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Sohan Lal and anr. Vs. Lala Mangi Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 351 of 1972
Judge
Reported inAIR1981All62
ActsEvidence Act, 1872 - Sections 45; Code of Civil Procedure (CPC) , 1908 - Sections 100 and 100(1)
AppellantSohan Lal and anr.
RespondentLala Mangi Lal and anr.
Appellant AdvocateG.P. Bhargava and ;A.N. Bhargava, Advs.
Respondent AdvocateAshok Gupta, Adv.
DispositionAppeal allowed
Excerpt:
(i) civil - recovery - section 45 of evidence act, 1872 - suit for recovery of money on basis of promissory note -whether signature on promissory note and receipt alleged to be of second defendant were genuine or forged - two hand writing experts examined - lower appellate court preferred opinion of the experts - opinion not based on knowledge of science of handwriting nor was there any analytical discussion of opinion of two experts. (ii) civil - invoking high court jurisdiction - section 100 of code of civil procedure, 1908 - placing reliance on plaintiff's evidence and discarding defendant's evidence by lower appellate court - substantial error of procedure - decision not on merits - held, high court has jurisdiction to interfere under section 100 of code of civil procedure. - - 3,.....deoki nandan, j. 1. this is a defendants' second appeal in a suit for recovery of rs. 12,000/- on the; basis of a promissory note which was dismissed by the trial court but has been decreed by the lower appellate court. 2. the defendants were three in number, namely, (1) sohan lal. son of sri nathan (2) khoni, son of bhoodar mal, (3) bhoodar mal sohan lal, through defendants nos. 1 and 2. the plaintiff pleaded: (1) 'that the defendants who constitute a joint hindu family and are kartas thereof borrowed a sum of rs. 10,000/- from the plaintiff fir themselves in the name of joint hindu family of bhoodar mal sohan lal at 1/- per cent per mouth as interest on 24-6-1964.' (2) that the defendant executed a pronote and' receipt on the same day in lien of the aforesaid debt and for the belief of.....
Judgment:

Deoki Nandan, J.

1. This is a defendants' second appeal in a suit for recovery of Rs. 12,000/- on the; basis of a promissory note which was dismissed by the trial court but has been decreed by the lower appellate court.

2. The defendants were three in number, namely, (1) Sohan Lal. son of Sri Nathan (2) Khoni, son of Bhoodar Mal, (3) Bhoodar Mal Sohan Lal, through defendants Nos. 1 and 2. The plaintiff pleaded:

(1) 'That the defendants who constitute a joint Hindu Family and are Kartas thereof borrowed a sum of Rs. 10,000/- from the plaintiff fir themselves in the name of joint Hindu family of Bhoodar Mal Sohan Lal at 1/- per cent per mouth as interest on 24-6-1964.'

(2) That the defendant executed a pronote and' receipt on the same day in lien of the aforesaid debt and for the belief of the plaintiff';

(3) 'That the sum was borrowed for the benefit of the joint family of the defendants;

(4) 'That the defendants have not paid anything either towards principal amount or interest in spite of several verbal requests and written notice which the defendants willfully refused to take'; and

(5) That although the plaintiff was entitled to Rs. 13,600/- but claimed only Rs. 12,000/-.

The suit was fifed on 24th Aug., 1967, which was the last day of the expiry of the period of limitation of three years.

