Deoki Nandan, J.
1. This is a defendant's second appeal from a decree of the lower appellate court for recovery of Rs. 9,520/- only, with costs from the appellant alone who was the third defendant in the suit. The decree under appeal further directs for the issue of a notice to the third defendant who is the appellant in this Court, to show cause why he should not be prosecuted for forgery which was, according to the lower appellate court, committed in the promissory note and receipt on which the suit was based. The lower appellate court dismissed the suit against defendants Nos. 1 and 2, who are defendant-respondents Nos. 2 and 3 in this Court and who are supposed to have executed the said promissory note and receipt. The trial court had found the promissory note and receipt to be genuine and had decreed the suit against defendants Nos. 1 and 2 (defendant-respondents Nos. 2 and 3 in this Court) for recovery of Rs. 9,520/- with costs andpendente lite and future interest at 3 per cent per annum on Rs. 7000/- but had not passed any decree against defendant No. 3. Defendants Nos. 1 and 2 were the appellants before the lower appellate court. The plaintiff has not appealed from the decree of the lower appellate court and is the first respondent to this, the third defendant's appeal in this Court.
2. I shall now state the relevant facts.
The plaintiff pleaded that on 1st Sept. 1963 defendants NOS. 1 and 2 borrowed the sum of Rs. 7000/- from defendant No. 3 and promised to pay it on demand with interest at 1 per cent per mensem, and, for the satisfaction of defendant No. 3, executed a promissory note and receipt for the said amount in his favour and delivered it to him, that on 5th April, 1966, defendant No. 3 transferred the promissory note to the plaintiff in good faith and for consideration; that the plaintiff was thus a holder in due course and entitled to sue on the promissory note for the recovery of the principal with interest from defendants Nos. 1 and 2; that defendants Nos. 1 and 2 did not pay the amount in spite of demands hence the suit. The amount of Rs. 9,520/- claimed by the plaintiff consisted of Rs. 7000/-on account of principal and Rs. 2,520/-on account of interest from 1st Sept. 1963 to 1st Sept. 1966 which was the date on which the suit was filed.
3. The suit was contested by defendants Nos. 1 and 2 alone. Defendant No. 3 appeared as a witness for the plaintiff and proved the execution of the promissory note and receipt by defendants Nos. 1 and 2 and stated that he had sold the promissory note to the plaintiff for a cash consideration of Rs. 8000/-, the receipt of which he acknowledged. According to his statement, defendants Nos. 1 and 2 wanted to set up a tubewell and purchase bullocks and that was the purpose for which the loan was taken.
4. Defendants Nos. 1 and 2 denied the plaintiffs claim in its entirety and pleaded that neither any amount of loan was taken by them from the third defendant nor was any promissory note or receipt executed by them in his favour on 1st Sept. 1963: and that the promissory note and receipt were forgedand fictitious. It was further pleaded that there was enmity and litigation between the plantiff and the first defendant for the last about 10 years; that defendant No. 3 was a close acquaintance of the plaintiff and he is also inimical towards defendant No. 1 and the plaintiff and the third defendant were since long threatening to harass and ruin the defendants and it appears that the plaintiff in league with the third defendant and in conspiracy with Shanker Lal and others, forged the promissory note and receipt to harass and ruin the defendants. It was then said that the plaintiff was not a holder in due course of the promissory note and was not entitled to sue, and the case set up by him was wholly false.
5. The following were the issues on which the parties went to trial:--
'1. Whether the defendants 1 and 2 executed the pronote and receipt in question in favour of defendant no. 3?
'2. Whether the plaintiff is a holder in due course of the pronote in suit? and to what effect?
'3. To what relief, if any, is the plaintiff entitled?'
