Judgement ORDER:-This is an application under Article 227 of the Constitution read with Section 115 of the Code of Civil Procedure, hereinafter to be referred to as "the Code". The applicant invokes the power of the Court to quash an order dated 20-11-1974 passed by Shri D. Saikia, Sadar Munsiff, Gauhati in Title Suit No. 151 of 1969 whereby he directed that the execution of the decree in T.S. No. 46 of 1964 be stayed pending final disposal of the Title Suit No. 151 of 1969 in exercise of his power under Order 21, Rule 29 of the Code. 2. The requisite facts are that the present petitioner as Plaintiff filed a suit for ejectment against the predecessor of the opposite parties, hereinafter to be referred to as "the predecessor. In the said suit, the predecessor entered his appearance and contested the suit by filing written statement whereupon issues were also framed. Thereafter, "the predecessor" defaulted in appearance in Court and in due course an ex parte decree was passed against the predecessor and thereafter, the predecessor tried unsuccess fully to revive the ex parte decree. Then the present petitioner put the decree into execution against "the predecessor" and subsequently on the death of "the predecessor" the opposite parties were impleaded as parties in the said Execution proceedings who contested the, execution proceeding but were unsuccessful. The present Title Suit No.151 of 1969 was filed by "the predecessor" and it is submitted at the bar that on 23-2-1970 the present Opposite parties were substituted in place of the original judgment-debtor, namely, "the predecessor". The cause title of the present suit indicates that it is a suit for declaration that the decree obtained by file present petitioner in T. S. No. 46 of 1964 was a nullity as it was obtained by practising fraud on the Court. It may be stated here that on perusal of the plaint itself I did not find any material whatsoever to show that any particulars of fraud in any form whatsoever were pleaded therein. On perusal of the plaint I find that in fact no allegation has been made out in the body of the plaint nor any allegations have been made therein so that I may treat the suit to be a suit for declaration that the decree may be declared null and void on the grounds of either fraud or collusion. On perusal of the plaint I find that in fact no allegation has been made out in the body of the plaint nor any allegations have been made therein so that I may treat the suit to be a suit for declaration that the decree may be declared null and void on the grounds of either fraud or collusion. In fact no allegation of fraud is there excepting a vague and general allegation that the present petitioner has obtained the decree fraudulently. In my opinion, in a suit of this nature it is the duty of plaintiff to specify the particulars of fraud and collusion under O. 6 Rule 4 of the Code. Thereafter, in the present suit the present opposite parties filed an application under order 39 of the code with a prayer to injunct the present petitioner from proceeding with the execution case being Title Execution Case No. 25 of 1969. The learned Sadar Munsiff, Gauhati rejected the said application and that too rightly and thereafter an appeal was preferred by the petitioner against the said order but the same was also dismissed. 3. Thereafter, an application was made by the opposite parties purported to be an application under Order 21, Rule 29 of the Code praying for stay of the said Execution case No. 25 of 1969. The learned Munsiff allowed the prayer by the impugned order and hence this application. 4. I have heard the learned counsel of the parties and perused the records. The sole ground on which the learned Sadar Munsiff has exercised his jurisdiction under the said order is that a suit has been filed by the plaintiffs praying for a declaration that the decree was obtained by the petitioner fraudulently or collusively and according to him this gives him jurisdiction to stay proceedings in a regularly constituted Court of law without caring to note that the question of issuing an order to a party restraining him from proceeding with any other suit or proceedings in a regularly constituted Court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice. As I have already stated there was no averment made, either expressly or by implication, in the plaint making any specific case of fraud in obtaining the previous decree and as such the basis of exercise of powers under Order 21 of the code by the trial Court was absent or non-existent. The learned Sadar Munsiff did refer to in his order about the previous application under order 39 of the Code made by the opposite parties and about its rejection. But did not consider at all the impact thereof. The learned Munsiff did not consider the relevant factors which go to the root of the exercise of power under Order 21, Rule 29 of the Code. He did not consider the effect of a lawfully, obtained subsisting decree. He has not as well considered that only in exceptional cases the powers under Order 21, Rule 29 of the Code should be exercised and that too when the interest of Justice required. In the present case the foundation of the exercise of the powers by the Trial Court is absent. That is to say, this is not a suit alleging fraud or collusion to set aside the original decree or praying for a declaration that the decree is a nullity. Under the circumstances the Court had no jurisdiction to stay the proceedings in Title Execution Case No. 25 of 1969. The question of multiplicity of litigation therefore does not arise at all. Under the above circumstances the question of infructuous result of the suit also cannot arise. One is only to look at the plaint and reject the contention in view of the pleadings and the prayer made in the plaint. 