3. Defendants Nos. 1 and 2 filed separate written statements. The first defendant Sohan Lal denied that defendants Nos. 1 and 2 were the members of an undivided Hindu family and said that there was no question of them both being the Kartas. The allegation that the defendants had borrowed Rs. 10,000/- from the plaintiff on 24th Aug., 1964, or at any time, was denied as untrue and the allegation that they executed any promissory note and receipt on 24th Aug., 1964, or at any time, in favour of the plaintiff was also denied as untrue. The first defendant further pleaded that he had entered into certain business transaction in grain and gur with the Firm Jayanti Prasad Rajendra Kumar and an account was maintained in the name of Bhoodar Mal Sohan Lal in the books of that firm in connection with that business; that the answering first defendant needed Rs. 2000/- and borrowed it from one Sonpal and gave him a blank promissory note and receipt duly signed by him on revenue stamps, that that promissory note was not signed by the second defendant whose real name is Nanak Chand; that Sonapal's account was paid off by the answering first defendant on 21st May, 1967 and a receipt was obtained by him in lieu of the same; that when the answering first defendant asked for the return of the promissory note and the receipt, Sonpal informed him that they had been lost and that he had already reported the loss to the police, and that he would return the documents whenever found; that the answering first defendantwas the Sarpanch of village Bathain Kalan; that the plaintiff was a resident of that place and there was enmity between the answering first defendant and his brother Vidhi Chand and others; that the plaintiff is the own brother of Sonpal and either Sonpal was in collusion with the plaintiff and had filed the suit after forging a promissory note on the blank forms signed by the answering first defendant or that the plaintiff had somehow obtained those documents and had filed the suit after forging a promissory note on them; that the second defendant never signed any such documents in the presence of the answering first defendant and that his signatures were forged. It was also urged in the alternative that the promissory note had become illegal -and void on account of the various material alterations made thereon. It was further pleaded that the plaintiff had become dishonest and had filed the suit for unlawful gain, that a perusal of the promissory note showed that the need for taking loan was shown to be purchase of a tractor but the answering first defendant had purchased the tractor by taking a loan of Rupees 15,000/- from the Land Mortgage Bank and Rs. 4000/- from Kosi Society and never had any need to borrow that amount from the plaintiff. It was also pleaded that it appeared from the promissory note and the receipt that they were written by one Hari Ram, who was a Dalai and did commission agency business and was on inimical terms with the answering first defendant; and that Dulah Ram and others were the particular friends of the plaintiff against whom the answering first defendant stood surety in criminal cases and Pyare Lal who was supposed to be a witness was Sonpal's wife's brother, while Deo Kishan, who purports to be the other witness was found on enquiry to be that very Deo Kishan whose cousin brother Slier Singh and the plaintiff's son Phool Chand were members of the same party in the Municipal Board and were great friends and further that Sher Singh's father used to sit on the plaintiff's commission agency shop and Suraj Mal was also a neighbour of the plaintiff and a man of his party.

4. The second defendant pleaded that there was no firm of the name of Bhoodar Mal Sohan Lal and that although he was known as Khoni in his childhood but for the last 20 years nobody called him Khoni; that the defendants were not members of any joint family and there was no question of defendants Nos. 1 and 2 beingKartas of any such joint family. The allegation of having taken a loan of Rupees 10,000/- and of having executed any promissory note or receipt was specifically denied as untrue and the promissory note and receipt were alleged to be forged, fictitious and without any consideration. It was also pleaded that no loan was taken for the benefit of any Hindu Joint Family from the plaintiff, that there was no joint family of the defendants and the question of its benefit did not arise. In the additional pleas also it was asserted that no loan was ever taken and no promissory note or receipt was ever executed by the answering second defendant and that the promissory note and receipt relied upon by the plaintiff were forged, fictitious and without consideration. It was then pleaded that the answering second defendant never signed as Khoni and always signed as Nanak Chand which was his name and that he was living separate from the first defendant.

5. The trial court framed the following five issues, namely:

'1. Whether the defendants borrowed Rs. 10,000/- from plaintiff and executed the pronote and receipt in suit?

'2. Whether the defendants 1 and 2 are members of joint Hindu family and do business in the name of defendant No- 3?

'3. Whether the defendants 1 and 3 borrowed the amount for the benefit of the joint Hindu family?

'4, Whether there is any material alteration in the pronote in suit?

'5. To what relief, if any, is the plaintiff entitled?'

In the course of discussion on the first issue, the trial court observed that admittedly the plaintiff's Firm was known as Jayanti Prasad Rajendra Kumar and some time back defendant Sohan Lal had some transaction with the plaintiff's firm in the name of defendant No. 3, and that the plaintiff had stated that he did not know if the defendants had any transaction with any other person as well in the name of defendant No. 3. The trial court then noticed the decision of this Court in Bhagwan Din v. Gouri Shankar, (AIR 1957 AH 119) and observed that where the defendant denied the execution of the promissory note, the onus of proving that the document had been duly executed by the defendant evidently lay upon the plaintiff. It then noticed certain other decisions of the Patna, Nagpur and the Allahabad High Courts, for finding outthe meaning of execution and observed that the admission of signature was not admission of the execution of the document so as to shift the burden of proving the case on to the defendants and further that Section 118 of the Negotiable Instruments Act proceeds on the assumption that the promissory note in question is duly executed, and where only the signatures on a blank promissory note were admitted, that presumption could not be raised, and the plaintiff has to prove the due execution of the promissory note although the burden of proof may not be as heavy as it would have been in a case where the defendants totally denied the execution as well as the signatures. The trial court also observed that the burden of proof would shift as soon as the plaintiff successfully proved that the signatures of the defendants had been obtained under the circumstances alleged by him and it would be then for the defendants to prove that the signatures had been obtained by fraud.