Apart from the direct evidence of the first defendant, who proved the execution of the promissory note and the receipt by defendants Nos. 1 and 2 and the advance of the loan to them, as the plaintiff's first witness, the plaintiff examined Shri Salik Chandra Verma, a handwriting expert as P. W. 2, himself as p. W. 3 and Radhey Shiam, a witness of the advance of the loan, as P. W. 4. Contesting defendants Nos. 1 and 2 examined Shri Yograj Ahluwalia, handwriting expert, as D. W. 1, defendant No. 1 Dauji Ram as D. W. 2, Defendant No. 2 Norottam as D. W. 3, and Deoki Nandan as D. W. 4, The trial court appraised and analysed the whole evidence and found on issue No. 1. that defendants NOS. 1 and 2 had borrowed the alleged loan from defendant No. 3 and had executed the promissory note and receipt in suit. Its finding on issue No. 2, was that the plaintiff is a holder in due course, and on issue No. 3, that the plaintiff was entitled to the amount claimed with interest at the rate of l per cent per mensem at which it had been claimed and decreed the suit accordingly against defendants Nos. 1 and 2 only.
6. On appeal by defendants NOS. 1 and 2, the points raised by the lower appellate court for its determination were:--
'1. Whether the respondent Moti Ram was a holder in due course and entitled to maintain the suit on the pronote; and
'2. Whether there was due execution of the pronote and receipt?'
Although the basic question involved was the second one, the lower appellate court took up question No. 1 first and observed that the remedy available to t holder in due course is only on the pronote and not on the debt, and that, therefore, it must 'proceed on the basis that the plaintiff respondent seeks relief only on the basis of the pronote and if his pronote fails, it would not be open to him to fall back on the debt any longer.' It then proceeded to observe that defendants Nos. 1 and 2 who were father and son were on inimical terms with the plaintiff which had persisted for the last 10 or 11 years. According to the lower appellate court, the trial court had 'itself found that the plaintiff had purchased litigation to wreak vengeance on his enemies liable on the pronote.' It then observed 'Brijbasi Lal (the third defendant, appellant in this court) is a seasoned money lender, who knows that certain defences are open between the original parties to the pronote which are not, against a holder in due course,' and that 'it is also not easy to establish that the holder in due course had knowledge of circumstances that would affect the rights of the immediate parties, nor is it easy to contest the non-payment of full value for the pronote by him.' According to the lower appellate court 'the fact, however, that the plaintiff was the sworn enemy of the executants is a circumstance which should not be lightly brushed aside in determining whether the plaintiff was a holder in due course.' Again according to the lower appellate court, the trial court 'attached no importance to the circumstances that Radhey Shyam, a witness of the pronote, was living in the same Ahata as Brijbasi Lal' (defendant No. 3, appellant in this Court) and that the trial Judge 'has argued that defendants Nos. 1 and 2 have not stated pointedly that the signatures on the pronote and the receipt in suit are not theirs.' According to the lower appel-late court, 'the written statement clearly states that both the pronote and the receipt are a rank forgery and that they had never borrowed any such sum as was alleged.' Defendant no. 1 has stated that his relations with the drawee were also bad and that he had appeared as a witness against Brijbasi Lal in his case Under Section 145 Cr. P. C. against Suraj Bhan and he has filed a copy of the same. The lower appellate court noticed that the evidence was recorded on 15th Oct. 1966 which was subsequent to the execution of the promissory note and also that Moti Ram has also appeared as a witness for Brijbasi, the defendant-appellant and that Shanker Lal, the scribe of the pronote was also a witness for Brijbasi Lal in the Section 145, Cr. P. C. case. From this the lower appellate court inferred, 'it seems plain to my mind that Moti Ram and Shanker Lal were thick with Brijbasi Lal at least in 1966 when they gave evidence for him in Section 145 Cr. P. C. proceeding.' The lower appellate court then took into consideration the circumstances that although defendant No. 1 had three adult sons. Only one of them Narottam, the second defendant, was made to sign the pronote and Brijbasi Lal, the third defendant had admitted that no money was paid to Narottam as such. Further, according to the lower appellate court 'no land was entered in the name of Narottam, as such and so if any money had to be realised from Narottam on any debt owed by him, the inclusion of Dauji Ram was important to reap the fruits of litigation.'
