Calcutta High Court (Appellete Side)
Jafar Sk vs Anaruddin Sk on 8 September, 2021
1
21 08.09.2021
SA 274 of 2016
SAT 458 of 2015
I.A. No.: CAN 1 of 2015 (Old No.: CAN 9677 of 2015) (not found)
Jafar Sk.
vs.
Anaruddin Sk.
Mr. Prithu Dudhoria ... for appellant
Mr. Dudhoria, learned advocate appears on
behalf of appellant, who was defendant in the suit for
money. He submits, his client is aggrieved on the lower
appellate Court having reversed the judgment of dismissal
of suit, decreeing it. The suit was for price of goods sold
and delivered. The goods were human hair. He submits,
plaintiff relied upon credit notes allegedly issued by his
client in the name of his shop 'Rinki Stores'. His client
does not have a shop known as 'Rinki Stores' and he also
denied the signatures appearing in the credit notes
marked Exhibit 4. The lower appellate Court abdicated
its duty under section 73, Evidence Act, 1872. He relies
on judgment of Supreme Court in Murari Lal vs. State of
M.P. reported in (1980) 1 SCC 704, paragraph 12. He
submits, there is question involved in the appeal
regarding appreciation of evidence on disputed hand
writing.
We have perused the judgments. That appellant
dealt with human hair in course of his business, stood
proved by his own second witness D.W. 2. It appears from
judgment of the trial Court, original bills were duly
exhibited and marked Exhibit 4, there being no record of
objection. Documents duly tendered include proof of
contents, though may not be conclusive (see P.C
Purushothama v. S. Perumal reported in AIR 1972 SC
608 para 19). None of the parties called for hand writing
expert at trial.
No additional evidence was produced in the first
appeal. The lower appellate Court adjudicating on a civil
dispute said, inter alia, as follows:
"The Bills had been Marked Exhibits
after they were proved to have been
executed by the Defendant. Once they are
proved to have been executed by the
Defendant, whether there is 'Rinki Stores'
or not does not matter at all because the
Defendant may to avoid creditors, avoid the
name to be placed before the shop room or
avoid the name to be incorporated in the
Tax Receipts of the Panchayet. The
execution of those Bills had been proved by
the Plaintiff by saying that they were
written by the Plaintiff and the Plaintiff had
given his initial in the Bills. Now, if the
Defendant denies the same, the Onus is on
the Defendant to prove by taking the help of
Section 73 and 47 of the Evidence Act to
disprove the same to be fabricated which
the Defendant had not done because he
knew that they were genuine. Civil Courts
do not ask for proof beyond reasonable
doubt but acts upon preponderance of
probabilities. The Defendant has a shop
room is proved from the said Tax Receipts
of the Bharatpur Gram Panchayet being
BRF No. 94 dated 31.03.2004, dated
31.03.2005 and dated 31.03.2007 but that
there is no name there in those Tax
Receipts, does not signify that the
Defendant cannot issue a Bill in the name
of 'Rinki Stores' and the person who wants
to defraud his creditor will always do this
what the Defendant has done and it is also
not unnatural for a person to not name all
the things which he sells from his shop.
Therefore, writing of 'Khelna' (toys) in those
Tax Receipts does not prove that he had no
business of selling hairs. On the contrary,
the Defendant No. 2, Babul Sk., had said
that he too is involved in the business of
hair and sells hair to the Defendant."
Supreme Court in Murari Lal (supra) said,
argument that the Court should not venture to compare
writings itself, as it would thereby assume to itself the role
of an expert, is entirely without force. Section 73 of
Evidence Act expressly enables Court in that regard. In
all cases bearing such disputes, it becomes plain duty of
the Court to compare handwritings and come to its own
conclusion. Where there is no expert opinion, the Court
must discharge its plain duty with or without other
evidence. In this case, the first appellate Court discharged
its duty.
There is no substantial question of law involved
in the appeal.
SA 274 of 2016 with I.A. No.: CAN 1 of 2015 (Old
No.: CAN 9677 of 2015) (application not found), if pending,
are dismissed.
(Arindam Sinha, J.)
(Sugato Majumdar, J.)
