Ram Raj Ahir v. Hirdaya Narain Rai — 1982 DIGILAW 796 (ALL)

JUDGMENT V.K. Mehrotra, J. - This appeal is against an appellate judgment dismissing the suit of the plaintiff-appellant for recovery of some amount said to have been borrowed by the defendant, respondent in this court, from him together with interest there on. The trial court had decreed the suit. 2. The case of the appellant was that the amount had been borrowed and a promissory note (Sarkhat) was executed by respondent Hirdaya Narain in token thereof. He had affixed his signature on the document. The necessity for the suit arose when Hirdaya Narain failed to pay the amount back in spite of repeated reminders. 3. The defence taken by Hirdaya Narain was two-fold. Firstly, that he had not borrowed any amount whats over from appellant Ram Raj and, secondly, that he did not execute any-sarkhat nor appended his thumb mark upon it. 4. Apart from producing the sarkhat in court, appellant Ram Raj got the thumb mat to, upon it examined by a handwriting and finger print expert and produced him as a witness at the trial in proof of the fact that the thumb marks were rcallv those of Hipdaya Narain. He entered the witness box himself and also examined another witness. Hirdaya Narain also entered the witness-box and denied the claim of Ram Raj. He did not, however, produce any expert to contradict the evidence produced by Ram Raj. 5. The suit was tried by the Munsif, Ghazipur, who came to the conclusion, after taking into consideration the evidence led by the parties, that there was nothing to make the deposition of the expert that the thumb marks on the arkhat produced by Ram Raj were those of Hirdaya Narain was unworthy of acceptance. He also concluded that the Sarkhat as well as the evidence led by the plaintiff in the case proved it beyond doubt that the money had been borrowed from plaintiff Ram Raj by Hirdaya Narain. The learned Munsif decreed the suit for the recovery of the amount as claimed. Hirdaya Narain assailed the decree in an appeal. 6. The appeal was heard by the IIIrd Temporary Civil and Sessions Judge. Ghazipur. who allowed it and set aside the decree passed by the learned Munsif. The learned Munsif decreed the suit for the recovery of the amount as claimed. Hirdaya Narain assailed the decree in an appeal. 6. The appeal was heard by the IIIrd Temporary Civil and Sessions Judge. Ghazipur. who allowed it and set aside the decree passed by the learned Munsif. The view taken by the Civil Judge was that the evidence in regard to the amount having been borrowed by Hirdaya Narain from Ram Raj was not satisfactory and that the testimony of defendant Hirdaya Narain was more trustworthy than the evidence led by Ram Raj in support of his case. T he learned Judge also observed that the version of Hirdaya Narain that he had not affixed thumb marks on any Sarkhat was worthy of acceptance notwithstanding the fact that two thumb marks found on the sarkhat produced in the case were said to have been those of Hirdaya Narain by the expert. He gave some further reasons for not accepting the claim of Ram Raj in this respect. The Civil Judge, on the view taken by him. reversed the decree passed by the Munsif and dismissed the suit. Ram Raj then approached this Court in the present second appeal. 7. The submission on behalf of Ram Raj in this Court has been two-fokl. Firstly, that there was no justification for the Civil Judge, at least none appeared in his judgment, for the Civil Judge, at least none appeared in his judgment, for differing from the Munsif in the appreciation of evidence made by the latter by which he had accepted the case of Ram Raj and. secondly, that the unrebutted evidence of the expert that the thumb marks found on the sarkhat were of Hirdaya Narain, was, in a sense, conclusive of the fact that the sarkhat had been executed by Hirdaya Narain after borrowing money from Ram Raj. 8. The first question which necessarily has to be decided in a case like the present is whether in fact, the amount alleged to have been borrowed by the defendant was so borrowed. If a finding on this question is against the plaintiff, who stakes a claim to that effect, it is obvious that the mere fact that the signature or thumb marks of the defendant is found to be present on a document, purporting to be a sarkhat. If a finding on this question is against the plaintiff, who stakes a claim to that effect, it is obvious that the mere fact that the signature or thumb marks of the defendant is found to be present on a document, purporting to be a sarkhat. is not enough to enable the plaintiff to obtain a decree for realisation of that amount from the defendant. In Chandika v. Sukhnandan 11981 All LJ 19) : ( AIR 1981 All 312 ) I said (in para 5 of the report) that : "....Eventually, therefore, the plaintiff has failed to establish to the satisfaction of the final court of fact that the transaction of loan as evidenced' by the pronote in question actually took place. In these circumstances, in my opinion, the lower appellate court was justified in dismissing the plaintiffs suit." The present case is governed by the same dictum. 