6. The trial court then proceeded to consider and analyse in detail the entire evidence on the record and held on issue No. 1, on an appraisal of the evidence and the facts and circumstances appearing therefrom, that the promissory note in suit had been forged by the plaintiff and that the defendants never borrowed the sum of Rs. 10,000/- and never executed the promissory note and receipt in suit. On issue No. 4, it held that there was a material alteration in the promissory note by the addition of the forged signatures of the second defendant and because of that the promissory note was void against the other defendants as well, and no decree could be passed on its basis. On issue No. 3, it held that in view of the finding that the defendants did not borrow any money from the plaintiff, there could be no question of the alleged loan being for the benefit of the Hindu Joint Family of the defendants, if any, and answered the issue in the negative. On issue No. 2, the trial court found that the defendants were the members of a Hindu Joint Family but they had no shop and did not carry on any business in the name of Bhoodar Mal Sohan Lal in the year 1964 when the promissory note in suit is said to have been executed. On issue No. 5, it was held that the plaintiff was not entitled to any relief and in the result the suit was dismissed with costs.

7. The lower appellate court agreed with the trial court that it was for the plaintiff to prove due execution of the promissory note, and the question of raising a presumption under Section 118(1) of the Negotiable Instruments Act could arise only when the execution of the promissory note was duly proved. However, on a detailed examination of the reasons given by the trial court for its findings, the lower appellate court found itself unable to agree with them and held that the promissory note in suit was proved to have been duly executed for the loan of Rs. 10,000/- by the plaintiff to the defendants, and that the plaintiff was entitled to a decree for recovery of the amount of Rs. 12,000/- as claimed by him, and pendente lite and future interest at 6 per, cent on Rs. 10,000/- and costs.

8. Mr. G.P. Bhargava, who appeared for the defendants-appellants Sohan Lal and Nanak Chand, assailed the findings of the lower appellate court as conjectural, perverse and vitiated in law. He urged that it was settled law that an appellate court must give the greatest weight to the opinion of the trial Judge who had the advantage of seeing the witnesses and noticing their demeanour and that, therefore, on questions of fact, the determination of which depends largely on oral testimony, the findings arrived at by the trial Judge should not lightly be interfered with. In support of this proposition, he referred to the rule laid down by the Supreme Court in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh (AIR 1951 SC 120 at p. 121). That of course, does not mean, added Mr. Bhargava, that the first appellate court may not reappraise the evidence where a finding of fact is challenged before it, but in doing so, it should interfere only if it finds that the finding of the trial court is inconsistent with the existence of some admitted or proved facts and circumstances or contrary to its view of probabilities, but if the findings depend on the trial court's views about the credibility of witnesses and are otherwise not inconsistent with any proved facts and circumstances of the case and is not against the probabilities, the first appellate court should not disturb the findings of the trial court. Mr. Bhargava pointed out that the entire oral evidence in this case was recorded by the learned Civil Judge, who originally tried the case, in his own hand, and the conclusions arrived at by him depended to no small extent on his viewsabout credibility of the witnesses. In addition, Mr. Bbargava pointed out that there were certain indisputable facts, which are either admitted or proved by the documentary evidence of unimpeachable character, that go to show that the findings of the trial court were unim-peachably correct and no reasonable person could have, in face of these facts, arrived at the findings reached by the lower appellate court. Mr. Bhargava also pointed out that many of the basic inferences of fact drawn by the lower appellate court were highly conjectural and were in that sense bused on no evidence which completely vitiated the ultimate findings arrived at by it.

9. In reply, learned counsel for the plaintiff-respondent relied on the case V. Ramachandra Ayyar v. Ramalingam Chettiar (1963 All LJ 67 : (AIR 1963 SC 302)).

