998 the defendant failed to repay the same. The office copy of the notice is marked as Ex.A-2 and a postal acknowledgment is marked as Ex.A-3. The defendant filed a written statement denying the execution of the promissory note and also denying doing any medical shop business and the defendant specifically pleaded that he is entitled to the benefits of the Act 4 of 1938. Act 45 of 1987 and Act 2 of 1990. It was further pleaded, that the plaintiff's sister was proposed to defendant to be given in marriage and subsequently the said proposal was dropped and since then misunderstandings arose between the plaintiff and defendant and just to wreak vengeance, the present suit was filed on the basis of a forged promissory note. On behalf of the plaintiff P.Ws 1 and 2 were examined and Exs.A-1 to A-3 were marked and on behalf of the defendant. DWs. 1 and 2 were examined. P.W.I is the plaintiff and P.W 2 is one of the attestors of Ex.A-1 and D.W 1 is the defendant ad D.W 2 is the scribe of the promissory note. Ex.A-1. The Court below had framed the following point for consideration:
“Whether the plaintiff is entitled to claim the suit amount?”
3. After discussing the oral and documentary evidence in detail at paragraph Nos. 7 and 8 of the judgment, the Court below had decreed the suit and aggrieved by the same, the present C.R.P was filed by the unsuccessful defendant-.
4. Sri P.V Vidyasagar, learned counsel appearing for the revision petitioner had contended that there are material alterations in the suit promissory note and the ink used to write the figure Rs. 5,000/- on the top of Ex.A-1 is different from the ink used to write the contents of Ex.A-1 Learned counsel also contended that the defendant had never executed Ex.A-1 and the signature on Ex.A-1 is a forged one. Learned counsel further contended that the evidence of DW. 2 the scribe of Ex.A-1 clearly goes to show that suit promissory note is not supported by any consideration and D.W 1 had never signed Ex.A-1. The learned counsel also contended that though a specific plea was taken relating to the aspect of small farmer, specific point for consideration was not framed in this regard. Learned counsel also had placed reliance on the cases reported in Jayantilal Goel… v. Smt. Zubeda Khanum…. AIR 1968 A.P 120., A. Subba Reddy v. Neelapa Reddi 1966 2 ALT 114, Kalianna gounder v. Ivanpalani Gounder 1970 1 SCC 56, Loonkaran Sethia v. E. John 1977 1 SCC 379 and M.S Anirudhan v. Thomco'S Bank Ltd. . AIR 1963 SC 746.. The learned counsel also had contended that the Court below had totally erred in comparing the signature on its own accord resorting to Section 73 of the Indian Evidence Act.
5. Sri Balaji representing Mr. Gudapati Venkateshwar Rao learned, counsel appearing for the respondent-plaintiff supported the judgment of the Court below. The learned counsel had contended that the suit promissory note Ex.A-1 was proved by plaintiff by examining one of the attestors of Ex.A-1 as P.W 2 and the learned counsel also had pointed out that even the scribe of Ex.A-1 was examined on behalf of the defendant as D.W 2 and in his evidence he has stated that the defendant had signed the suit promissory note and the contents of the said promissory note were scribed by him. The learned counsel also had contended that the scope of jurisdiction under Section 25 of the Small Causes Courts Act is very limited and it cannot be said that the judgment of the Court below is not in accordance with law. The learned counsel also had pointed out that the aspect of material alteration had been discussed in detail by the Court below and the same was negatived on appreciation of evidence and also the Court itself compared the signature by exercising the powers under Section 73 of the Indian Evidence Act and arrived at a conclusion that Ex.A-1 contains the signature of the defendant and the defendant in fact has executed Ex.A-1 promissory note and had received the consideration. The learned counsel also had contended that all these aspects are questions of fact recorded by a Court of Small Causes on appreciation of evidence and hence such findings cannot be disturbed by exercising the revisional jurisdiction under Section 25 of the provisions of Small Causes Courts Act. The learned counsel also had pointed out that non-framing of a point for consideration relating to the aspect of small farmer, at best, is only an irregularity, but there is material to show that the defendant is a businessman having a medical shop and the learned counsel also had drawn my attention to the affidavit filed by the defendant in the present revision in C.M.P No. 11287 of 2000 wherein it had been shown “I, M. Ravi Naidu, son of Krishnama Naidu, Hindu, aged about 40 years, Medical Shop Business, residing at P. Kothakota Village and Post, Puthalpat Mandal Chittoor District”. The learned counsel contended that in view of this fact, the mere non-framing of a point for consideration and non-consideration of the aspect of small farmer at the best is only a curable irregularity and not an illegality so as to warrant interference in exercising the revisional jurisdiction.