7. The lower appellate court then considered he report of the plaintiff's expert Shri Verma and in doing so made the following observations:--
'Sri Verma compared the supposed thumb marks of Dauji Ram taken before the counsel for the parties on 1-4-1967 marked Section 3 and Section 4, with the disputed thumb marks on the receipt and pronote. The disputed thumb marks were photographed by him and were marked respectively Q. 1 and Q. 3 in his photographs. He found Q. 3 too blurred for comparison. Q. 1 he found partly clear. Q. 1 is the purported thumb marks of Dauji Ram on the receipt. He found that Rule 1, did not tally with Section 4. So the disputed signature was not the right thumb mark of Dauji Ram. He however found marks of similaritybetween the left thumb mark in the sample and the disputed thumb mark on the pronote purporting to be of Dauji Ram. Unfortunately the thumb marks available for comparison with the disputed thumb marks are themselves not authentic. The thumb marks purporting to be that of Dauji Ram cannot be said to be his with certainty for the original endorsement was that they were the thumb marks of Narottam son of Dauji and these two names were crossed out and replaced by Dauji s/o Chet Ram. The correction seems to have been initialled by only Sri Mishri Lal, the counsel for the plaintiff, and not by Ch. Kamta Prasad counsel for the defendant. A similar correction appears in the endorsement on the thumb mark of Narottam s/o Dauji Ram which originally stood as Dauji s/o Chet Ram, Ch. Kamla Prasad has endorsed on this letter mentioning that the thumb impressions of Narottam were taken before him. The endorsement by Ch. Kamta Prasad on the other sheet purporting to be now the thumb marks of Dauji merely mentions that the thumb marks were taken before Sri Kamta Prasad. I called the two counsel and Sri Kamta Prasad categorically stated that the corrections were not made within his knowledge. Thus even if we were not were to accept the findings of Sri Varma as correct, although I am not inclined to agree with him in the matter, it would be an exercise in futility to rely on the thumb marks made available for comparison. Even the thumb mark which the Expert Sri Varma considers partly clear appears to me too blurred for any satisfactory comparison. I would therefore leave out this piece of evidence.'
'I now turn to a consideration of the signatures. Varma compared the signatures of Narottam on the pronote and receipt with his purported signatures on the English order-sheet and two Vaka-latnamas. Of these the signature on the order-sheet is A-2 and Narottam's signatures have not been admitted by the counsel for the defendant or by the defendant Narottam himself. Exs. A-3, A-4 and A-6 have again not been admitted either by the counsel for the defendant or the defendant himself. In respect of Ex. A-9 the endorsement of the junior of Sri Kamta Prasad is that the signatures have not been specifically denied. Thus in relation to thesignatures of Narottam only Ex. A-8 can be said to be available for comparison with Exs. Q-6 and Q-8.'
Having said so much, the lower appellate court proceeded to record some of its own observations with regard to Q-8 and Ext. A-8 and concluded by saying:--
'I am not prepared to say that the conclusions of the Expert indicating that the two signatures tally are sound.' But in the immediately following sentence it observed:--
'If however we compare the signatures of Narottam on the written statement with the disputed signatures Q-6 and Q-8 in the photograph they do appear to tally.' But 'these are not available for comparison.' because 'they have not been admitted or proved to be signatures of Narottam.' The lower appellate court observed that 'it certainly is very odd that Narottam should not admit his signatures on the written statement' but 'all the same until these have been proved or admitted to be his signatures a comparison with them would be futile,' and that 'at best the acceptance of these signatures as genuine ones of Narottam would lead to the inference that the pronote and receipt bore the signatures of Narottam.'
8. The lower appellate court followed it up by saying, 'If Dauji Ram's signatures on the pronote and receipt are proved to be a forgery then no action would lie on this pronote and receipt as the addition of Dauji Ram's signatures would amount to material alteration in the pronote and receipt provided the holder in due course was aware of the forgery.'
9. It then turned its attention to the signatures of Dauji Ram and having recorded its own observations, it observed: 'I have examined all the signatures with a powerful magnifying glass fitted with light and have kept in view the findings of the Expert Sri Yograj Ahluwallia and am inclined to agree that the signatures of Dauji Ram on the two are definitely forged and they do not tally with the admitted signatures of Dauji Ram.'
