Case: Ishwari Prasad Mishra Vs. Mohammad Isa

1. The appellant Pandit Ishwari Prasad Misra sued the respondent Mohammed Isa for the specific performance of an agreement of sale executed by him on May 18, 1950, in the Court of the 1st Additional Sub-Judge, Muzaffarpur. By the said agreement, the respondent had promised to execute a sale-deed in favour of the appellant in respect of his house situated at Sitamarhi Bazar, Sitamarhi. The appellants claim was decreed by the trial Court which ordered the respondent to execute a sale-deed within a month from the date of the decree on receipt of Rs. 4,000/- which is the balance of consideration remaining to be paid to him. The respondent challenged this decree by an appeal before the Patna High Court and his challenge has succeeded. In the result, the decree passed by the trial Court was reversed and the appellants suit dismissed with costs throughout. It is against this decree that the appellant has come to this Court with a certificate issued by the Patna High Court, and so, the principal question which arises in the present appeal is whether the agreement on which the appellants suit is based is genuine, valid and for consideration.2. The subject-matter of the agreement of sale is a house belonging to the respondent. According to the appellant, at the time when the agreement was executed, the consideration for the transfer was settled at Rs. 14,000/- out of which Rs. 10,000/- were paid as earnest money. The agreement had stipulated that the sale-deed to be executed within three months from its date; in other words, under the agreement, the respondent was bound to execute The sale-deed on or before August 18, 1950. The appellant called upon the respondent to carry out the terms of the agreement and offered to pay the balance of Rs. 4,000/, but since the respondent did not comply with he demand made by the appellant but attempted to dispute the genuineness and validity of the agreement itself, the present suit was filed on the 27th August, 1950, for specific performance of the said agreement.3. The appellants case is that negotiations for the sale of the respondents house had commenced on the 3rd May, 1950, between the father of the appellant and the respondent at the instance of Bihari Lal Singh who acted as a negotiator. The respondent then claimed Rs. 20,000/- as the price of the house and the appellants father was prepared to pay only Rs. 10,000/-. On the 8th of May, 1950, the parties met again when the appellant raised his offer to Rs. 13,000/-, but the respondent refused to go below Rs. 15,000/-. At last on May 18, 1950, the respondent went to the appellant and said that he was willing to sell the house for Rs. 14,000/-. The appellant was then told by the respondent that he was anxious to purchase an Ice-cream machine which was likely to cost Rs. 12,000/-, and so, he wanted the agreement to be made that very day. Both of them then went to Babu Amer Choudhury, a senior lawyer of the place at about 9 A.M., but he had then gone to the court which was holding morning sittings, and so, the parties met him at his office at 2 P.M. along with the scribe Khakhan Singh and the necessary stamp paper. Thereafter, the parties went to the house of Mr. Choudhary and he dictated the draft of the agreement in the presence of his son who was also a lawyer. The draft was taken down by Khakhan Singh. After the draft was thus completed, the appellant, the respondent and the scribe went to the house of the appellant. At this place Khakhan Singh (P. W. 11) scribe copied the draft fair on a stamp paper which had already been purchased in the morning that day. After the draft was thus copied on a stamp paper, the appellant paid to the respondent Rs. 10,000/- and the respondent executed the document admitting in his own handwriting the receipt of the earnest money of Rs. 10,000/-. The document was then attested by Ganesh Thakur (P. W. 5), Jamuna Singh (P. W. 8) and Bihari Lal Saraogi (P. W. 9). That, in brief, is the case set up by the appellant in support of his claim for specific performance.4. The respondent, however, denied the appellants claim in toto.. He suggested that though the agreement of sale bore his thumb marks, he had not entered into any agreement of sale at all. He had entrusted the appellant with stamp papers bearing his thumb marks in order that he may act as an arbitrator in his dispute with Ramzan Ali. The respondent thus alleged that the appellant had made fraudulent use of the stamp paper entrusted to him by the respondent for a different purpose and had brought into existence a forged document on which the present suit was based. The respondent also denied that he had received Rs. 10,000/- or that he wanted to purchase an Ice-cream machine. He urged that the value of the house which was the subject-matter of the alleged agreement was worth Rs. 60,000/-. In other words, the respondent disputed the genuineness of the agreement and so, resisted the appellants claim for specific performance.5. On these pleadings, the trial Court framed four issues, the principal issue being in regard to the genuineness and validity of the suit agreement and its consideration. In support of his case, the appellant examined the stamp-vendor Harikant Jha (P. W. 3) to prove the purchase of the stamp paper for the purpose of crafting the agreement. He examined Mr. Choudhary (P. W. 10), the young lawyer whose father had dictated the draft to prove the fact that a draft had been prepared with the help of the senior lawyer. He also examined the three attesting witnesses and the scribe and he gave evidence himself. Besides, Mr. Bennett (P. W. 14) was examined as a handwriting expert to show the endorsement made by the respondent admitting the receipt of Rs. 10,000/-. On the other hand, the respondent examined five witnesses to support his version about the appointment of the appellant as an arbitrator in connection with which a stamp paper bearing his thumb marks had been entrusted to the appellant. He also examined Karim Bux (D. W. 6) to prove that the value of property was Rs. 60,000/-, and he examined Nasrat Hussain (D. W. 7) a handwriting expert to show that the impugned engrossment was not in his