10. The first basic question of fact in this case was whether the signatures on the promissory note and the receipt alleged to be those of the second defendant were genuinely made by him along with Sohan Lal, or were forged later on along with the contents of the promissory note and the receipt. Apart from the oral evidence led by the parties, two hand-writing experts were examined, Sri Yog Raj (P. W. 1) by the plaintiff, and Shri Salekh Chand Verma (D. W. 1) by the defendants. Mr. Bhargava was highly critical of the manner in which the lower appellate court dealt with the experts' evidence. Mr. Ashoka Gupta, learned counsel for the plaintiff-respondent on the other hand relied on the decision of the Supreme Court in Magan Bihari Lal v. State of Punjab, (AIR 1977 SC 1091), and urged that the evidence of handwriting experts should not be made the basis of a decision at all and that it was the direct evidence of the witnesses led by the plaintiff which affirmatively proved that the promissory note and the receipt were signed by Khoni in his own hand and that they were duly executed by the defendants, and which has been rightly accepted and made the basis of its decision by the lower appellate court.

11. The observations of the lower appellate court on this aspect of the case were: 'The specimen signatures of defendant No. 2 were taken before the court on 3-5-1968. The plaintiff got these specimen signatures compared with the disputed ones by Sri Yog Raj ...... Thisexpert was of opinion that the specimen signatures were disguised ones. Afternoting some similarities in the disputed and specimen signatures, this expert came to the conclusion that the disputed signatures were written by the same person who had written the specimen signatures ...... The defendants produced SriSalekh Chand Verma .... This expertgave a contrary opinion and said that the disputed signatures were not written by the same person who had writen the specimen signatures ........ The learnedCivil Judge observed that it could not be safe to rely on the testimony of either of the experts. Still he went on to consider the reports of the two experts and observed that it would not be safe to rely on the opinion of the plaintiff's expert......Sri Salekh Chand Verma admitted that a skilled writer could disguise his writing by trying to write in an unskilled manner. He also stated that the disputed signatures were forged but the forgery was neither traced nor free-hand one but by personation. By personation he meant that another man had tried to make the signatures with his own characteristics of handwriting. Sri Yog Raj gave several reasons for his conclusion that the two writings were written by the same person. I have gone through these reasons and in my opinion they were well founded. In the first place I would take the view that the testimony of the two experts should be ignored because they were likely to be biased in favour of the party producing them. But if the question of preferring the opinion of one expert to that of the other arises, I would certainly prefer the opinion of Sri Yog Raj. The reasons given by him appear to be more sound. Khoni Ram would have surely tried to disguise his specimen signatures so as to make it very difficult for an expert to give an opinion. Khoni Ram knew how to sign and write. It is also to be taken into consideration that in the year 1084 when the signatures were made by Khoni his handwriting could be more steady than in the year 1988. Thus in the nutshell the position is that the Expert Evidence does not go to negative the case of the plaintiff so far as the signatures of Khoni defendant No. 2 are concerned on the pronote and the receipt,'

12. The reasons given by the lower appellate court for preferring the opinion of Sri Yog Raj are conjectural. They are not based on any knowledge of the science of hand-writing or any analytical discussion of the opinion of the two experts.

13. The written statement of the second defendant (paper No. 24) and theVakalatnama (Paper No, 25-Ga) are signed by him as 'Da. Nanak Chand'. His statement on oath vide Paper No. 143 is also signed by the second defendant as 'Da. Nanak Chand.' All these signatures do appear on their face to be those of an unskilled writer. The specimen of handwriting of the second defendant taken before the court on 3rd May, 1968 was of the letters contained in the disputed signatures of Khoni on the promissory note and the receipt and are, as noticed by the lower appellate court itself, an example of unskilled person's hand-writing. The lower appellate court has, however, assumed that since a person skilled in writing can disguise his specimen signatures so as to make them appear to be those of an unskilled person, the specimen of his hand-writing given by defendant No. 2, .was disguised. Having looked at the signatures of the second defendant on his written statement, on his Vakalatnama and the specimen signatures given by him in Court on 3rd May. 1968. I find it to be an impossible inference to arrive at. The second defendant gave as many as ten specimen signatures on 3rd May, 1968. They are so markedly similar in style and characteristics that they could not have been the disguised writing of any one except probably a highly skilled hand-writing expert, which the second defendant certainly does not appear to have been from the signatures made by him on his written statement, Vakalatnama and statement on oath. Indeed, those signatures appear to be of an almost illiterate person and are clearly those of an unskilled writer. It is not easily possible to assume that the second defendant was sued a competent and qualified expert of hand-writing as to have concealed his real signatures on 11th Dec., 1967 when he signed his written statement and the Vakalatnama, and again on 20th May, 1968 when he signed his statement on oath so as to make them appear to be of an unskilled and illiterate person, The assumptions made by the lower appellate court that Khoni Ram would have surely tried to disguise his specimen signatures so as to make it very difficult for an expert to give an opinion, or that his handwriting in the year 1964 could be more steady than in the year 1968, are wholly conjectural. I do not know whether there is any evidence on the record to show that Khoni knew to sign and write both. He did sign his name, instead of puttinghis thumb impression, but from the quality and the form of the letters of the signatures on his written statement Vakalatnama and his statement on oath, it is apparent that he could not have been a person possessing any skill in writing.

