IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.548 of 2009 Dharmendra Paswan Versus The State Of Bihar & Ors. For the appellant: Mr.M.Chatterjee, Adv. For the Respondents: Mr. J. S.Arora, Adv.( S.C.VI.) With Mr.Ajay Kumar Advocate and Mr. Amit Bhushan, Advocate. ----------- 09. 22.11.2011 Heard Mrs. M.Chatterjee, the learned counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the respondents. 1. The suit has been filed by the plaintiff for declaration that the order dated 20.12.94 terminating the service of the plaintiff is illegal and erroneous as his service had already been regularized by order dated 23.02.1994. The defendant-state authorities have resisted the claim of the plaintiff on the ground that the letter of regularization relied upon by the plaintiff is a forged and fabricated document and does not bear the signature of the Deputy Director as claimed. However, in the trial court no evidence was led by the defendants to substantiate their assertions and ultimately the suit was decreed. The defendants preferred appeal and in the appellate court below the defendants were allowed to 2 bring on record some documents by way of additional evidence under Order 41 Rule 27 C.P.C. 2. The appellate court below has considered the documents brought on record by the defendants as well as the other evidence on record including the deposition of the plaintiff himself and has concluded that the letter of regularization dated 23.02.1994 relied upon by the plaintiff was a forged and fabricated document. The appellate court below has also taken notice of dissimilarity between the signature of the Deputy Director appearing on Ext.A(letter of regularization dated 23.02.1994) and Ext.B & C and has found that the signature on Ext.A is a forgery. Alongwith the documentary evidence, the appellate court has also taken into consideration the admission made by the plaintiff in his deposition. 3. Learned counsel has submitted that the plaintiff never admitted in his deposition regarding the forgery in Ext.A rather his statement is only with regard to erasing some letters by blade by one Deo Narayan Kisku. 4. It has been contended that the appellate court 3 below has not considered the evidence on record properly and has, without the aid of any handwriting expert, wrongly come to the conclusion that the signature of the Deputy Director appearing on Ext.A is not genuine. It has been urged by the learned counsel that it was incumbent upon the appellate court below to have sent the documents for opinion of the handwriting expert and thereafter to have come to a conclusion on the issue of forgery. The learned counsel has contended that the person, who had made the forgery namely Deo Narayan Kisku, has not been examined in the suit and further the Deputy Director whose signature has been alleged to have been forged has also not been examined and therefore the conclusion reached by the appellate court regarding forgery cannot be sustained as there was insufficiency of evidence in this regard. 5. The perusal of the appellate court judgment alongwith the submissions made by the learned counsel for the appellant shows that the basic issue in the suit was regarding the validity of the letter dated 23.02.1994 through which the plaintiff has claimed his regularization in service but which has been alleged to be forged and 4 fabricated document by the defendants. The appellate court below has recorded the finding of fact on the basis of appreciation of the evidence before it which also included the admission by the plaintiff himself in his deposition that forgery has been committed in the preparation of Ext.A. 6. The provision of Section 73 of the Evidence Act is very clear and it enjoins upon a court to form its own opinion in case of dispute regarding signature or handwriting. The aid of the opinion of the handwriting expert in such a case is only by way of assistance to the Court but primarily, the duty is upon the court to determine the issue. This principle is clearly illumined by the decision of the apex court reported in AIR 1980 SC 531. As such it cannot be gainsaid that the appellate court below has acted beyond jurisdiction in examining the handwritings itself and recording its finding thereupon without the aid of a handwriting expert. The reliance by the learned counsel on the judgment reported in AIR 1996 BBCJ is misplaced as the said judgment has been given in entirely different setting of facts. It is well settled that the finding of fact by the courts below are 5 binding in second appeal and reappraisal of evidence is not permitted unless the findings are shown to be perverse. In fact, no perversity in the finding could be established during the course of argument. 7. There is no substantial question of law arising for consideration in this appeal, which is, accordingly, dismissed. Nitesh ( V. Nath, J.)