Rajasthan High Court - Jodhpur

Ramji Lal Leela vs Moti Ram on 4 November, 2025

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Second Appeal No. 355/1998

Ramji Lal Leela S/o Shri Bajrang Lal Leela, residing behind the
Punjab National Bank, Shastri Nagar, Jodhpur.
                                                      ----Defendant-Appellant
                                    Versus
Shri Moti Ram S/o Shri Girdhari Lal, resident of First 'B' Road,
Opposite J.K. Nursing Home, Sardarpura, Jodhpur.
                                                       ----Plaintiff-Respondent


For Appellant(s)          :     Mr. C.S. Kotwani with
                                Mr. Avdhesh Parashar
For Respondent(s)         :     None present



               HON'BLE MR. JUSTICE BIPIN GUPTA

Judgment

Reserved on :: 08/10/2025 Pronounced on :: 04/11/2025

1. The present second appeal has arisen from the

judgment and decree dated 08.09.1998 passed by learned

Additional District and Sessions Judge No.2, Jodhpur in Civil

Appeal (Decree) No.22/1998, whereby, the appeal preferred

by the present appellant was rejected and the decree dated

20.03.1998 passed by learned Additional Civil Judge (Junior

Division) and Judicial Magistrate No.5, Jodhpur for recovery

of amount of Rs.22,100/- along with interest @18% was

confirmed.

2. The plaintiff-respondent herein had filed a suit for

recovery of Rs.22,100/- contending therein that the plaintiff

had agreed to purchase a plot from Jagdamba Graha Nirman

Sahkari Samiti Ltd., Jodhpur (hereinafter referred to as the

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'Sahkari Samiti') for consideration of Rs.1,30,000/- on

19.08.1983. Part amounts were deposited by him with the

Samiti and the receipts of the same were given. In the year

1991, defendant was the President of the Sahkari Samiti and

demanded Rs.15,000/- for the purpose of executing the

registration deed of the plot. The defendant received

Rs.15,000/- from the plaintiff and issued a 'Kucchi' receipt

and assured that printed receipt of the Sahkari Samiti will be

given to him.

3. Subsequently, when the printed receipt was not given to

the plaintiff, he inquired regarding the same from the Sahkari

Samiti wherein he was informed that no such amount has

been deposited in his name. On this, the plaintiff demanded

the money from the defendant who assured that he will

return back the same. However, he did not return back the

amount and therefore, the plaintiff issued a notice on

01.03.1994 to the defendant of which no reply was received

and thereafter, the plaintiff filed a suit for recovery of the

amount along with interest @18% per annum. The original

amount was Rs.15,000/- and the interest up to the date of

filing of the suit was Rs.7,100/-. Therefore, a suit was filed

for recovery of Rs.22,100/- with a claim of future interest @

18% per annum.

4. The defendant in his written statement averred that no

such amount was received by him from the plaintiff for

depositing with the Sahakari Samiti. Further, notice was also

not received by him. Since no amount was given by the

plaintiff to the defendant therefore there was no question of

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depositing such amount with the Sahkari Samiti. He therefore

asserted that no cause of action has arisen and the suit had

been filed on false and frivolous grounds. He prayed that the

same may be dismissed.

5. On the basis of the pleadings of the parties following

issues were framed by the learned Trial Court :

"1- vk;k oknh us txnEck x`g fuekZ.k lgdkjh lfefr fyfeVsM tks/kiqj ls ,d IykV 1]30]000@& : esa [kjhnuk r; dj 75]000@& : tek djk;sA 2+- vk;k izfroknh us IykV dh dher ,o jftLVªh isVs oknh us 15]000@& : dh ekax dh bl ij fnukad 15-3-91 dks oknh us 15]000@& : izfroknh dks vnk fd;s ftudh dPph jlhn izfroknh us oknh dks nhsA 3- vk;k 15-3-91 dks oknh }kjk vnk dh xbZ jkf"k 15]000@& : izfroknh us lkslk;Vh esa tek ugha djk;hA 4- vk;k oknh 15000@& : izfroknh ls izkIr djus dk vf/kdkjh gSA 5- vk;k oknh mDr jkf"k ij 18 % okf'kZd dh nj ls C;kt ds 7100@& : izkIr djus dk vf/kdkjh gSA 6- vk;k izfroknh gtkZuk ds 5]000@& : izkIr djus dk vf/kdkjh gSA 7- vuqrks'kA"

6. The learned Trial Court decided issue no.1 in favour of

the plaintiff. Issue no.2 was decided in favour of the plaintiff.

