IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 8/2002 Reserved on: 22.6.2011 Decided on: 29.06.2011 _____________________________________________ Dayakant. …Appellant. Versus Jaram Chand. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. N. S. Chandel, Advocate. For the Respondent: Mr. C.P. Sood, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 26.9.2001 rendered by the learned District Judge, Chamba in Civil Appeal No.34 of 2001. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondent- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for recovery of ` 1,88,050/- . According to the plaintiff, the appellant-defendant 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 (hereinafter referred to as “defendant” for convenience sake) borrowed a sum of ` 1,50,000/- from him for purchasing land measuring 13 biswas comprised in khasra No. 433 situated in Mohal Sultanpur, Tehsil and District, Chamba. He executed a bond on 30.1.1996 (Ex.PW-1/A) and agreed to repay the amount on or before 1.2.1998, failing which the defendant was responsible for the expenses and damages. Defendant did not repay the loan amount despite several demands and notice dated 16.1.1998 was issued to him. In view of this, the plaintiff was entitled to recover a sum of ` 1,88,050/- and interest thereon from 30.1.1996 to 30.1.1998 @ 12% per annum. 3. Defendant resisted the suit by filing written statement. He has admitted the issuance of notice and the same was replied on 16.3.1998. According to him, the plaintiff, his wife and the defendant purchased land jointly from Bodha as co-sharers in the same Khata and all the persons are recorded as co-sharers in the Jamabandi. According to him, if the plaintiff had obtained signatures during this period by playing fraud or misrepresentation and subsequently prepared forged bond, in that eventuality, he was not bound by that bond and moreover the bond dated 30.1.1996 was 3 unregistered, unstamped, illegal and unwarranted. The plaintiff filed replication reiterating the grounds taken in the plaint. The trial court framed issues on 5.12.1998. Suit of the plaintiff was decreed in his favour and against the defendant for recovery of ` 1,88,050/- with pending and future interest @ 12% per annum from 4.3.1998 till total realization of entire decretal amount. Defendant preferred an appeal before the District Judge, Chamba. He partly allowed the appeal on 26.9.2001 and the suit of the plaintiff was decreed for recovery of ` 1,50,000/- with proportionate cost and interest @ 9% per annum with effect from 1.2.1998 till the decretal amount was paid. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. “Whether both the learned courts below have returned findings on the basis of inadmissible evidence, that is, Ex.PW-1/A? 2. Whether both the learned courts below have erred in ignoring, misreading and overlooking material evidence and placing reliance upon inadmissible evidence?” 4. Mr. N.S. Chandel has strenuously argued that Ex.PW-1/A was not admissible in evidence. According to him, both the courts below have misread and mis- appreciated the oral as well as documentary evidence led by the parties. 4 5. Mr. C.P. Sood has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and have perused the records carefully. 7. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 8. Plaintiff has appeared as PW-1. He has testified that the defendant borrowed a sum of ` 1,50,000/- from him for purchasing land and he executed a bond Ex.PW-1/A in his favour. According to him, Ex.PW-1/A contained his signatures and it was scribed by PW-2 Alladad. One of the marginal witnesses Pratap Chand has died. He then stated that defendant has failed to repay the amount and the notice was issued to the defendant. PW-1 has proved the copy of notice Ex.PW-1/B and RAD Ex.PW-1/C. 9. PW-2 Alladad has deposed that he is working as Petition-cum-Document Writer for the last 55 years. According to him, Ex.PW-1/A was executed by defendant in favour of the plaintiff. He further deposed that he has read over the document to the defendant, who after admitting the contents of the same to be correct 5 appended his signatures thereon and the marginal witnesses also signed the document and the document contains his stamp and signatures. 10. PW-3 Om Parkash is the marginal witness of Ex.PW-1/A. He has testified that Ex.PW-1/A contains his signatures as a witness. However, he has deposed that the document had already been scribed when he put his signatures. 11. Defendant has appeared as DW-3. According to him, he purchased the land jointly with Bhawna Devi wife of the plaintiff in Sultanpur from one Sh. Bodha and that he purchased 13 biswas of land and paid a sum of ` 26,500/- out of the total transaction of ` 34,500/-. He has admitted that the plaintiff served a notice upon him, which was replied by him. He has proved the copy of the reply Ex.D-1. According to him, the plaintiff had instituted a case against him and also moved an application for stay and in the suit; he did not help the plaintiff. He neither borrowed any amount from the plaintiff nor executed bond Ex.PW-1/A in his favour. According to him, the signatures in red circle on document Ex.PW-1/A are not his signatures. He further deposed that the plaintiff and his wife are inimical 6 towards him. He then stated that Ex.PW-1/A was forged document. 