6. After hearing both the counsel, at the threshold I have to state that on the aspect of framing proper issues or proper points for consideration in a small cause suit under the provisions of Small Causes Courts Act in C.R.P No. 1919 of 1999, dated 17-9-2001, I had already delivered judgment holding that proper issues and proper points for consideration ought to be framed even by the Court of Small Causes before recording evidence. On the aspect of material alterations of Ex.A-1 the Court below, in the course of discussion, had observed as follows:
“But when the signature in the postal acknowledgment is shown to D.W.I he denied the signature. Obviously, the defendant must be giving false evidence to escape the liability. If really he had not signed in the postal acknowledgment, he should have denied the receipt of legal notice. When he has not denied the receipt of legal notice issued by the plaintiff, it shall be presumed that the signature appearing in the postal acknowledgment belongs to the defendant only. D.W.I admitted his signature in the suit summons issued by the Court. On comparison of the signatures in Ex.A-1, A-3 and the postal acknowledgment, written statement under Sec. 73 of Indian Evidence Act, it appears that all the signatures are signed by the same person. It appears that the defendant might have signed in the written statement and vakalat in a different fashion only to escape the liability. The plaintiff examined the attestor of Ex.A-1 who deposed that the defendant signed in Ex.A-1 and received Rs. 5,000/- from P.W.I under Ex.A-1. Though the defendant stated in his evidence that there is enimity between him and P.W 2 as the father of D.W.I refused to advance loan to P.W 2 for the purchase of tractor, there is no other evidence except D.W 1's oral testimony in this regard. I do not see any reason to disbelieve the evidence of P.W 2 who supported the case of P.W.I with regard to execution of Ex.A-1 by the defendant.”
7. In the case of Loonkaran Sethia v. Ivan E. John (4th supra) at page No. 347 the Apex Court had observed “As aptly stated in paragraph 1378 of Volume 12 of Halsbury's Laws of England (Fourth Edition),” if an alteration (by erasure, interlineations, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitled under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorised the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it, who did not consent to the alteration, any obligation, covenant or promise thereby undertaken or made. A material alteration, according to this authoritative work, is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces |to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed.” In the case of Kalianna Gounder v. Palani Gounder (3rd supra) at page No. 1945 it was observed that:
15. It is also stated in Art. 604 at pp. 370 and 371:
“An alteration made in a deed, after its execution, in some particular which is not material does not in any way affect the validity of the deed; x x x x an alteration is not material which does not vary the legal effect of the deed in its original state, but merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties already apparent on the face of the deed, provided that the alteration does not otherwise prejudice the party liable thereunder.”
This rule has been applied by the Privy Council in Nathu Lal v. Mt. Gomti Kaur, 67 Ind app 318 : (AIR 1940 PC 160). The Judicial Committee observed in that at p. 331 (of Ind App) - (at p. 164 of AIR):
“A deed is nothing more than an instrument or agreement under seal; and the principle of those cases is that any alteration in a material part of any instrument or agreement avoids it, because it thereby ceases to be the same instrument.”
The Judicial committee observed at p. 333 (of Ind App) = (at p. 165 of AIR):
“A material alteration has been defined in the rule as one which varies the rights, liabilities or legal position of the parties ascertained by the deed, etc.,”
and after applying that test they held that the alteration in that case was not material in the sense of altering the rights, liabilities or legal position of the parties or the legal effect of the document.”
8. Section 87 of Negotiable Instruments Act dealing with the effect of material alteration reads as follows:
87. Effect of material alteration: Any material alteration of negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alteration by indorsee, and any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those of Sections 20, 49, 86 and 125.”
9. In Jayantilal Goel v. Zubeda Khanum (1st supra) it was held that a material alteration takes in not only a case where certain thing which is already written, has been altered or erased but also a new insertion. In A. Subba Reddy v. Neelapa Reddi (2nd supra) it was held that “the general rule in English law followed in India is that a party having custody or control of a document produced in evidence must explain the alteration and that the instrument on its production appears to have been altered, it is a general rule that the party offering it in evidence must explain its appearance, because every alteration in the case of a negotiable instrument renders it suspicious and it is only reasonable that the party claiming under it should remove the suspicion.” However, as already discussed supra, the Court below after appreciating the evidence of P.Ws 1 and 2 and also the evidence of D.Ws 1 and 2, had arrived at a conclusion that the suit promissory note is not hit by Section 87 of the Negotiable Instruments Act and the plea of material alteration had been negatived. In view of the detailed reasons recorded by the Court below in this regard I am in agreement with the findings of the Court below on the aspect of material alteration and hence it can be taken that Ex.A 1 promissory note is proved in accordance with law by the plaintiff by adducing necessary evidence had discharged the burden cast upon him under law. The matter does not end there. The next question is the non-framing of a point for consideration regarding the aspect of small farmer. I have gone through the complete judgment and not only this plea though specifically taken by the defendant was not framed as a point for consideration, there is absolutely no discussion also on this aspect. In this view of the matter and in the light of the view already expressed in CR.P No. 1919 of 1999 the matter has to be remitted back to the Court below for framing a point for consideration regarding to the plea of small farmer taken by the defendant and the Court below is directed to give opportunity to both the parties to let in further evidence, if any, if they required to do so only on the aspect of the plea of small farmer and decide the matter in accordance with law.
10. For the foregoing reasons, the C.R.P is allowed to the limited extent indicated above and the matter is remitted back for giving opportunity to both the parties to let in necessary evidence on the plea of small farmer and in the circumstances of the case, no order as to costs.