handwriting.6. The learned trial Judge rejected the defence theory about the appointment of the appellant as an arbitrator. He also held that the evidence about the value of the property given by Karim Bux was unreliable and that the house in question was not worth more than Rs. 14,000/-. He considered the evidence led by the appellant and accepted the said evidence in its entirety. In the result, he found that the agreement of sale on which the suit was based had been executed by the respondent, that it was valid and was supported by consideration. That is how a decree for specific performance was passed in favour of the appellant.7. The High Court has reversed all the findings recorded by the trial Court. It has held that the story about the appointment of the appellant as an arbitrator cannot be said to be altogether improbable and that when comparatively weighed, it appeared to be more probable than that of the appellant. It has held that the value of the property including the land can in no way be less than Rs. 30,000/- and on examining the evidence adduced by the appellant, it came to the conclusion that the said evidence was not reliable and really showed a conspiracy between the witnesses and the appellant to bring into existence a false and forged document. The evidence adduced by the respondent to support his theory of an attempted arbitration between himself and Ramzan Ali has no doubt been considered by the High Court to be unworthy of credence; but on the probabilities, the High Court was prepared to prefer that story to the story of the appellant. That, in brief, is the result of the findings made by the High Court. In consequence, the trial Courts decree was reversed and the appellants suit was dismissed.

Court's reasoning:
No doubt, the High Court has come to the conclusion that there has been a conspiracy between all the witnesses, and if that conclusion is right, then the draft would, of course, have to be treated as a false document. But, for the moment, dealing with the argument about the failure of the appellant to mention the draft in the plaint by itself, we do not think there is any substance inis true that if the last recital "that the deed of contract shall be deemed to the deed of sale" is literally construed, it would be unusual. But, in the context, all that it seems to mean is that sale-deed would be executed in the same terms as the agreement of sale. It seems to us unreasonable to suggest that because this particular part of the clause is somewhat unusually worded, the court should draw the inference that the senior Mr. Choudhary could not have dictated it and the whole story about the draft isagain is an unusual provision. But it cannot sustain the argument that the story about the draft having been dictated by Mr. Choudhary is untrue. That fact will have to be decided in the light of the oral evidence adduced by the appellant to show that the draft was in fact dictated by the senior Mr. Choudhary. Therefore we do not think that the two clauses on which Mr. Sastri relies can justify the conclusion that the story about the draft is athe day when the agreement was entered into, the appellants father had gone to Lucknow and if the appellant is taking the oath in support of his case and he knows all the relevant facts which have to be proved in this case, there is no reason why his father should have stepped into the box or hiswould thus be seen that the statements made by this witness do not appear to be credible and the claim made by him that the construction work of the house spread over several years and that he spent Rs. 30,000/- for the improvements, cannot, therefore, be accepted as true. In our opinion, on the material as it stands, there was no justification for the High Court to have reversed the finding of the trial Court about the value of the property. Therefore, the argument that the value of the property was Rs. 30,000/- and that negatives the version about the agreement of sale, must beconsidering the broad features of the case on which the learned Counsel for the respective parties relied before us, it appears that these features are not inconsistent with the appellants case but are inconsistent with the version set out by thehave carefully considered the evidence of this young lawyer and we agree with the trial Court that the story deposed to by him is true and straightforward. Thus, the position is that the evidence led by the appellant satisfactorily proves the purchase of the stamps which bore the thumb marks of the respondent, the preparation of the draft and the engrossment of the draft on a stamp paper by the scribe Khakhan Singh, and its attestation by the three attesting witnesses. That is why we feel no difficulty in holding that the trial Court was right in coming to the conclusion that the suit agreement was genuine and valid and is supported by consideration. In our opinion, the High Court was not justified in interfering with this conclusion ingiven by experts of handwriting can never be conclusive, because it is, after all, opinion evidence. Since we have come to the conclusion that the evidence given by the attesting witnesses and the scribe and the appellant is wholly satisfactory, that evidence proved the execution of the document by the respondent and the said evidence does not really need to be corroborated by the opinion of experts. Even so, Mr. Bennett does support the appellants cases and though Mr. Nasrat Hussain supports the respondents case, it is significant that he has categorically admitted that what purports to be the writing of the respondent is simulated forgery. The writing in question purports to acknowledge the receipt of Rs. 10,000/; the appellant says that it is the writing of the respondent, whereas the respondent contends that it is forgery. The respondents expert calls it simulated forgery. After the respondents expert described the writing as simulated forgery he was asked a specific question as to whether it would be possible to have simulated forgery where there was no model before the forger of the respondents writing and the expert definitely stated that it would not be possible to bring out simulated forgery without the model