12. DW-2 B. Om Parkash has deposed that in civil suit No. 177/1994, titled Jaram Chand versus Bodha, he moved an application under order 39 rules 1 and 2 of the Code of Civil Procedure and he had prayed for ad interim injunction against the defendant in the suit. He has proved certified copy of the application for preponement of the case Ex.D-2, certified copy of order Ex.D-3 and copy of statement Ex.D-4. 13. The bond was executed on 30.1.1996. The present suit was filed on 4.3.1998. The application Ex.D-2 was filed in the Court on 9.6.1998. Thus, it is evident that the plaintiff had filed the suit prior to filing of the application Ex.D-2. 14. The defendant is working as Junior Engineer. He has stated that the summons contained his signatures in red circle issued to him in the instant case. The first appellate court has compared the signatures of the defendant with his signatures put on the summons in the red circle. According to him, the signatures appear to be of the same person. 15. Their Lordships of the Hon’ble Supreme Court in Murarilal versus State of M.P., AIR 1980 SC 7 531 have held that there may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being unable to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. Their Lordships have further held that the duty cannot be avoided by recourse to the statement that the court is not expert. Their Lordships have held as under: “11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted. 12. The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or 8 proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.” 16. Their Lordships of the Hon’ble Supreme Court in Lalit Popli versus Canara Bank and others, AIR 2003 SC 1795 have held that the Court has power to compare the writings and decide the matter. Their Lordships have further held that irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. According to their Lordships, such exercise of comparison is permissible under section 73 of the Evidence Act. Their Lordships have held as under: 9 “12. It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45, 47 and 73. Both under sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there. Court has power to compare the writings and decide the matter. [See Murari Lal vs. State of Madhya Pradesh (1980) 1 SCC 704].” 17. Learned Single Judge of the Andhra Pradesh High Court in J.L. Babu versus S. Gowri Shankar and another, AIR 2009 AP 2003 has held that the Court itself is conferred with the power under section 73 of the Evidence Act to undertake comparison itself. Learned Single Judge has held as under: “5. The burden to prove the agreement of sale and receipts relied upon the petitioner, squarely rests upon him. The respondents no doubt have denied the 10 execution of the documents. That denial would only lead to framing of an issue, touching upon the same. Sending of a document under Section 45 of the Act, for opinion of an expert, is a step in the direction of proof. The exercise as regards proof of the document would only start with the commencement of trial. The C.P.C., as well as the Evidence Act enshrine the principles, that are relevant in this regard, touching upon the burden, adducing evidence etc. When the burden squarely rests upon the petitioner to prove the documents relied upon by him, it could, not at all be the genuine concern of the respondents, to initiate steps for disproving it. 7. Another aspect of the matter is that, the Court itself is conferred with the power under Section 73 of the Act to undertake comparison, by itself. If the features of writing and signature on the documents are so glaring, that the Court can form an opinion by itself either way, further exercise under Section 45 of the Act, may virtually become unnecessary or futile. Therefore, the order passed by the trial Court allowing an application under Section 45 of the Act, which was filed even before the trial commenced, cannot be sustained either in law, or on facts.” 18. Thus, the conclusion arrived at by the first appellate court that the signatures on Ex.PW-1/A and on the summons issued to him were the same, was in accordance with law. 19. Mr. C.P. Sood has drawn the attention of the Court to the written statement filed by the defendant. The defendant has not specifically denied borrowing of the loan and execution of the document Ex.PW-1/A in 11 the written statement. The plea of the defendant that the signatures were obtained by playing fraud or misrepresentation cannot be accepted for the simple reason that defendant is well educated person and was working as Junior Engineer at the relevant time. In case his signatures had been obtained by playing fraud or misrepresentation, as a prudent man, he was required to take recourse to law. Though in the instant case PW-3 has not supported the case of the plaintiff in entirety but in view of statements of PW-1 and PW-2, Ex.PW-1/A stands fully proved. Consequently, both the courts below have rightly come to a conclusion that Ex.PW-1/A was admissible being duly proved by the plaintiff in accordance with law and the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. 20. Consequently, there is no substantial question of law involved in the present Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 29.06.2011 *awasthi*