5. Under these circumstances, it must be held that the trial Court has acted in the exercise of its jurisdiction illegally and with material illegality in exercising power under Order 21, Rule 29 of the Code. 6. Therefore, I set aside the impugned order dated 20-11-1974 in exercise of power under Section 115 of the Code. In view of the submissions made at the bar that the opposite parties are poor "Washermen I award no cost against them. Parties are to bear their own cost. Application allowed. 6. Therefore, I set aside the impugned order dated 20-11-1974 in exercise of power under Section 115 of the Code. In view of the submissions made at the bar that the opposite parties are poor "Washermen I award no cost against them. Parties are to bear their own cost. Application allowed. AIR 1977 GAUHATI 27 "B. L. Tatar v. Ahmed Khan" GAUHATI HIGH COURT Coram : 1 B. N. SARMA J. ( Single Bench ) Bhanuwar Lal Tatar, Appellant v. Ahmed Khan and another, Respondents. First Appeal No 47 of 1968, D/- 19 -2 -1976*. (A) Civil P.C. (5 of 1908), S.96 and O.1, R.10(3) - APPEAL - CIVIL PROCEDURE - PROMISSORY NOTE - POWER OF ATTORNEY - PLEA - Suit on a promissory note by plaintiff No. 2 for and on behalf of himself and plaintiff No. 1 describing himself as attorney of plaintiff No. 1 - Maintainability - New plea of power of attorney in Appeal - Legality. Where plaintiff No. 1 himself has come and deposed that he gave necessary power to plaintiff No. 2 to file the suit on his behalf, there is no scope to contend that the plaintiff No. 2 filed the stilt without the consent of plaintiff No. 1. In such case a power of attorney is not indispensable. When the plea for failure to producing any power of attorney executed by plaintiff No. 1 in favour of plaintiff No. 2 to enable the latter to file suit on behalf of plaintiff No. 1 was not taken by the defendant appellant in his written statement and no issue was struck on the point he is not legally entitled to take such a plea at the time of hearing appeal for the first time. (Paras 12, 13) (B) Assam Money Lenders Act (4 of 1934), S.6, S.11, S.7D (as amended by Act 18 of 1969) - MONEY LENDERS - LOAN - Suit for recovery of loan advanced by a money lender - Failure to maintain accounts is no bar for institution of suit. S.6 of the Act simply provides for maintenance of accounts by a money lender and supply of statement of such account to the borrower. If any money lender fails to comply with the provisions of S.6 he is liable to penalty as provided in S.11 of the Act, but there is no bar for institution of any suit. S.6 of the Act simply provides for maintenance of accounts by a money lender and supply of statement of such account to the borrower. If any money lender fails to comply with the provisions of S.6 he is liable to penalty as provided in S.11 of the Act, but there is no bar for institution of any suit. The position however is different after enactment of a new S.7-D which prohibits institution of suit by money lenders not holding a valid registration. This provision could not have relevance having come into force after the institution of the suit in question. (Para 14) (C) Evidence Act (1 of 1872), S.67, S.47 - DOCUMENTS - EXECUTION - PROMISSORY NOTE - WITNESS - Execution of promissory note - Proof - Witness ignorant of English language deposing that he has seen defendant signing the note written in English - Competency to prove. S.67 of the Act, provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting. S.47 lays down the mode of proving such signature or handwriting. However, these sections deal only with the admissibility of a variety of opinion evidence and made of proof and not with the value of such evidence. The value of evidence is to be judged from attending facts and circumstances. The fact that a particular person has written a particular writing can be proved by the direct evidence of those persons who have seen him making the writing on the particular document irrespective of whether or not they can read what was written. AIR 1963 Raj 84 , AIR 1934 All 990 Followed; AIR 1943 PC 83, AIR 1925 Cal 452, AIR 1921 Cal 71, Rel. on; AIR 1957 All 119 , Distinguished. (Paras 17, 27) Cases Referred : Chronological Paras AIR 1963 Raj 84 : 1962 Raj LW 687 19 AIR 1957 All 119 25 AIR 1943 PC 83 : ILR (1943) Kar PC 69 23 AIR 1934 All 990 : 4 All WR 676 20 AIR 1925 Cal 452 : 82 Ind Cas 974 24 AIR 1921 Cal 71 : 62 Ind Cas 647 24 D.K. Sen, for Appellant; D.K. Sarma, for Respondents. * From decision or B. R. Das Dist. J Nowgong, in Money Suit No. 4 of 1968 (4 of 1966), D/- 31-5-1968. Judgement JUDGMENT:- This is an appeal against the decision of the learned District Judge, Nowgong, dated 31-5-1968 passed in Money Suit No. 4 of 1968 by which he decreed the plaintiffs suit on a promissory note for Rs 5,500/-. 