14. I have, therefore, no hesitation in rejecting the opinion of Sri Yog Raj (P. W. 1), the hand-writing expert produced by the plaintiff, as wholly untenable, In the absence of any evidence to prove that the second defendant was such an expert of hand-writing as to have concealed his real signatures by deliberately disguising them. On the other hand the opinion of Sri Salekh Chand Verma, D, W. 1, the hand-writing expert produced by the defendants appears to me to be sound. The main reasons given by him are that the disputed signatures are better written and at a greater speed than the specimen signatures and there are material differences of pen pressure, form, combinations etc. between the disputed signatures and the specimen signatures. Indeed, having myself looked at the disputed signatures and the specimen signatures of the second defendant, as also the admitted signatures of the second defendant on his written statement and Vakalatnama, I have not the slightest hesitation in holding that the disputed signatures alleged to be those of the second defendant on the promissory note and the receipt in question were not made by the same person. The respective cases of the parties and the other facts and circumstances proved on the record support the said inference. I shall take them up one by one. It was the plaintiff's case that the money was borrowed by the joint family of Bhoodar Mal Sohan Lal for the purposes of purchasing a tractor. The money is said to have been advanced on 24th Aug., 1964. The tractor was purchased in Oct., 1964 and before the actual purchase of the tractor Sohan Lal has proved that he borrowed Rs. 15,000/- from the U. P. State Co-operative Land Development Bank Ltd. and Rs. 4000/- from Kosi Society. The price of the tractor was paid by Sohan Lal from out of the money so borrowed from the Bank and the Society. It is not easily believable that a creditor will forget about the advance made by him, in the circumstances of the present case, and not take any action for getting his money back even after the debtor borrows money from public institution for meeting that need. The explanation given by me plaintiff that the defendants were in a hurry to buy the tractor and. therefore, they borrowed the money from him rather than to wait for the receipt ofthe loan from the public institutions, is on the face of it untenable. Indeed, it may be said that if the plaintiff did want to commit forgery why did he choose the date 24th Aug., 1964, for the making of the advance and waited till the very last day of the limitation for filing the suit. The explanation is to be found in the fact that the promissory note bears the date 24th August, 1964 in the own handwriting of Sohan Lal under his admitted signatures on the foot thereof. It is obvious, therefore, that the date could not be changed by the plaintiff while forging the promissory note. The second set of facts and circumstances which were urged by the first defendant Sohan Lal were that he had borrowed Rs. 2000/- from Sonpal, who is the plaintiff's own brother and had in lieu given him a blank promissory note duly signed by him. Sonpal indisputably is the own brother of the plaintiff and was associated with him in the business of the Firm Jayanti Prasad Rajendra Kumar with which the defendants, had business transaction in the name of Bhoodar Mal Sohan Lal. The receipt dated 21st May, 1967 in the own hand of and duly signed by Sohan Lal is on the record as Ex. A-34. It recites the fact that the blank promissory note and receipt were lost. This fact is corroborated by the copy of the first information report Ex. A-37 alleging loss of the promissory note and the receipt and is dated 10th May, 1967. The suit had not been filed till then. No demand for the alleged loan in suit appears to have been made by the plaintiff till then and it cannot be assumed that there was any dispute between the parties with regard to the loan in suit at that time. Sonpal, although he is the own brother of the plaintiff and was his coparcener business until about 1963-64, appeared as D. W. 9 and supported the defendants' case. The evidence shows that there was enmity between the plaintiff and the first defendant. It is not improbable that the plaintiff was able to lay his hands on the blank promissory note and the receipt in May, 1967, in the manner alleged by his brother Sonpal D. W. 9, and thereafter got the promissory note and the receipt in question forged thereon and filed the suit, on 24th Aug., 1967, on the last day of the expiry of three years. Although, it is alleged in the plaint that a notice dated 12th August, 1964 was given and was refused by the defendant that seems to be an impossible allegation because the date of the promissory note was 24th Aug., 1964,and obviously the notice could not have been given even before the date of the promissory note. If that date was wrongly given that has not been corrected in the plaint, although papers Nos. 27-A-I arid 27-A-II, do show that the two postal covers, one addressed to the first defendant and the other addressed to the second defendant, were refused on 12th Aug., 1967, but they do not appear to have been proved by the plaintiff as the documents do not bear any exhibit marks.