10. Having said so much the lower appellate court further criticised the evidence of Sri Varma by saying that he appears to be new to the professionhaving worked for three and half years and to have received training from a private expert, and had not received any training in photography and observed that, 'In his corss-examination he stated that the thumb mark of Narottam was the right hand thumb mark,' although he had to concede that he did not mention that fact in his report, Normally, left hand thumb marks are affixed to documents. This Expert had no business to suppress this fact in his report. His conclusions appear to me to be based on vague generalization found in the report of every Expert and his observations and conclusions do not appear to me to be sound.'
11. The final conclusions drawn by the learned Judge were : 'My own conclusions are that the signatures available for comparison do not tally in both the cases and the differences that have been found by me cannot be brushed aside as merely chance variations. The alleged spreading of ink in the case of Ex. Q-5 does not seem to me accidental at all and it seems to cover some underwriting. The signatures are extremely suspicious. Having arrived at these conclusions it is obvious that the plaintiff must fail in his suit against Dauji Ram and Narottam, as the pronote and receipt show clear forgery.'
12. The end paragraphs for fixing the liability on the third defendant must now be quoted in full.
'It remains now for me to consider whether the plaintiff can maintain his action against Brijbasi Lal, the original drawee of the pronote. The lower Court has found him a bona fide transferee for value and there being only some suspicious circumstances detailed above this conclusion of the lower Court seems on the whole justified. There is nothing definite in the evidence to indicate that Moti Ram was aware of the forgery of Dauji Ram's signatures on the pronote and receipt. Unless this knowledge can be attributed to him, he having paid good value for the pronote, would be entitled to maintain his suit against the original drawee Brijbasi Lal on the pronote. Of course the forgery could have been committed either by or at the instance of Brijbasi Lal or Moti Ram. If it had been committed by Moti Ram, Brijbasi Lal would certainly have refuted his own liability on the pronote. The two appear to be in collusion.'
'However, I have no doubt that a foregery was committed in this case, I think it expedient in the interest of justice that Brijbasi Lal be prosecuted for committing a forgery in a valuable security. Bribasi Lal of course would not be able to recover anything on this forged pronote. Even if the signatures of Narottam on the pronote and receipt were found to be genuine the material alteration in the pronote, a negotiable instrument, the addition of Dauji Ram's name, would disentitle him from maintaining his suit against even Narottam. I would therefore decree the suit of Moti Ram against Brijbasi Lal in full while dismissing it against Dauji Ram and Narottam.'
13. TO begin with it was urged that the lower appellate court committed an error of law in decreeing the suit in favour of the plaintiff as the holder in due course of the promissory note in suit against the third defendant in spite of its finding that the promissory note was a forgery; and that Order 41, Rule 33 of the Civil P. C. did not authorise the lower appellate court to pass a decree against the third defendant on a cause of action wholly different from that pleaded in the plaint and that too as if by way of punishing the third defendant for the offence of having forged the promissory note, It was urged in this connection that if the plaintiff and the third defendant were in collusion, as found by the lower appellate court, no decree could be passed in favour of one against the other. The suit as a whole was bound to fail and merited dismissal on the finding that the promissory note had been forged, in view of the finding of the lower appellate court that the plaintiff sought relief only on the basis of the promissory note and if that failed, it would not be open to him to fall back on the debt any longer. The lower appellate court has not arrived at a finding that the plaintiff was a holder in due course, It has instead made certain self contradictory observations. Having said that the plaintiff could succeed only on the basis of the promissory note and if that failed it would not be open to him to fall back on the debt, it observed that the trial court had found that the plaintiff had purchased litigation to wreak vengeance on his enemies liable on the pronote that it is not easy to understand thatthe holder in due course had any knowledge of circumstance that would affect the rights of the immediate party, nor is it easy to contest the non-payment of full value for the pronote by him and that the circumstance of the plaintiff being the sworn enemy of defendants NOS. 1 and 2 should not have been lightly brushed aside in determining whether the plaintiff was a holder in due course or not. But in the end while examining the question whether the plaintiff could recover against the third defendant, it observed that the trial court has found the plaintiff to be a bona fide transferee for value and there being only some suspicious circumstances this conclusion of the trial court seems on the whole justified as there was nothing definite in the evidence to indicate that the plaintiff was aware of the forgery of the first defendant's signatures on the promissory note and receipt, and unless this knowledge could be attributed to him, he wag entitled to maintain the suit against the third defendant to whom he had paid good value for the pronote, and yet the lower appellate court found that the plaintiff and the third defendant were in collusion. It was urged that these findings were self contradictory and inconsistent with each other. If the plaintiff was in collusion with the third defendant it could not be said that he was not aware of the forgery of the promissory note or that he was a holder in due course having purchased the promissory note for value and without knowledge of the forgery.
