Vasanta S/O Sahadeoji Bhoyar vs Walmik S/O Shivaji Bansod
2004 Latest Caselaw 760 Bom

JUDGMENT

Anoop V. Mohta, J.

1. This Second Appeal has been filed by the original Defendant/appellant herein, against the original plaintiff-respondent herein, and thereby challenged the judgment and decree dated 1st August, 1991, passed in Regular Civil Appeal No. 80 of 1990 whereby, judgment and decree passed in Regular Civil Suit No. 88 of 1985 dated 4th April, 1990, was set aside and modified and thereby, directed the defendant to pay; the suit amount with interest and costs. The Second Appeal was admitted on 27th November, 1991, on the following question of law:

"Whether the finding of the appellate Court which does not consider the intrinsic evidence supplied by the disputed document would be a proper finding which could be binding in the Second Appeal?"

2. The appellant had filed Suit No. 88 of 1985 against the respondent for recovery of Rs. 4,200/- as hand loan based on the agreement dated 13th February, 1982. As the respondent did not repay the said amount, notice was sent to repay the said loan amount. There was no reply to the said notice. Therefore, suit was filed. The respondent resisted the same by Written Statement and apart from other, the said agreement was denied. The parties led evidence, including Expert's evidence. The agreement in question, filed in the suit, was not exhibited. The learned Trial Judge, therefore, held that the appellant failed to prove the payment of Rs. 4,200/- on 13th February, 1982 to the respondent as the agreement itself was not proved. It was held that the suit agreement was a false, fake and forged document and, therefore, the suit itself was dismissed.

3. The respondent, therefore, preferred a Regular Appeal No. 80 of 1990. The First Appellate Court, alter considering the material, as well as, the evidence on record including the documents in question, held that on 30th September, 1982, the appellant obtained hand loan of Rs. 4,200/- by executing the agreement in question and, therefore, reversed the Trial Court judgment and decree and the said suit was allowed and decreed, as prayed. Being dissatisfied and affected by the same, appellant-original defendant has preferred the present Second Appeal.

4. Heard learned counsel appearing for the appellant and after going through the reasoning given by the Courts below, as well as, the evidence and material placed on record, there is no case made out to interfere with the reasoning given by the Appellate Court. There is no perversity and/or illegality while allowing the suit and reversing the judgment and decree passed by the Trial Court. As the whole case revolves around the agreement dated 13th February, 1982. We have gone through the original record and verified the original document. The Expert's opinion on this document is also part of the record. There is no dispute that the scriber of this document, as well as, one attesting witness of this document was examined. The Appellate Court, therefore, considered these aspects and accordingly has reversed the judgment of the Trial Court.

5. The learned counsel appearing for the appellant basically contended that the judgment of the Trial Court is correct as the learned Trial Judge, after considering the material, as well as, the evidence on record, observed specifically that the said document was false, bogus and cannot be relied upon. The said document, in fact, was not even exhibited. Therefore, the reversal of the Appellate Court by overlooking the intrinsic evidence and material placed on record before the Trial Judge, was not correct and cannot be said to be reasonable and/or proper. Therefore, the learned counsel submitted that the Appeal be allowed and the judgment and decree passed by the Trial Court be maintained. Learned counsel further relied on Section 73 of the Evidence Act and contended that in such cases, the Court should examine or verify the document and/or signature and/or the writing and should give its own opinion on merits of such document. The Expert's opinion cannot be relied as a final word on the subject.

6. The First Appellate Court observed while reversing the judgment and decree as under:

"He also did not rely upon the opinion given by handwriting expert Mr. Kotwal who stated in his deposition that there is signature of respondent on the agreement. In fact, the appellant witness Shatrughna and Jivraj in their deposition recorded in the suit at Exhs. 24 and 28 categorically stated that the agreement was read-over to the respondent and the respondent thereafter, obtained loan of Rs. 4,200 from the appellant, then the said document ought to have been exhibited by the learned Judge because as per paragraph 524 of the Civil Manual, after the parties have proved the document it is the duty of the Judge to give exhibit to the said document. In the instant case, the appellant has proved the document by examining the scribe and one of the attesting witnesses. Though P.W. 4 Udaybhan has turned hostile and did not support to the appellants case, till after recording of evidence of the scribe and one of the attesting witnesses named Jivraj, the learned Judge ought to have exhibited the said document. Moreover, the handwriting expert Mr. Kotwal has also stated in his deposition that there is signature of respondent on the agreement. He gave opinion after comparing the said signature with the signatures of respondent which are on written statement, Vakalatnama and other admitted documents."

7. After considering the above observation, as well as, the basic documents on record, as contended and submitted by the counsel appearing for the respondent, I am also of the view that the reasoning given by the First Appellate Court is proper and needs no interference. The opinion of the Expert cannot be disrespected unless some more material and/or some contrary evidence and/or report is placed on the record by the contesting party. In the present case, there is an expert opinion on the record. The said expert opinion is duly proved by examining the said Expert himself. Such expert opinion, therefore, cannot be discarded. There is no contrary evidence on the record. After going through the original document, as requested by the counsel appearing for the appellant, it is difficult to give another or any contrary opinion. Apart from this, in the Second Appeal, unless there is great perversity or illegality and/or second view, even if possible, there is no need to express different opinion specially when the reasoning is based on Expert's evidence on the record. The learned First Appellate Court rightly observed that in view of paragraph 524 of the Civil Manual, once the document is placed on the record and if it is duly proved by the parties, it is a duty of the Judge to give exhibit number to the said document. . In the present case, the appellant has proved the document by examining the scribe and the attesting witnesses Udaybhan and Jivraj. In such circumstances, there was no reason for the learned Judge not to exhibit the said document. Out of two witnesses, even if one witness had turned hostile (PW4 Udaybhan), still the agreement dated 13th February, 1982, cannot be discarded. The evidence of the parties, one attesting witness and the scriber are sufficient to prove such agreement. In this view of the matter, the learned Trial Judge ought not to have dismissed the suit on the finding that the said agreement was false, fake and forged document. Once the document is proved and if the case is made out by leading evidence based on the pleadings, in my view also, the suit as decreed by the Appellate Court, by reversing the judgment and decree passed by the Trial Court is fair and reasonable and needs to be interfered with. According to me, the Appellate Court has rightly considered the material, as well as, the evidence and has rightly interpreted the disputed document and, therefore, such proper finding is binding on the Second Appeal also.

8. Therefore, the Second Appeal is dismissed. No Order as to costs.