2. The plaintiffs are Afgan Nationals residing in Nowgong town and doing Money lending business. Their case was that the defendant Bhanwarilal Tatar borrowed Rs. 5000/- from them on 9-3-1965 executing a promissory note in their favour, stipulating to repay the same on demand with interest at the rate of 6 pies per rupee, per month. As the defendant did not pay any money in spite of demand they filed the suit for a decree of Rs. 5,500/- including interest at the rate of Rs. 10/- per hundred, per year. 3. It may be mentioned here that the plaintiff No. 2 Phata Khan instituted the suit for and on behalf of himself and plaintiff No. 1 Ahmed Khan describing himself as an Attorney of plaintiff No. 1. 4. The defendant filed a written statement contesting the plaintiffs claim. He alleged that there is no cause of action for the suit and that the suit is not maintainable under the. Assam Money Lenders Act. The defendant denied that he had executed any promissory note in favour of the plaintiffs or that he had borrowed any money from them. According to him the alleged promissory note is a forged one. 5. Upon the pleadings the following issues were framed: (i) Whether the suit is maintainable under the Assam Money Lenders Act : (ii) Whether the alleged hand-note was executed by Bhanwarilal Tatar, as alleged in the plaint? (iii) Whether the present defendant is in any way liable? (iv) To what relief, if any, is the plaintiff entitled? 6. The plaintiffs examine only one witness, namely, the plaintiff No. 1 Ahmed Khan and the defendant also examined only himself. 7. On a consideration of their evidence the learned District judge answered all the issues in favour of the plaintiffs and accordingly he decreed the suit. Hence the defendant has preferred this appeal. 8. Mr. 6. The plaintiffs examine only one witness, namely, the plaintiff No. 1 Ahmed Khan and the defendant also examined only himself. 7. On a consideration of their evidence the learned District judge answered all the issues in favour of the plaintiffs and accordingly he decreed the suit. Hence the defendant has preferred this appeal. 8. Mr. D. K. Sen, the learned counsel for the appellant challenged the decree of the learned District judge on three grounds which are as below: (i) that the plaintiff No. 2 had no legal authority to institute the suit for and on behalf of plaintiff No. 1 and as such the learned District Judge should have held that the suit it not maintainable under Rule 10 (3) of Order 1 of the C. P. C. (ii) that the learned District judge erred in law in holding that the suit is not barred under Section 6 of the Assam Money Lenders Act. (iii) that the District Judge erred in law in holding that the defendant executed the handnote Ext 1 which is in English, on the basis of the evidence of P. W. 1 who is ignorant of the English language. 9. Mr. J. N. Sarma, the learned counsel appearing for the respondents resisted all the three contentions of the appellant. 10. I now propose to examine the merits of the above contentions of the appellant in the light of the arguments advanced before me by the learned counsel for the respective parties. 11. So far as the first contention is concerned Mr. Sen submitted that the plaintiff failed to produce any power of attorney executed by plaintiff No. 1 in favour of plaintiff No. 2 to enable the latter to file the suit on behalf of the plaintiff No. 1. He further submitted that one of the joint promissees alone is not competent to file the suit. That being the position, according to him, the suit should have been dismissed as not maintainable. 12. The appellant did not take this plea in his written statement and consequently no issue was struck on the point. The appellant is, therefore, not legally entitled to take such a plea at the time of hearing, for the first time. Be that as it may, the plaintiff No.2 stated in the plaint that he was the constituted attorney of plaintiff No. 1. The appellant is, therefore, not legally entitled to take such a plea at the time of hearing, for the first time. Be that as it may, the plaintiff No.2 stated in the plaint that he was the constituted attorney of plaintiff No. 1. The plaintiff No. 1 Ahmed Khan himself deposed in the suit and said that, by a power of Attorney, he conferred necessary powers on the plaintiff No. 2. No doubt, this power of attorney has not been produced in Court. When no such plea was taken by the defendant appellant in his written statement and there was no issue on the point, the plaintiffs were not supposed to come prepared to meet such a challenge at the time of hearing. 13. Even if no power of attorney was executed by the plaintiff No. 1 in favour of plaintiff No. 2, that would not go to make the suit not maintainable. Sub-rule (3) of. Rule 10 of Order 1 of the C. P. C. simply provides that no person shall be, added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent. The learned counsel for the appellant could not produce any law before me to show that in such a case a power of attorney is indispensable. When the plaintiff No. 1 himself has come and deposed that he gave necessary power to plaintiff No. 2 to file the suit on his behalf, there is no scope to contend that the plaintiff No. 2 filed the suit without the consent of plaintiff No. 1. 