14. Having heard learned counsel, I found that the third defendant had stated on oath that he had sold the promissory note for Rs. 8000/- which was paid to him in cash by the plaintiff. A promissory note is a valuable security. If the promissory note was a forgery and the plaintiff had paid Rs. 8000 in cash to the third defendant as admitted by him on oath, as the price of the promissory note, and the plaintiff was not aware of the forgery of the promissory note when he purchased it, as found by the lower appellate court, it could well be said that the plaintiff could recover nothing on the basis of the promissory note as its holder in due course but may have recovered the amount paid by him to the third defendant as the price of the promissory note which turned out to be a forgery, byway of a claim for restoration of the benefit received on discovery that the contract of sale was void under Section 68 of the Contract Act but there was no such plea in the case and the lower appellate court has even found that the plaintiff and the third defendant were n collusion. There could be no doubt that the plaintiff could recover nothing if it was found that he had purchased litigation with his eyes open and was aware of the forgery of the promissory note in order to wreak vengeance against defendants Nos. 1 and 2 and of course, if it were found that the plaintiff had got the promissory note forged in favour of the third defendant and then he got it endorsed in his favour in order to take advantage of the law of negotiable instruments giving certain advantages to a holder in due course over the original drawee, all with a view to wreak his vengeance against defendants Nos. 1 and 2 there could be no doubt that the plaintiff could recover nothing.
15. Confronted with this situation, learned counsel for the plaintiff-respondent and the defendant-appellant both joined and urged that the finding of the lower appellate court that the promissory note was a forgery, was erroneous and being vitiated by errors of law, it was not binding even on second appeal. At this, learned counsel for defendants Nos. 1 and 2 urged that the finding was a finding of fact which had been arrived at by the lower appellate court on a careful appraisal and analysis of the evidence on the record and was binding on second appeal and further it was not open to the plaintiff-respondent to urge that the finding was incorrect inasmuch as he neither appealed from the decree of the lower appellate court nor had he assailed the correctness of the finding or of the decree even by way of a cross-objection.
16. To get over this triangular conundrum, I permitted the learned counsel for third defendant who is the appellant in this Court and who could undoubtedly question the findings against him and particularly the finding that the promissory note was a forgery, in view of which even an enquiry against him had been ordered, to show, if he could, that the finding was erroneous and vitiated in law.