Issue no.3 was decided in favour of the plaintiff. Issue no.4

was decided in favour of the plaintiff. Issue No.5 was decided

in favour of plaintiff. Issue no.6 was decided against the

defendant and on the basis of the finding of issues, the suit of

plaintiff was decreed vide judgment dated 20.03.1998.

7. The defendant being aggrieved of the same preferred an

appeal before the First Appellate Court. The Appellate Court

dismissed the appeal vide judgment dated 08.09.1998 and

confirmed the judgment and decree dated 20.03.1998.

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8. Thereafter, the defendant preferred the present second

appeal which was admitted on 19.11.1998 and the following

substantial questions of law were framed :

"(1) WHETHER the judgment of the First Appellate Court was liable to be set aside on the ground that it did not frame points for determination as per provisions under Order 41 Rule 31 CPC? (2) WHETHER the Trial Court committed illegality by comparing the hand writing on the disputed documents under the provisions of Section 73 of the Indian Evidence Act when the aid of an expert was not provided to the Court?"

9. Learned counsel for the appellant submitted that since

the First Appellate Court did not frame any point for

determination nor decided the appeal by giving specific

finding on each and every issue, therefore, the judgment

passed by the First Appellate Court may be set aside for non-

compliance of Order 41 Rule 31 CPC.

10. He further submitted that both the courts below had

committed illegality in applying the provision under Section

73 of the Indian Evidence Act, 1872 (hereinafter referred to

as 'Act of 1872') by comparing the signatures itself without

taking any aid of an expert and thus, the learned Courts

below have committed error of law while holding the

signatures on the receipt Exhibit-1A to be that of the

defendant-appellant.

11. Learned counsel for the appellant further submitted that

the disputed signatures on the receipts have not been

proved. Moreover, the plaintiff have not got them proved

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through an expert and since the defendant-appellant had

denied the signatures, it was incumbent upon the plaintiff to

get the signatures proved. Thus, without the proof of the

signatures on the alleged receipt, the decision by both the

lower courts to the effect that the signatures were of the

defendant, without the aid of an expert, was bad in the eyes

of law and the same may be set aside.

12. Learned counsel for the appellant relied upon a

judgment passed by a Co-ordinate Bench of this Court at

Jaipur in the case of Darogi & Ors. Vs. Chetram & Ors. ;

S.B. Civil Writ Petition No.17904/2018 (decided on

19.08.2025) to buttress his arguments.

13. None appeared on behalf of the respondent to oppose

the submissions made at the Bar and hence, the appeal was

heard ex-parte.

14. The first substantial question of law which has been

framed by this Court is to the effect that whether the First

Appellate Court had committed error in not following the

provisions laid down under Order 41 Rule 31 CPC and

therefore liable to be set aside.

15. This Court finds that the learned First Appellate Court

had considered each and every argument of the learned

counsel for the appellant which was put forthwith during the

course of hearing of the First Appeal and has also considered

the evidence before the Court. The counsel for the appellant

before the First Appellate Court, as recorded in para no.3 of

the judgment, had argued that the plaintiff had no sufficient

material available to prove issue no.1. The learned Trial Court

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had committed illegality in deciding issue no.1 in favour of

the plaintiff on the basis of "Kucchi" receipt and which has not

been proved with the aid of expert which was essential as the

defendant had denied the signatures.

16. The learned counsel for the appellant before the First

Appellate Court had argued that the comparison of signature

of the defendant on receipt with that on the reply and the

vakalatnama by the learned Trial Court was beyond the

powers of the Court and it was also argued by the counsel for

appellant in the First Appellate Court that the signatures on

exhibit No.1A were not matching and thus contended that if

the plaintiff wanted to get them proved, he ought to have

produced an expert evidence regarding the same.

17. Considering all the arguments raised by learned counsel

for the appellant, as recorded in para no.3 of the First

Appellate Court order, this Court is of the firm opinion that

the First Appellate Court had considered each and every

argument as raised before the Appellate Court in para no.5 of

its judgment and has appreciated the entire evidence on

record and after considering the entire evidence, relevant

documents and arguments advanced by learned counsel for

the defendant-appellant, the First Appellate Court had

recorded an independent finding and had recorded reasons to

repel the arguments raised by learned counsel for the

defendant-appellant.