15. The question which, however, arises is that the lower appellate court having found, on a consideration of the oral evidence on the record, that the loan was advanced and the promissory note and receipt were executed as alleged by the plaintiff, whether this Court may still interfere with that finding on a second appeal. Learned counsel for the plaintiff-respondent urged that even if this Court does not agree with that finding recorded by the lower appellate court, it will not interfere with it. as it is finding of fact and it cannot be said that the finding is based on no evidence. Learned counsel elucidated the point by saying that the reasons given by the lower appellate court for believing the plaintiff's evidence may be right or wrong and the result arrived at may also be wrong, but this Court could not in exercise of its second appellate jurisdiction interfere with the same on a re-appraisal of the evidence. In support, the respondents' learned counsel relied on the Supreme Court decision in V. Ramchandra Ayyar v. Ramalingam Chettiar (1963 All LJ 67 : (AIR 1963 SC 302)). It is not disputed that the law applicable to the present case is that contained in Section 100 of the Civil P. C. as it existed before the amendments made by the Code of Civil Procedure (Amendment) Act, 1976. Having closely examined the reasons given by the lower appellate court for believing the plaintiff's evidence and disbelieving the defendants' evidence, I have come to the conclusion that its finding suffers from a substantial error of procedure in appraising the evidence which has materially affected the decision of the case on merits. Such an error gives this Court jurisdiction to interfere on second appeal under Clause (c) of Sub-section (1) Section 100 of the Civil P. C.

16. I have already discussed the defective manner in which the lower appellate court has dealt with the expert evidence in the case. That in itself is a substantial error oflaw which has in no small measure gone to vitiate the finding arrived at by the lower appellate court, but in view of the fact that a decision cannot be based entirely on expert evidence, or even on the court's own opinion as to the identity of band-writing and signatures, as laid down in Magan Bihari Lal v. State of Punjab, (AIR 1977 SC 1091), and the other cases referred to therein by the Supreme Court, it is necessary to see whether the other evidence on the record was such as to affirmatively prove that the promissory note and the receipt were duly executed by the defendants and the loan in question was in fact advanced by the plaintiff to them. Before I proceed to analyse the reasons given by the lower appellate court, it is, however, necessary to notice the settled rule of practice which a court of first appeal must observe in interfering with the findings of the trial court based on an appraisal of oral evidence of witnesses whom it has itself seen and observed, as in this case where 'the entire evidence was recorded by the trial Judge himself in his own hand. The rule is the one laid down by the Supreme Court in Sarju Pershad Sahu v. Jwalesh-wari Piatan Narain Singh. (AIR 1951 SC 120} as under:--

(Para. 7)-- 'The rule is and it is nothing more than a rule of practice that when there is conflict pf oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact'

(Para. 15): 'It cannot be denied that in estimating the value of oral testimony, the trial judge who sees and hears the witnesses, has an advantage which the appellate court does not possess. The High Court was wrong in thinking that it would detract from the value to be attached to a trial Judge's finding of fact if the Judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses. The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the court outweighs such findings.'