14. The second contention of the appellant also has got no force at all. Section 6 of the Assam Money Lenders Act simply provides for maintenance of accounts by a Money Lender and supply of statement of such account to the borrower. If any money lender fails to comply with the provisions of Section 6 he is liable to penalty, as provided in Section 11 of the Act. There is no bar for institution of any suit in case any money lender fails to maintain such accounts. If any money lender fails to comply with the provisions of Section 6 he is liable to penalty, as provided in Section 11 of the Act. There is no bar for institution of any suit in case any money lender fails to maintain such accounts. It was only in 1969, by amendment of the Act (vide Assam Act XVIII of 1969) the Legislature enacted a new section, namely, Section 7-D which provides that no suit for the recovery of a loan advanced by a money lender shall proceed in a Civil Court until the Court is satisfied that he holds a valid registration certificate or that he is not required to have a registration certificate by reason of the fact that he does not carry on the business of money lending. Such provision was not there in 1968 when the suit was instituted. Be that as it may, it is not the case of the appellant that the suit is bad for want of registration. 15. The next and the most important point which arises for consideration is whether the execution of the promissory note has been proved by the plaintiffs. 16. Mr. D.K Sen, the learned counsel for the appellant submits that though P. W. 1 Ahmed Khan (plaintiff No. 1) in his evidence stated that the defendant executed the promissory note Ext. 1 and put his signature Ext.1 (1) in his presence, he admitted in cross-examination that he does not know how to write English and that he would not be able to read all the contents of the document Ext. 1. Thus it is clear, according to Mr. Sen that P. W 1 is ignorant of the English language and so he is incompetent to prove the promissory note Ext. 1 which is written and signed in English. 17. Section 67 of the Indian Evidence Act provides that it a document is alleged to be signed or to have been written wholly or in part by any person, the signature or handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting. Section 47 of the Evidence Act lays down the made of proving such signature or handwriting. Section 47 of the Evidence Act lays down the made of proving such signature or handwriting. It provides that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed, that it was or was not written or signed by that person, is a relevant fact. The explanation to this section clarifies as to who can be said to be acquainted with the handwriting or signature of another person. According to this explanation a person may be acquainted with the handwriting of a person in three ways: (i) when he has seen a person writing; (ii) when he has received documents purporting to be written by the person in answer to documents written by himself; (iii) when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him. 18. It is seen from the provisions of Section 47 that it a person has seen another person signing or writing a document he can be said to be acquainted with his handwriting and so he is competent to prove that it is in the handwriting and/or signature of that person. There is nothing in the section to indicate that to be acquainted with the handwriting or signature of a person, the person in whose presence the signature or writing was made must be able to read such signature or writing. 19. The question as to whether a person ignorant of the language in which a document is written can prove the same to be in the handwriting or signature of a particular person, it he saw such person writing or signing the document, came up for consideration before the Rajasthan High Court in Bheek Chand v. Parbhuji, AIR 1963 Raj 84 , where it was held as below:- "Section 67 of the Evidence Act does not lay down any particular kind of proof for proving that a particular writing or signature is in the hand of a particular person. The fact that a particular person has written a particular writing can be proved by the direct evidence of those persons who have seen him making the writing on the particular document irrespective of whether or not they can read what was written. A document can be executed not only by affixing ones signature, but also by making a mark on it. When a document bearing a thumb mark of a person is proved it is not necessary that the person proving the affixation of the thumb mark should be able to identify the thumb mark. All that is required is that he should be able to identify the document on which he states that the thumb mark was affixed." 20. A similar view was taken in Ram Chandra v. Jaithmal, AIR 1934 All 990, 1 respectfully agree with the view taken in these decisions. 21. The question, therefore, is whether P. W. 1 can be said to be in a position to identify the document Ext. 1., to be able to prove the same to be in the handwriting and/or signature of the defendant. 