IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.235 of 2006 Date of decision: 16.12.2010 Mohan Lal …. Petitioner Versus Bahader Singh ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioner: Mr.Sanjeev Kuthiala, Advocate. For the respondent: None. _____________________________________________ Deepak Gupta, J.(Oral) 1. This petition under Article 227 of the Constitution of India is directed against the judgment and decree dated 26.7.2006 passed by the learned District Judge, Kullu in Civil Appeal No.28/06 whereby he allowed the appeal filed by the respondent (hereinafter referred to as the ‘defendant’) and set aside the judgment and decree passed by the learned Civil Judge (Senior Division), Kullu decreeing the suit filed by the petitioner (hereinafter referred to as the ‘plaintiff’). 2 2. Under Section 100, CPC, a second appeal lies to the High Court only on a substantial question of law. Section 102, CPC specifically provides that no second appeal is maintainable in a suit, valuation of which is ` 25,000/- or less. This Court has repeatedly held that the provisions of Article 227 of the Constitution of India cannot be used as a means to circumvent the bar to filing of an appeal. An appeal is only a creation of the statute and if the statute prohibits the filing of an appeal, the provisions of Article 227 of the Constitution of India cannot be invoked in normal course. 3. Having held so, this Court would be failing in its duty if it does not exercise its supervisory jurisdiction under Article 227 of the Constitution of India where the judgment or order challenged is totally illegal or perverse. 4. I am constrained to observe that as far as the present case is concerned, the order of the learned District Judge is perverse since it is against the entire evidence led on record and the learned District Judge has discarded the reliable evidence on frivolous grounds and has set aside the well reasoned 3 judgment of the learned Trial Court without any cogent reasons. 5. The plaintiff filed a suit for the recovery of ` 20,000/- alongwith future interest @ 12% per annum on the ground that the defendant had borrowed this amount from him and had executed an agreement Ext.PW2/A whereby the loan was granted to the defendant and the defendant had agreed to pay the same to the plaintiff. The plaintiff not only examined himself to prove the fact that the loan was granted to the defendant but also examined the scribe of the document and both the witnesses to the said document. All these witnesses had in one voice stated that the defendant had executed such a document in favour of the plaintiff. The defendant is known to these persons and it is not a case where some wrong person was produced before the scribe at the time of execution of the document. The learned Trial Court compared the signatures of the defendant on the agreement with his admitted signatures on the written statement and power of attorney and found that the signatures were fairly 4 similar. Thereafter, the learned Trial Court decreed the suit. 6. The learned Lower Appellate Court set aside the well reasoned judgment of the learned Trial Court on the ground that the defendant’s father was a well off person and the defendant was unmarried and, therefore, there was no reason for him to take a loan. The statement of the scribe was disbelieved only on the ground of one discrepancy that the scribe had stated that the stamp papers had been purchased on the same date but the stamp papers showed that they had been purchased on 20.7.2002 whereas the agreement was signed on 23.7.2002. The statement of the scribe and the witnesses had been discarded only on the ground that they are regularly scribing and witnessing such documents. In my view, this is not a valid reason to discard their testimony. 7. Under Section 73 of the Indian Evidence Act, a Court can itself compare the disputed signatures with the admitted signatures which are on record. It is true that the Presiding Officer of the Court is not an expert but the legislature in its wisdom under Section 73 of the Indian Evidence Act empowered 5 the Judges to compare the signatures. This has been done because by nature of their work and experience, Judges are required to be conversant with such work, I myself have compared the signatures on the document with the admitted signatures of the defendant on the written statement and the power of attorney and I find that the signatures appear to be very similar. 8. The defendant also admitted that in the month of July, 2002 itself, he had come to Shimla to file a case and that he had affixed court fees on the said case and also engaged a counsel and paid his fees. This by itself was a reason for a person to borrow money. Agriculturists even if they are well off do not have ready liquid cash available with them and the reasoning of the learned Lower Appellate Court that since the father of the defendant is well off, he would not take a loan is not sound reasoning. Even a well off person may take loan when he is in immediate need of money. 9. Another important factor is that admittedly notice Ext.PW4/A was issued to the defendant and received by him in January, 2003 vide 6 acknowledgment PW4/C. The signatures of the defendant on this acknowledgment are also similar to the signatures on the agreement. The suit was filed on 15.6.2005 more than two years after this notice was received. In case the defendant had not raised the loan, he would have immediately replied to the notice and would have stated that he had never borrowed a sum of ` 20,000/-. In this notice, there is specific averment that agreement to this extent was executed on 23.7.2002. The defendant should have immediately filed a complaint of forgery in case he had not taken the loan and had not signed the agreement. 10. In view of the above discussion, I am of the considered view that the learned Lower Appellate Court totally misread the evidence which has led to a perverse finding which needs to be rectified in proceedings under Article 227 of the Constitution of India. Therefore, the petition is allowed. The judgment and decree of the learned Lower Appellate Court dated 26.7.2006 is set aside and the judgment and decree of the learned Trial Court is restored. 7 11. The petition is disposed of in the aforesaid terms. No order as to costs. December 16, 2010 ( Deepak Gupta ) (m) Judge