18. The First Appellate Court has given a categorical

decision on account of the fact that there was no specific

denial by the defendant as to receipt of the amount in dispute

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even in his individual capacity and merely denied that the

amount had not been received by him in the capacity of the

President of the Sahkari Samiti. In absence of the specific

denial, the First Appellate Court had recorded the finding and

had upheld the finding on issue no.1.

19. The First Appellate Court had observed that there was

no specific denial in the reply nor there was any specific

denial of the signatures on the "Kucchi" receipt by the

defendant. Neither cross-examination was conducted by the

defendant from P.W.1 and P.W.2 in regard to signature, nor

any suggestion was given by the defendant that on Exhibit-1A

there was no signatures of the defendant or that the

signature are forged. In such facts and circumstances,

considering the entire material evidence available on record,

the First Appellate Court decided the appeal by upholding the

judgment of learned Trial Court. The judgment cited by

appellant of Darogi (supra) is not applicable on the present

facts and circumstances of the case.

20. So far as how the first appeal is to be decided by the

Appellate Court and how the provisions of Order 41 Rule 31

CPC are to be made applicable by the First Appellate Court is

concerned, the Hon'ble Apex Court in a judgment passed in

the case of Nafees Ahmad & Anr. Vs. Soinuddin & Ors. ;

Civil Appeal No.5213/2025 (decided on 16.04.2025) held as

under :

"4. Order 41 Rule 31 CPC read thus:

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"Rule 31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state-

      (a)    the points for determination;
      (b)    the decision thereon;
      (c)    the reasons for the decision; and
      (d)    where the decree appealed from is reversed or

varied, the relief to which the appellant is entitled, and shall at that time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

5. It appears that the High Court relying upon few decision took the view that Order 41 Rule 31 CPC is mandatory and the failure on the part of the Appellate Court to frame the points for determination as per the provisions of Order 41 Rule 31 CPC would vitiate the entire judgment and make it wholly void.

6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are in complete disagreement with the view taken by the High Court.

7. We propose to follow the dictum as laid by this Court in the case "G. Amalorpavam And Others v. R.C. Diocese of Madurai And Others" reported in (2006) 3 SCC 224, wherein this Court observed that whether in a particular case, there has been substantial compliance, with the provisions of Order 41 Rule 31 CPC should be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions, by itself, may not vitiate the judgment and make it wholly void and may be ignored if there has been a substantial compliance with it."

21. As held by the Hon'ble Apex Court in Nafees Ahmad

(supra) that merely due to non-compliance of Order 41 Rule 31

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CPC, the judgment cannot be said to be unsustainable as it is the

duty of the Court to determine the judgment on the basis of

nature of judgment delivered in each case. As observed earlier,

this Court is of the firm opinion that the judgment passed by the

learned First Appellate Court has considered each and every

aspect of the matter and argument raised by the appellant and

had dealt with the arguments as well as the evidence available on

record in detail and only thereafter had held that there was no

ground to interfere in the judgment and decree passed by the

learned Trial Court. In such nature of decision having been passed

by the First Appellate Court, it cannot be said that the same

suffers from non-compliance of Order 41 Rule 31 CPC. Therefore,

question no.1 as framed by this Court is answered in negative

and it is held that the learned First Appellate Court had not

violated the provisions of Order 41 Rule 31 CPC.

22. The argument raised by learned counsel for the appellant on

the second substantial question of law is that the learned Trial

Court had committed illegality by comparing the hand-writing on

the disputed document as per the provision of Section 73 of the

Act of 1872, without taking any aid from the expert.

23. For the purpose of deciding the said question, Section 73 of

the Act of 1872 is reproduced as under :-

"73. Comparison of signature, writing or seal with others admitted or proved.-

(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it is alleged 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 by the Court or under its orders with the one which is to be proved, although that signature,

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writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of comparison of the words or figures so written with any words or figures alleged to have been written by such person.

(3) This section applies also, with any necessary modifications, to finger impressions, palm impressions, footprints and type-writing. (4) Without prejudice to the provisions of any other law for the time being in force, nothing in this section shall apply to a criminal Court before it has taken cognizance of an offence."

24. A bare perusal of the Section reveals that it gives power to

the Court to compare the handwriting and signature while giving

its finding. The learned Trial Court as well as the First Appellate

Court have not only recorded the finding on account of comparison

of signatures by the courts below but have also seen the other

circumstances and evidence available on record and had

thereafter reached to a conclusion. The other circumstances

included the factum that there was no specific denial of the

defendant in the reply with regard to the signatures on the alleged

receipt and further there had been no cross-examination from the

plaintiff witnesses with regard to the signature of the defendant.