17. The first witness whose evidence was discussed by the lower appellate court was Sonpal, D. W, 9. The lower appellate court has disbelieved him on the ground that he was on inimical terms with the plaintiff. The enmity is said to have arisen on account of a suit brought by Kapoor Chand against Sonpal in which the plaintiff supported Kapoor Chand. That suit was decreed on 29th Apr., 1967 and the appeal therefrom was dismissed on 14th May, 1968. The report of the loss of the blank promissory note was lodged by Sonpal on 11th May, 1967. The receipt issued by Sonpal D. W. 9 to the first defendant is dated 21st May, 1967. As already noticed, the suit giving rise to the present second appeal was filed on 24th Aug.. 1967. Even if Sonpal was so minded as to depose against the plaintiff on account of enmity, he could not have conceived of a plan to lodge a report with the police on 11th May, 1967 and to follow it up by giving a receipt to the first defendant on 21st May, 1967 alleging the loss of the promissory note and the receipt, in order to defeat the plaintiff's suit, which was not even filed when the police report was lodged. The police report corroborates Sonpal's statement and since it is not possible to say that he could have concocted the police report as an advance preparation to meet the plaintiffs suit, in conspiracy with the first defendant, it is not possible to reject the evidence of Sonpal P. W. 9, on the ground that his relations with the plaintiff were bad when he appeared in the witness box against his own brother and ex-coparcener in the business. It can, therefore, be said with some justification that the rejection of the evidence of Sonapal D. W. 9 by the lower appellate court in disagreement with the acceptance of that evidence by the trial court, was contrary to the norms of the practice and procedure prescribed by Jaw, inasmuch as the existence of enmity between Sonpal. D. M. 9, and the plaintiff was not such a fact or circumstance as made his evidence so highly improbable that the trial court could have only rejected it as unworthy of belief. Indeed, the documentary evidence corroborates his statement and as observed above, the case of the loss of the blank promissory note and the receipt could not have been invented by the first defendant in conjunction with Sonpal, D. W. 9, and followed up by lodging a police re-port even before the filing of the suit by the plaintiff. The reasons given by the lower appellate court for rejecting these documents are concjectural and I find it impossible to subscribe to them. The conduct of Sohan Lal in giving a blank promissory note and receipt has been criticised by the lower appellate court, but it cannot be said that blank promissory notes are not given by people as collateral security in the course of business transactions, and it cannot be said that since Sohan Lal was a man well versed in business, he could not have allowed the promissory note and receipt even if they were given as collateral security to remain blank for a period of about 3 years and would have been anxious to get the account checked up and to enter the correct amount therein. The inference drawn by the lower appellate court that the story of handing over a blank promissory note and receipt by the first defendant Sohan Lal to Sonpal is a false one, on the basis of the so-called circumstances pointed out by it, is thus based mere on conjectures than on the material on the record. The police report (Ex. A-37) lodged by Sonpal on 11th May, 1967 and the receipt (Ext. A-34) given by him to Sohan Lal on 21st May, 1967, quite some time before the filing of the suit coupled with the sworn testimony of the first defendant-appellant Sohan Lal, D. W. 7, and of the plaintiff's brother Sonpal, D. W. 9, fully corroborate the defendants' case. Indeed, the police report, Ext. A-37, shows that when the bag containing the promissory note and the Bahi of Sonpal, is alleged to have been lost by him at the house of his brother Tika Ram, the plaintiff Mangi Lal, was also present.

18. The other indisputable facts which have been brought out in the evidence are that the tractor for which the loan was said to have been advanced, was purchased by the first defendant-appellant from the money raised from the Land Mortgage Bank and the Kosi Society. The further fact which has come out in the evidence is that the plaintiff faltered miserably when he was asked about the source from which he had the ready money in the sum of Rs. 10,000/-, to spare for advancing as loan. The lower appellate court has brushed it aside by calling it 'a little discrepancy which has occurred in the statement of Mangi Lal plaintiff'. At one place ho said that he had invested about Rs. 20,000/- in money lending business and he had advanced the amount to about 10 or 12 persons. At another placehe said that his biggest loan was of Rs. 20,000/-. Some further facts relevant in this connection were, in 1963, Mangi Lal and his brother, including Sonpal, were carrying on Arhat business jointly as a joint family firm in the name of Jayanti Prasad Rajendra Kumar. One of the plaintiff's witnesses, namely, Suraj Mal (P. W. 3) stated that the money was advanced at the shop of the plaintiff's SOD Phool Chand, which shows that either the plaintiff was carrying on no business or the business of his joint family was carried on by his son after partition between him and his brothers. At any rate it is reasonable to expect that if the plaintiff Mangi Lal, who is Vaish by caste, was carrying on money lending business by advancing loans to 10 or 12 persons with a capital of Rs. 20,000/- he would be maintaining some accounts and is most unlikely to keep a large sum of Rs. 10,000/- spare at his house earning no interest. The plaintiff has not produced the account books of his money lending business, if any. The other proved facts are that the scribe of the promissory note was a friend of the plaintiff and an Ex-Chairman of Kosi Municipal Board and belonged to the same party as the plaintiff's son. The other witnesses also belong to his party. The defendants are Jats by caste, and prosperous farmers. The first defendant was the Sarpanch of the village Nyaya Panchayat, and is said to have displeased the plaintiff by not entertaining his application for action against Gir Raj, vide Ext. A-35. The other witnesses produced by the plaintiff belonged to the same party to which he and his scribe of the promissory note belonged while the first defendant belonged to an opposite group, and further that there was criminal litigation going on between the two groups. When the discrepancies and the infirmities in the statement of the plaintiff's witnesses are looked at in this background, they show that the infirmities and discrepancies were occasioned not on account of lapses of memory but on account of the fact that they were trying to depose in support of a false case For instance the statement of the scribe Hari Ram. P. W. 2, that the promissory note and receipt were executed and the money advanced on Baisakh Radi 1, only shows that no money was advanced and the promissory note and receipt were not executed on 24th Aug., 1964, the day on which they are supposed to have been executed. This inference is strengthened by the fact that Suraj Mal, P. W. 3, was examined immediately after the statement of Hari Ram P. W. 2, on 16th May, 196a and in the very opening part of his examination-in-chief he stated that the loan was taken in the month of Bhado of Sambat 2021. This must have been done at the plaintiffs instance in an attempt to correct the blunder committed by Hari Ram, P. W. 2 in his cross-examination by stating that the loan was advanced on Baisakh Badi 1, although he was the scribe of the promissory note and with a little presence of mind he could have refreshed his memory by looking at the promissory note and the receipt rather than to make any ex tempore statement under cross-examination which was directed at testing his veracity.