17. I have in the earlier part of this judgment reproduced in extenso, the findings arrived at by the lower appellate court in its own words. The first thing which strikes me in this case is that the fact of the previous enmity between the plaintiff and defendants Nos. 1 and 2 is irrelevant in so far as the genuineness of the promissory note is concerned. It is too much to say that the third defendant would forge the promissory note and receipt on his own and then sell, it for a cash consideration of Rs. 8000/- to the plaintiff who was a sworn enemy of defendants Nos. 1 and 2 unless defendant No. 3 had his own axe to grind against defendants Nos. 1 and 2 and the plaintiff for by doing so the third defendant would be committing a fraud not only on defendants Nos. 1 and 2 but also on the plaintiff. The approach of the lower appellate court was coloured by relying on this irrelevant consideration. It is true that the fact that the plaintiff was the sworn enemy (of) defendants Nos. 1 and 2 is a circumstance which could not be lightly brushed aside in determining whether the plaintiff was a holder in due course or not but that was wholly irrelevant for finding out whether the third defendant had forged the promissory note on his own and without the knowledge of the plaintiff which had then been sold for a cash consideration of Rs. 8000/- to the plaintiff. The villain of the piece was the third defendant and not the plaintiff, and accordingly if motive was relevant it was the motive of the third defendant which mattered. Thus the existence of enmity between the third defendant and defendants Nos. 1 and 2 might have been relevant for finding out whether the third defendant had forged the promissory note in order to harass defendants Nos. 1 and 2 but that was nobody's case, and a person cannot easily set up and prove a story of having advanced money to a sworn enemy by way of loan, but the lower appellate court has found that the plaintiff. Shanker Lal, the scribe of the promissory note 'were thick with Brijbaai Lal (the third defendant) at least in 1966 when they gave evidence for him in Section 145 Cr. P. C. proceedings.' The proceedings under Section 145 Cr. p. C. were against one Surajbhan. The connection between Surajbhan and defendant Nos. 1 and 2 has not been broughtout in the judgment of the lower appellate court. At any rate the finding refers to the year 1966 and the date on which the said evidence was given is 15th Oct. 1966, the suit giving rise to the present second appeal was filed on 1st September, 1966. The connection between this fact and the execution of the promissory note is not at all clear. The lower appellate court has also observed that Radhey Shyam, a witness of the promissory note was living in the same Ahata as the third defendant. That may be so but the fact that the witness of the receipt of money paid on a promissory note happens to be living in the same Ahata would show that the witness was easily available and not necessarily that he is a got-up witness unless of course one starts judging the evidence of a party's witnesses from the wrong angle by ascribing a motive to each witness and then discarding his evidence on that basis rather than on an objective appraisal of what he states on a balance of probabilities in the light of the proved facts and circumstances of the case and the pleadings of the parties. Another fact taken note of by the lower appellate court was that the first defendant had three sons but only Narottam was made to sign the pronote when no money was paid to Narottam. If no money was advanced to Narottam and no land was recorded in the name of Narollam I do not understand how that fact showed that if any money had to be realized from Narottam on any debt owed by him the inclusion of Dauji Ram the first defendant was important to reap the fruits of litigation.
18. What is surprising is that the lower appellate court did not discuss any more than what has been noticed above, the evidence of the plaintiff's witnesses Brijbasi Lal P. W. 1 and Radhey Shyam P. W. 4 who had directly testified to the execution of the promissory note and the advance of the loan and the execution of the receipt therefore, instead it started unrolling all the possible criticism that could be levelled against the report and the evidence of the expert P. W. 2.
19. The evidence of a handwriting expert is opinion evidence. His opinion about the identity of thumb impressions was not accepted by the lower appellate court for the reasons given by it, and even after undergoing all the ex-ercise and the pains which the lower appellate court took in examining the expert evidence in some detail, the conclusion arrived at by it was that while the signatures of Narottam on the promissory note and the receipt are those of the second defendant, the signatures of Dauji Ram, the first defendant were forged. The more strange part of the reasoning given by the lower appellate court is that Narottam's signatures on the written statement and Vakalatnama were not admitted to be his and that the specimen fingerprints said to be of Narottam, which were taken before the court, could not be said to be his because the names of Dauji Ram and Narottam were interchanged on the two sheets on which the specimen fingerprints were taken. If Narottam did not admit the singnatures purporting to be his on the written statement and the Vakalatnama the first question which should have been raised by the lower appellate court was whether the defence put on behalf of Narottam was enter-tainable at all. The case before the lower appellate court was a civil case and not a sessions trial. To me it appears inconceivable to accept an argument that the signatures of a party on his written statement and Vakalatnama are not admitted by that party in court and, therefore, those signatures cannot form a basis for comparison with that party's disputed signatures on some document put in evidence. If a party does not admit the signatures on the pleading on the basis of which that party defends the case and does not admit the signatures on the Vakalatnama on the basis of which the counsel of that party appears in court, the defence of that party can very well be treated as non est and the learned counsel purporting to appear for him told to file a proper Vakalatnama. With regard to the fingerprints on the sheets purporting to (be) the specimen fingerprints of Narottam. There is a note made under the own hand and signatures of his counsel Mr. K. Prasad that 'The thumb impressions of Narottam were taken before me.' The lower appellate court has strangely indeed omitted to take that note into consideration and to have given his ear to such pleas as were advanced by Mr. Kamka Prasad, when called by the lower appellate court, that the corrections were not madewithin his knowledge. The lower appellate court could not have doubted the genuineness or the authenticity of the record of the trial court certified by the learned Civil Judge in his own hand and dated signatures, to the effect that the thumb impressions were taken before him. The correction of the names of Dauji and Narottam appears fo have been made in the same handwriting in which the note was made immediately below the thumb impressions by the person who has signed thereunder. A bare look on the two sheets would also show that the fingerprints on the first sheet said to be of Narottam were definitely of a person younger in age than the fingerprints of the person on the second sheet. Narottam was the son of Dauji Ram and must have, therefore, been younger' in age.