22. It is the evidence of P W. 1 that the defendant borrowed money from him and plaintiff No. 2 by executing the promissory note Ext. 1 in his presence. He also stated that defendant put the signature Ext. 1 (1) in the said document in his presence. Evidently this document was in their possession since execution and it was filed in the court from their possession. There can, therefore, be no reason as to why P. W. 1 would not be able to identify the document Ext. 1 and to say that it was written and signed in his presence by the defendant. The position however might have been otherwise it the document, after execution, remained, in possession of some other person. 23. Then again it may be mentioned here that the promissory note Ext. 1 was marked as Ext. without any objection from the defendant. As observed by the Privy Council in Gopal Das v. Thakurji AIR 1943 P. C. 83: "Where the objection to be taken is not that the document is in itself inadmissible but that the made of proof put forward is irregular and insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the made of proof." 24. A similar view was taken by the Calcutta High Court in Rajeswari Dasi v. Pulin Behary Mittra, 62 Ind Cas 647 = (AIR 1921 Cal 71) and Abdul Samad v. Gunendra Krishna Roy, AIR 1925 Cal 452. It was held in the latter case that when rent receipts were admitted in evidence without objection in the Court of the first instance, no objection can be taken afterwards that they were not properly proved. 25. Mr D. K. Sen, the learned counsel for the appellant relied on the decision in Bhagawan Din. v. Gauri Shankar, AIR 1957 All 119 where it was held: "Where in a suit on the basis of a pronote the defendant denies the execution of the pronote the onus of proving that the document had been duly executed by the defendant evidently lies upon the plaintiff and the plaintiff ought to lead satisfactory evidence to prove that the signatures were made by the defendant." 26. This was also a suit on a pronote where no other evidence was led except that of the plaintiff and the defendant. The conclusion arrived at by the learned judge that the defendant executed the pronote was based entirely on his comparison of the disputed signatures with some admitted signatures of the defendant. There is nothing in the judgment to show what was the nature of the evidence given by the plaintiff himself in that case whether or not he said that the defendant executed the pronote in his presence. The decision, therefore, has got no bearing on the present case. 27. In the instant case the evidence of P. W. 1 satisfies, in my opinion, the technical requirements of proof, as laid down in Sections 47 and 67 of the Evidence Act. However, these sections deal only with the admissibility of a variety of opinion evidence and made of proof and not with the value of such evidence. The value of the evidence is to be judged from the attending facts and circumstances. 28. In his evidence the defendant stated that he does not know how to read and write English and that he did not execute the pronote Ext.1 which is written and signed in English. The value of the evidence is to be judged from the attending facts and circumstances. 28. In his evidence the defendant stated that he does not know how to read and write English and that he did not execute the pronote Ext.1 which is written and signed in English. In his written statement he did not state that he is ignorant of the English language. In cross-examination he admitted that he did not care to see the pronote before filing the written statement. This is a circumstance which goes against him. 29. In a civil suit the plaintiff is not required to prove his case beyond reasonable doubt, as in a criminal case. A suit can be decreed merely on preponderance of probability. As already pointed out, the plaintiff has made out a prima facie case by his evidence that the defendant executed the pronote in his presence. The defendant however did not adduce any evidence to rebut the same. He stated in his evidence that they maintain accounts of their business and that when money is taken from somebody for their business it is entered in their accounts. He further stated that even when he borrows money for his personal use, it is noted in their business accounts. If that is so, the production of those accounts by him would have thrown sufficient light on the disputed transaction. The learned judge has drawn adverse presumption against the defendant for non-production of such accounts and, I think rightly. 30. The defendant stated in his evidence that he is not known to the plaintiffs at all. The learned District Judge has observed that it is not believable that the plaintiff who is a Kabuli would come to file a false suit against the defendant who is not known to him and evidently who bears no grudge against him, by fabricating a promissory note. Having regard to the common course of human conduct such a presumption cannot be said to be unreasonable. 31. Considering all the facts and circumstances of the case and upon the evidence on record, as discussed above, I find that the learned District Judge was perfectly justified in decreeing the plaintiffs suit. The decree appealed against is accordingly affirmed and the appeal is dismissed with costs. Appeal dismissed.