25. Further, the First Appellate Court had found that the plaintiff

had proved his case whereas the defendant had failed to prove in

any manner that the signatures were not of the defendant. If the

defendant was so sure that the signature were not his or were not

in his hand-writing, it was for him to have requested the Court to

send the same for expert opinion i.e. to determine whether the

hand-writing and signatures on the receipt were of the defendant.

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The defendant had not filed any application before the learned

Trial Court to seek an expert opinion and in such circumstances it

seems that the defendant had not sought any expert evidence on

the exhibited documents and the signatures proved by the

plaintiff. Hence, no illegality can be said to have been committed

by both the Courts below and it was well within jurisdiction to

exercise the power available under Section 73 of the Act of 1872.

Moreover, there is no requirement which states that before

exercising the power under Section 73 of the Act of 1872, the

expert opinion is required to be taken by the Court.

26. The aforesaid opinion of this Court is supported by the

judgment rendered by a three-Judge Bench of Hon'ble Apex Court

in the case of A. Neelalohithadasan Nadar vs. George

Mascrene and Ors.; (1994) 3 SCR 437, wherein it was

reiterated that the Court may play the role of an expert and can

apply its own observation. Further, even in cases where an opinion

is rendered by the experts, the opinion is not final and can be

subjected to the scrutiny of the Court. The relevant paragraph of

the judgment is reproduced herein below:

"15. In the matter of co-relation and employment of Section 73 of the Evidence Act, the High Court took support from a decision of this Court in Fakhruddin v. The State of Madhya Pradesh AIR 1967 SC 1326, The High Court justified its step of comparison in paragraph 13 of the judgment under appeal as follows:

"Learned counsel representing the first respondent raised a contention that this Court should not take the part of an expert in handwriting to compare the signatures of witnesses to find out whether they were signatures of the same person. According to counsel, the disputed signatures

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should be sent to experts for their opinion. In the alternative it is contended that petitioner should examine persons familiar with the signature of the witnesses to establish the identity of signatures. Handwriting may be proved on admission of the writer or by the evidence of some witness in whose presence it was written. This is direct evidence. In the absence of such direct evidence, opinion of handwriting expert or of some who is familiar with the writing of the person is relevant. Thus besides direct evidence which of course is the best method of proof, the law makes two other modes also as relevant, i.e. a writing may be proved to be the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to compare the handwritings on a scientific basis. A third method is also provided by the Evidence Act in Section 73. It is comparison by the court with the writing made in the presence of the court or admitted or proved to be the writing of the person. The Court can apply its own observation to the admitted or proved writings and to compare them with the disputed one. This comparison depends on an analysis of the characteristics in the admitted or proved writings and of the same characteristics in large measure in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subjected to the scrutiny by court. The expert's opinion is not the final word. The court must see for itself whether it can safely be held that the two writings are of the same person. To this extent, court may play the role of an expert. The court can accept the disputed signature to be that of the witness when it is satisfied on its observation that it is safe to accept the same. In this view, do not think it necessary to have the admitted signature of the witness to be compared with the signature in the disputed counterfoils of the ballot paper by any expert. This court can scrutinise the characteristics of the signatures. If

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it finds that the disputed signature has the same characteristics in large measure with the admitted signature, it can safely come to the conclusion that both are of the same person."

The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression not tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing Section 73 of the Evidence Act. It was urged that the High Court should not have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an Election Petition, then the course adopted by the High Court, as suggested from the afore-extraction, is in conformity therewith. Although courts should be slow in resorting to this method, we do not find it faulted, more so when the Courts resort to exercise of such power is approved in two other cases of this Court in State (Delhi Administration) v. Pali Ram MANU/SC/0189/1978 : 1979CriLJ17 and Murari Lal v. State of Madhya Pradesh 1980CriLJ396. As a sequitur the finding recorded by the High Court on Issue No. 1 is perfectly sound."

27. In view of the aforesaid observations, question no.2 as

framed is also answered in negative and it is held that the court

can compare handwriting and signatures under Section 73 of the

Act of 1872 without the aid of expert. Since both the questions as

framed above have been answered in negative, the present

second appeal is dismissed.

28. All pending applications, if any, are disposed of.

(BIPIN GUPTA),J Anil/-

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