19. It has also to be particularly noticed that the promissory note and the receipt are signed as Bhoodar Mal Sohan Lal by the pen of Sohan Lal, to which have been added the alleged signatures of Khoni. While it is quite usual to sign in the firm name in case of business transactions, it is rather unusual to take loans for buying a tractor, or for agriculture, or domestic expenses, as suggested by the contents of the promissory note, in such a firm name and to have it signed by more than one person as Kartas. This fact makes the plaintiff's case improbable and the defendants case probable. The scribe of the promissory note, namely, the Ex-Chairman of Kosi Municipal Board, Hari Ram, P. W. 2, was cross-examined on the point, and what he stated was that he did not know Sohan Lal's brother Bhoodar Mal; that he was asked to write the promissory note in the name of Bhoodar Mal Sohan Lal, and when he asked as to who Bhoodar Mal was, he was told that he was Khoni's father, and that was why the promissory note was being written in the name of Bhoodar Mal Sohari Lal, although it did not appear to him to be a firm carrying on business. Indeed, if the loan was advanced to Sohan Lal and his nephew Khoni, for purchasing a tractor and for agriculture and domestic expenses, it would have been more natural to have the promissory note and receipt executed in their joint names. On the other hand, if the advance was made to the joint family, then ft could not have been made in the firm name Bhoodar Mal Sohan Lal, for Sohan Lal and Khoni were not carrying on any business of tractor or agriculture or domestic expenses in that firm name. If it was advanced to their joint family, which had agriculture, then according tothe normal course of things either all the major coparceners of the family, including the other brothers of Khoni should have been made to join, or the advance should have been made in the name' of Sohan Lal alone who was the eldest male member and could have been presumed to have been the Karta of the family. Indeed the opening clause of the promissory note and the receipt scribed by Hari Ram, P. W. 2, is inconsistent with the signatures on the promissory note. The opening clause, both on the promissory note and the receipt is 'Hamki Sohan Lal Putra Nathan Va Khoni Putra Bhoodar Kaum Jat. These facts also make the first defendant's case more probable, particularly when it is not disputed that Sohan Lal the first defendant used to sell his produce in the Arhat business carried on by the Firm Jayanti Prasad Rajendra Kumar, and the plaintiff as its Karta was maintaining an account under the name of Bhoodar Mal Sohan Lal in the account books of that firm, and that Sonpal, the plaintiff's brother, was a coparcener of that joint family firm, at least up to the year 1963, and that some amount was due to that firm from Sohan Lal on account of dealings with it which came to a close in the year 1963.

20. I am convinced that the plaintiff's case was untrue and that the findings arrived at by the lower appellate court could not have been reasonably arrived at on the material on the record. The findings arrived at by the trial court, for the reasons given by it, appear to me to be correct. There was no good ground for the lower appellate court to interfere with or to reverse the findings of the trial court, and that too more on conjectures and surmises than on the material on the record. The lower appellate court acted with material irregularity in the exercise of its jurisdiction in not following the rule of practice enunciated, and the law declared, by the Supreme Court in Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh (AIR 1951 SC 120) referred to above.

21. In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the decree of the trial court dismissing the suit is restored with costs throughout. As ordered by the trial court only one set of costs, shall be taxed in favour of the two defendants-appellants against the plaintiff-respondent.


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