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1966 DIGILAW 23 (MP)

JAGESHWAR PRASAD SHARMA v. LAPPA GORKHA

1966-02-17

P.V.DIXIT

body1966
ORDER P. V. Dixit, C. J. This revision petition is directed against a decision of the Court of Small Causes, Chhindwara, giving to the plaintiff-applicant a decree for Rs. 20 only against the non-applicant. It was alleged by the plaintiff that on 27th September 1963 the defendant-non-applicant borrowed from him Rs. 300 agreeing to repay the sum together with interest at the rate of 12 per cent per annum and that the receipt of this amount was acknowledged by the defendant by passing a receipt in his favour on that date and further that the defendant had failed to repay the amount despite the service of a notice. The plaintiff, therefore, claimed to recover Rs. 300 together with Rs. 12 as interest thereon. The defendant's plea was that on 27th September 1963 he asked the plaintiff to lend him Rs. 300 but that the plaintiff advanced him only Rs. 280 and asked him to execute the receipt that he did for Rs. 300. He further pleaded that he had repaid Rs. 280 to the plaintiff by paying Rs. 150, Rs. 20, Rs. 80 and Rs. 30 respectively on 23rd November 1963, 8th December 1963, 18th January 1964 and 29th February 1964. The defendant relied on four receipts (Exhs. D-2, D-3, D-4 and D-5) said to have been passed by the plaintiff in his favour on the dates mentioned above. In his evidence the plaintiff-applicant to whom the receipts were put said that they were fabricated and did not bear his signatures. The defendant, however, deposed that the receipts were passed by the plaintiff after receiving the amounts mentioned therein. The learned trial Judge preferred the defendant's statement for the reason that the plaintiff did not give any reply to the defendant's averment in the written statement that he had repaid Rs. 280 and say that the receipts Exhs. D-2 to D-5 were not passed by him and were forged. Thus accepting the defendant's statement that he had repaid Rs. 280 to the petitioner, the trial Court gave to the plaintiff a decree for Rs. 20 only. The petitioner has now filed this revision petition for his claim being decreed in full. Having heard learned counsel for the parties I have formed the opinion that this case must be remitted to the lower Court for further trial. 280 to the petitioner, the trial Court gave to the plaintiff a decree for Rs. 20 only. The petitioner has now filed this revision petition for his claim being decreed in full. Having heard learned counsel for the parties I have formed the opinion that this case must be remitted to the lower Court for further trial. The crucial issue in this case was whether the four receipts tendered in evidence by the defendant were forged or genuine. If they are genuine, then it would be obvious that the plaintiff-applicant has told a falsehood in saying that the receipts were not passed by him and do not bear his signature. If the receipts are held to be genuine, then the defendant's version has to be accepted. If, on the other hand, the receipts are held to be fabricated or forged, then it is plain that the defendant has committed forgery or at least has used the four receipts knowing them to be forged documents. The question whether the receipts are genuine or forged is not one which can be decided in the present case on the bare statement of the plaintiff that they are forged or of the defendant that they are genuine. The burden of establishing the plea of repayment and the passing of the receipts by the plaintiff was undoubtedly on the defendant. He should have discharged this burden by summoning a handwriting expert to prove that the receipts bore the plaintiff's signatures. But if he failed to do so, then in the present case the lower Court itself should have under Order 16, rule 14 of the Code of Civil Procedure, of its own accord, summoned a handwriting expert to give evidence with regard to the signatures appearing on the receipts and their genuineness or otherwise. Such a course was absolutely essential in the present case as it has now become very common for parties to deny too readily their signatures on documents tendered in evidence by the opposite party. Such a course was absolutely essential in the present case as it has now become very common for parties to deny too readily their signatures on documents tendered in evidence by the opposite party. For these reasons, the decision of the learned Judge of the Court of Small Causes is set aside and the case is remitted to that Court for further trial and disposal according to law with the direction that the Court shall have the four receipts tendered in evidence by the defendant examined by the Government Examiner of questioned Documents or any other handwriting expert of repute; and, after recording the evidence of the expert and giving to the parties an opportunity to cross examine him, determine the question whether the four receipts do or do not bear the plaintiff-applicant's signatures. If, in the light of its finding with regard to the genuineness or otherwise of the receipts, it becomes obvious to the lower Court that the plaintiff-applicant has given false evidence or that the defendant-non-applicant has committed forgery or used a forged document, then the lower Court should not hesitate to make a proper direction with regard to the prosecution of the party concerned. The burden of proving the receipts being on the defendant-non-applicant, he shall, in the first instance, bear the cost of getting the opinion of the expert and of summoning him in Court for giving evidence. It is unnecessary to add that if the defendant succeeds in the suit, then this cost will have to be saddled on the petitioner. Parties shall appear on 28th February 1966 in the Court of Small Causes, Chhindwara, to take further direction. The record of the case be transmitted forthwith to the Court of Small Causes, Chhindwara. In the circumstances of the case, I leave the parties to bear their own costs of this revision.