20. A look at the promissory note and the receipt shows that the two documents bear the signatures of Dauji Ram, the first defendant at five places and those of Narottam at four places besides two thumb impressions is of each one of them on one each of the two documents. A person out to commit forgery would in the ordinary course of things avoid having to forge so many signatures and would surely avoid taking thumb impressions because it is well known that the science of identification of fingerprints is much more precise than the science of identification of handwriting. A forger would not unnecessarily increase the chances of discovery of forgery in such a way. The lower appellate court has observed that the thumb impression on the promissory note and the receipt were so blurred as not to admit of any comparison. I do not think that to be correct. The thumb impressions are not so blurred. They could surely be deciphered by a competent expert.
21. However, before going on to enter into the arena of an expert of handwriting and fingerprints I would rather deal with the oral evidence for if the oral evidence leads to a positive conclusion one way or the other the opinions of experts have to yield or have to be accepted or rejected in accordance with the finding arrived at on an appraisal of direct oral evidence. It is only where there is no direct evidence that expert evidence becomes relevant. It may be that in a given case the opi-nion evidence about the identity of, fingerprints or handwriting may be sol categorical and indisputably good that a party's case to the contrary sought to be proved by his own interested testimony or the testimony of such witnesses as could be said to be equally interested or otherwise unreliable. may be disbelieved in the light of the opinion of the expert. But if the direct evidence of the witnesses is clear and there is nothing improper or incredible about their evidence and the same is believed by the trial court which had the opportunity of seeing the witnesses and watching the demeanour, and there is no other evidence on the basis of which the direct evidence of those witnesses could be discredited as false, the opinion of the experts cannot outweigh such direct evidence.
22. I accordingly read the oral evidence and also read the appraisal of it that has been made by the trial court in its finding on issue No. 1. The learned Civil Judge, Mr. P. C. Saxena, who tried the suit and gave judgment for the plaintiff against defendants Nos. 1 and 2 had the added advantage of having himself recorded the oral evidence and having seen the demeanour of the witnesses. I am of the opinion that there is no such inherent improbability in the case against defendants Nos. 1 and 2, and there is no proved fact or circumstances or other evidence on the record which could justify the lower appellate court's reversal of the finding arrived at by the trial court on issue No. 1 about the due execution of the promissory note and receipt by defendants. Nos. 1 and 2 in favour of defendant No. 3. If the promissory note and the receipt had not been genuine, the third defendant would have been the last person, to appear as a witness for the plaintiff and to have sworn on oath not only about the advance of the loan and the execution of the promissory note and the receipt by defendants Nos. 1 and 2, but also about having sold that promissory note for Rs. 8000/- to the plaintiff and to have admitted the receipt of that amount from the plaintiff in cash. At any rate the third defendant would have surely avoided admitting having received the amount of Rs. 8000/- in cash as the consideration of the transfer of the promissory note by him to the plaintiff. The finding of the lower appellatecourt is on the other hand based entirely on a wrong approach and irrelevant considerations rather than on the direct evidence on the record.