of the respondents writing. This answer clearly means that the appellant or any of his alleged accomplices should have been in possession of a model writing of the respondent, and on this point, not even a suggestion has been made to the appellant that he was in possession of any writing of the respondent. That only shows that the expert evidence given by Mr. Nasrat Hussain does not really help the respondents case.27. Before we part with this appeal, it is necessary that we should make some observations about the approach adopted by the High Court in dealing with the judgment of the that court which was in appeal before it. In several places the High Court has passed severe strictures against the trial Court and has, in substance, suggested that the decision of the trial Court was not only perverse but was based on extraneous considerations. It has observed that the mind of the learned Subordinate Judge was already loaded with bias in favour of the plaintiff an that the plaintiff had calculated that such of the evidence as he would produce "long with the pull and weight that would be harnessed from behind would be sufficient to carry him through." Similarly, in criticising the trial Court for accepting the evidence of Jamuna Singh, the High Court has observed that the presumption made by the trial Court that teacher, as a rule, is a respectable person, "is not any legal appreciation of the evidence but a way found to suit the convenience of the court for holding in favour of the plaintiff." It would thus be seen that in reversing the decision of the trial Court, the High Court has suggested that the trial Court, was persuaded by extraneous considerations and that some pull and weight had been, used in favour of the appellant from behind. We are constrained to observe that the High Court was not justified in passing these strictures against the trial Judge in dealing with the present case. Judicial experience shows that in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies. vidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is no doubt, the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reached. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases courts of appeal reverse conclusions of facts recorded by the trial Court on its appreciation of oral evidence. The knowledge that another view is possible on the evidence adduced in a case, acts as a sobering factor and leads to the use of temperate language in recording judicial conclusions. Judicial approach in such cases should always be based on the consciousness that one may make a mistake; that is why the use of unduly strong words in expressing conclusions or the adoption of unduly strong intemperate, or extravagant criticism, against the contrary view, which are often founded on a sense of infallibility should always be avoided. In the present case, the High Court has used intemperate language and has even gone to the length of suggesting a corrupt motive against the Judge who decided the suit in favour of the appellant.In our opinion, the use of such intemperate language may, in some cases, tend to show either a lack of experience in judicial matters or an absence of Judicial poise and balance. We have carefully considered all the evidence to which our attention was drawn by the learned counsel on both the sides and we are satisfied that the imputations made by the High Court against the impartiality and the objectivity of the approach adopted by the trial Judge are wholly unjustified. It is very much to be regretted that the High Court should have persuaded itself to use such extravagant language in criticising the trial Court, particularly when our conclusion in the present appeal shows that the trial Court was right and the High Court was wrong.But even if we had not upheld the findings of the trial Court, we would not have approved of the unbalanced criticism made by the High Court against the trial Court. No doubt, if it is shown that the decision of the trial Court in a given case is a result of corrupt motive, the High Court must condemn it and must take due further steps in the matter.But the use of strong language and imputation of corrupt motives should not be made light heatedly because the Judge against whom the imputations are made has no remedy in law to vindicate, his position.28. What we have said about the extravagant criticism made by the High Court against the trial Judge needs to be repeated in respect of similar criticism made by the High Court against some of the witnesses examined in the case. There is no doubt that judicial administration should be fearless; judges must have full freedom to express their conclusions in respect of the evidence given by the witnesses before them without any favour or fear; and so, judicial power to express its appreciation about oral evidence is very wide. But the very width of the said power must inevitably impose some healthy restraints upon its exercise. Take, for instance, the criticism made by the High Court against the young lawyer Mr. Choudhary. In our opinion, that criticism is wholly unjustified. It is conceivable that in a given case, a court of facts may come to the conclusion that all the witnesses who have supported one party have conspired to give false evidence, and in such a case the court must unhesitatingly record its conclusion to that effect. But, before such a conclusion is reached, all the pros and cons must be carefully and scrupulously examined and a conscientious effort must always be made not to regard evidence which appears to be unreasonable or improbable as being false and perjured. We have noticed that the judgment of the High Court shows a tendency to regard every witness whose evidence the High Court did not feel inclined to accept as a perjuror and a conspirator. This approach again may tend to show with respect, either lack of experience or absence of judicial poise and balance. It is because the judgment of the High Court showed these glaring infirmities that Mr. Sastri told us at the very outset that in the present appeal, all that he proposed to do was to defend the respondent but not the judgment of the High Court which has been pronounced in his favour.