S. Acharya, J.
1. The defendant has preferred this appeal against the reversing decision of the court below. The plaintiff's suit is, for recovery of Rs. 1900/-from the defendant.
2. According to the plaintiff, the defendant was In friendly relation with the plaintiff. On 10-8-68 the defendant, being in need of money, approached the plaintiff to give him Rs. 1900/- on loan promising to repay that amount within two months. The plaintiff gave that amount to the defendant as requested, and the defendant executed the receipt Ext. 1 in favour of the plaintiff on receiving the said amount. But as he did not repay the amount as promised the plaintiff instituted this suit.
3. The defendant's case Js that he did not take the aforesaid amount from the plaintiff, nor did he execute any receipt In favour of the plaintiff acknowledging payment of the said amount to him by the plaintiff.
4. The trial court dismissed the plaintiff's suit on the finding that the plaintiff could not establish that he gave the said amount of Rs. 1900/- to the defendant.
5. The appellate court, on a fresh reassessment of the evidence on record and on a comparison of the alleged signature of the defendant In Ext. 1 with his admitted signatures In his written statement and other documents on record, reversed the finding of the trial court, and held that the plaintiff was successful in establishing his case that he gave Rupees 1900/- to the defendant by, way of an accommodation loan and obtained the receipt Ext. 1 from the defendant In acknowledgment of the receipt of the said amount.
6. Mr. Mohapatra, the learned counsel for the appellant, contends that the learned Judge of the first court of appeal committed a substantial error or defect in the procedure by himself comparing the alleged signature of the defendant In Ext. 1 with the other admitted signatures of the defendant appearing in other documents on record as thereby the Judge relegated himself to the position of a witness in this case, and he could not have done so especially in view of the fact that no expert evidence was given in this case enabling comparison of the disputed signature in Ext. 1 with the other admitted signatures on record,
7. It is well settled that a finding of fact of the appellate court can be reversed or interfered with if it suffers from any substantial error or defect in the procedure. In this connection the judgment in Second Appeal No. 50 of 1975 delivered by me on 31-1-1978 : (reported in AIR 1978 Orissa 153) may be seen.
8. Section 73 of the Evidence Act provides that-
'73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing, or seal Is that of the person by whom It purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.'
(The 2nd and the third paragraphs of that section are not relevant.)
So it cannot be said that by comparing such signatures the Judge relegates himself to the position of a witness.
9. The propriety of a Judge comparing disputed signatures by himself has been called in question In a number of decisions, In the Division Bench decision reported in AIR 1925 Cal 485 (J. C. Glastaun v. Sonatan Pal) It has been observed that the practice of a judge declaring whether a disputed signature agrees with the other signatures of a certain person, without the assistance of any evidence but merely on his own inspection, has been disapproved by experienced iudges in many cases. In para 30 of the Full Bench decision reported In AIR 1961 Cal 461 (Saurendra Mohan Basu v. Saroj Ranjan Sarkar) it has been held as follows:--
'Now while it is competent on the part of a judge or a Magistrate to compare the disputed signatures with the admitted signature for himself, vide Section 73 of the Indian Evidence Act, it is unsafe to rely entirely on such persona comparison. Reference may be made in this onnection to the decisions 5 J. C. Glastaun v. Sonatan Pal, AIR 1925 Cal 485; Darshan Singh v, Prabhu Singh, A.I.R. 1946 All. 67 and Kessarbai v. Jethabhai, A.I.R. 1928 P. C. 277.'
(The underlines above are mine).
Be it noted that in the above observations conclusion merely on comparison of signatures by Judges themselves without the assistance of any other evidence is disapproved.
In the case reported in A.I.R. 1946 All 67 (Darshan Singh v. Prabhu Singh) the comparison of the signatures was done by the Judge in his chambers and not in the court in the presence of the counsel appearing for both the parties. Their Lordships of that court and of the Calcutta High Court have deprecated such comparison.
Justice P. B. Mukherjee in the case reported in A.I.R. 1961 Cal. 300 (Bisseswar Poddar v. Nabadwip Chandra Poddar), while agreeing with the judgment written by Justice Bose in that case, made certain observations on this aspect of the matter some of which I am tempted to quote herein below (at P. 306) :--
'............I am unable to subscribe to the view of judicial blindness that a court is prevented by law to use its own eyes either in addition to handwriting expert's evidence on the point or even in the absence of such expert evidence on the point.'
In para. 37 his Lordship stated that -
'On the interpretation of the relevant sections of the Evidence Act and on a review and examination of the case law on the subject, I am satisfied that there is no legal bar to the Judge using his own eyes to compare disputed signature with admitted signatures even without the aid of any evidence of any handwriting expert. There are also other reasons to support this conclusion. What happens in those cases of disputed signatures where neither party calls any handwriting expert or where no handwriting expert may be available as in some of the courts in the districts Is the judge bound to call a handwriting expert as a court witness He can do so if he wants to. But I do not think he can be forced to do so or that he is obliged to do so, if he feels that he can on the evidence of other witnesses on the point and by comparison of signatures come to his own conclusion on the point, so long as the court bears in mind the caution that such comparison is almost always by its nature inconclusive and hazardous.'
There are other passages in that judgment which may aptly by referred to on this topic.
In the present case before me, the court below, on a fresh reassessment of the evidence of P.Ws. 1 to 4, finds that the signature in Ext. It is that of the defendant. While considering then evidence the Judge has also compared the disputed signature in Ext I with the other admitted signatures of the defendant, and considering all that he has arrived at a firm conclusion that the signature in Ext. 1 is that of the defendant. His said conclusion therefore is not based entirely on his personal comparison of the signatures; that comparison was made, as it appears from the impugned judgment, for the purpose of receiving confirmation to his conclusion on that aspect on other evidence on record. Comparison of signature by Judges under such circumstances does not call for any comment. Calling a handwriting expert may not always be possible or a desirable proposition. Comparison of signatures by court is not and should not be dependent on the examination of a handwriting expert.
10. P.Ws. 1, 2 and 3 have stated that the said document was written in their presence and the defendant signed the said document on receiving Rs. 1900/-from the plaintiff. P.W. 4 has specifically stated that he was present when Rs, 1900/- was given by the plaintiff to the defendant; and in his presence P.W. 2 wrote out the receipt Ext. 1, and the defendant put his signature at the bottom of the said document. He has further stated that he is acquainted with the signature of the defendant. The defendant in his cross-examination could not deny that the disputed signature in Ext. 1 was not his.
To test the correctness of the testimony of the plaintiff's witnesses and to appreciate the other evidence on record on this aspect the court below was justified in comparing the disputed signature of the defendant in Ext. 1 with his admitted signatures in other documents on record. Accordingly, the court below did not commit any error or defect in appreciating the evidence on record in the aforesaid manner. I, therefore, do not find any merit in the above-mentioned contention of Mr. Mohapatra.
11. It is further urged by Mr, Mohapatra that the court below should not have placed reliance on the plaintiff's case that he paid the said amount to the defendant on 10.8.68 as the plaintiff did not produce the register of the firm from whose account the said money was allegedly advanced as stated by the plaintiff. The above fact was not raised in any of the courts below and it does not merit any consideration at this stage.
12. The other points raised by Mr. Mohapatra are by way of challenging only some findings of fact which have all been answered by the court below, and the same do not merit any consideration in this second appeal.
13. On hearing the counsel appearing for both the parties I am satisfied that there is no merit in this appeal and it is accordingly dismissed with costs.