23. Having come to this conclusion I do not propose to enter into the arena of trying to judge the relative merit of the conflicting opinions of the two experts. The learned Judge of the lower appellate court has observed that the signatures of Narottam on the written statement with the disputed signatures do appear to tally but at the same time said that if Dauji Ram's signatures on the promissory note and receipt are proved to be a forgery then no action would lie on the promissory note. The conclusion is to say the least untenable, It was not a case where on a genuine promissory note and receipt executed by Narottam, the thumb impressions and signatures of his father Dauii Ram were forged at a later stage. There has been some criticism about one of the signatures of Dauji Ram in which the ink is blotched. That has been taken to be a case of overwriting but there are other signatures on the same promissory note. To me the inferences drawn by the learned Judge of the lower appellate court on this point appear to be perverse. I have already observed that he has not appraised the oral evidence and the findings recorded by him are not based on evidence but on irrelevant facts and circumstances and wholly wrong approach to the case.
24. I hold in agreement with the trial court that the promissory note and the receipt are genuine and the third defendant did advance the loan evidenced by the promissory note to defendants Nos. 1 and 2. This brings me to the question whether the plaintiff can yet sue on the promissory note as a holder in due course. The third defendant admitted in his statement on oath the receipt of cash consideration for the transfer. It may be that the motive of the plaintiff in buying the promissory note and suing upon it was to have the opportunity of wreaking his vengeance against defendants Nos. 1 and 2 in yet another litigation in the civil Court The amount due on the promissory note was said to be above Rs. 90/- on the date of its sale but the consideration for sale was Rs. 8000/-. As a seasoned money lender, as the third defendant has been found to be, he might havewell chosen to sell the promissory note tor Rs. 8000/- rather than to cross sword with defendants Nos. 1 and 2 in courts of law leading to such uncertain results as were reached in this ease itself. Be that as it may motive is irrelevant in a civil action. The fact that the plaintiff has been a sworn enemy of defedants Nos. l and 2 could not be a ground for refusing his claim for recovery of the amount due on the promissory note, once the court reaches the finding that the plaintiff is a holder in due course of the same.
25. This leads to the consideration of the question raised by the learned counsel for defendants Nos. l and 2 that even so this Court could not, while allowing the appeal of the third defendant and relieving him from the liability under the decree of the lower apppllate court, give a decree to the plaintiff against defendants Nos. 1 and 2. In view of these findings it is not necessary to go into the question whether the plaintiff could get a decree against the third defendant on the foot of the promissory note on the basis that it was forged. I may, however observe that Section 58 of the Negotiable Instruments Act would not have protected the plaintiff as the holder in due course, in a ease like the present one, if it were found that the promissory note was forged. See Jai Narain v. Mahboob Bux ((1906) 3 All LJ 203) and Thorappa Devenappa v. Umedmalji (AIR 1924 Bom 205).
26. The point so raised is, however wholly without merit for this Court has the fullest jurisdiction under Order 41, Rule 33, to pass a decree against defendants Nos. 1 and 2 who are respondents Nos. 2 and 3 in this Court, in favour of the plaintiff who is respondent No. 1, while allowing the appeal of the third defendant, who is the appellant in this Court. The ruling of the Supreme Court in Panna Lal v. State of Bombay : 1SCR980 is ample authority for the same. The ruling shows that it was not necessary for the plaintiff-respondent to have filed a cross-objection and relief could be granted to the plaintiff against defendants Nos. 1 and 2 who are respondents Nos. 2 and 3 in this second appeal which has been preferred by the third defendant. No other point survives for consideration.In the result the appeal succeeds and is allowed with costs, against respondents Nos. 2 and 3. The judgment and decree of the lower appellate court are set aside. The decree of the trial court for recovery of Rs. 8,520/- with pendente lite and future interest at 3 per cent per annum on Rs. 7000/- by the plaintiff against defendants Nos. 1 and 2 is restored with costs incurred by the plaintiff in the trial court. The third defendant who is the appellant in this court shall be entitled to his costs in the lower appellate court and in this Court against defendants Nos. 1 and 2 who are respondents Nos. 2 and 3 in this Court. The plaintiff respondent shall bear his own costs in the lower appellate court and in this Court.