9. The trial court, as noticed earlier, accepted the case of Ram Raj that the money had been borrowed by Hirdaya Narain. The trial court gave its reasons for coming to that conclusion. The Civil Judge, however, differed from the learned Munsif on this aspect and came to a contrary conclusion. He gave his own reasons for the difference in his conclusion. The submission on behalf of appellant Ram Raj is that as an appellate court, it was not open to the Civil Judge to set aside the finding recorded by the Munsif unless he found that there were some special reasons for doing so. The precise argument is that the Munsit had the advantage of watching the dameanour of witnesses and had. therefore, a better opportunity of appreciating the oral evidence. In 'support of this submission reliance has been placed on some decisions. The first of these was rendered by a Division Bench of this Court in Aziz Ahmad v. S.K. Abdul Ghafoor reported in 1980 All L J NOC 141. therefore, a better opportunity of appreciating the oral evidence. In 'support of this submission reliance has been placed on some decisions. The first of these was rendered by a Division Bench of this Court in Aziz Ahmad v. S.K. Abdul Ghafoor reported in 1980 All L J NOC 141. In head-note (B) of the report, as extracted by the reporter, the Division Bench is said to have said that the conclusion of the trial court which has advantage of hearing the oral evidence and watching the demeanour of the witnesses in the witness box should not be lightly disturbed by the appellate court, and that w here there is conflict in oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. The head-note further shows that .the Bench followed two decisions of the Supreme Court reported in 1951 AH L J 1 : ( AIR 1951 SC 120 ) and AIR 1960 SC 115 . 10. The next decision relied upon was of brother Deoki Nandan, in Sohan Lal v. Lala Mangi Lal ( AIR 1981 All 62 ) in which relying upon the decision of the 'Supreme Court in Sarju Pershad Ramdeo Sahu v. Jwaleshwari ( AIR 1951 SC 120 ). the learned Judge observed (in para 16 of the report) that the rule laid down by the Supreme Court in that case was to the effect that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where credibility lies, the appellate court must not interfere. A similar view was expressed by the same learned Judge in Hari Nandan v. Deo Narain (1982 All L J 427). 11. A similar view was expressed by the same learned Judge in Hari Nandan v. Deo Narain (1982 All L J 427). 11. A perusal of the judgment of the Supreme Court in Sarju Pershad's case (supra) makes it clear that what was observed by the Supreme Court was that the rule was nothing more than a rule of practice. 12. The question raised by the appellant in the present case was agitated before me on earlier occasions as well and after noticing several decisions including the one in Sarju Pershad's case, I took the view that the legal position in the matter of reappraisal of evidence by the appellate court under S. 107, C. P. C., was that the findings recorded by the first appellate court should be sustainable on admissible evidence on record and that it was not necessary that the judgment of the first appellate Court should, as it were, come into close quarters with that of the trial court. It is not necessary for me to repeat the reasons for the aforesaid conclusion in two earlier decisions given by me in the cases of Chandra Shekhar v. Gur Prasad (1981 All LJ 209) and Pheroo v. Umrao ( AIR 1981 All 27 ). I2-A. From the report of the decision of the Division Bench in Aziz Ahmad's case 1980 All LJ NOC 141, it is not clear as to what were the circumstances in which the observations extracted in head-note (B) of the report were made. The observations are largely those which occur in the decision of the Supreme Court in Sarju Pershad's case. In that case, as is clear from the decision itself, the Supreme Court did not lay it down as a rule of law but placed it only in the category of a rule of practice. The two decisions by brother Deoki Nandan also reproduce the observations of the Supreme Court in Sarju Pershad's case. 13. In that case, as is clear from the decision itself, the Supreme Court did not lay it down as a rule of law but placed it only in the category of a rule of practice. The two decisions by brother Deoki Nandan also reproduce the observations of the Supreme Court in Sarju Pershad's case. 13. No decision of a binding nature has been brought to my notice which may have taken the view that where the lower appellate court has departed from the aforesaid rule of practice and has arrived at a conclusion different from the one recorded by the trial court and those conclusions are fully supported by relevant and admissible material on record, the decision can be said to construe an error of law correctable by the High Court while hearing an appeal under S. 100, C. P. C. In fact, as far back as in the year 1963, the Supreme Court laid down in V. Ramchandra Ayyar v. Ramalingam Chettiar ( AIR 1963 SC 302 ) that the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court however erroneous the said conclusions may appear to be to the High Court and further that the High Court is not justified in interfering with the finding of fact recorded by the lower appellate court merely because the judgment of the lower appellate court is not as elaborate as that of the trial judge or because some of the. reasons given by the trial judge had not been expressly reversed by the lower appellate court. 14. In Satgur Prasad v. Har Narain Das ( AIR 1932 PC 89 ) it was said by their Lordships of the Privy Council that a finding on a question of fact, if supported by admissible evidence on the record, is not liable to be reopened in a second appeal. This was re-stated repeatedly by the Supreme Court. As recently as in the year 1981, it said in K. C. Kapoor v. Smt, Radhika Devi ( AIR 1981 SC 2128 ) : (1981 All LJ 1172) that "....the finding of the District Judge being a finding of fact and being based on good evidence, it was not open to the High Court to interfere with it in a second appeal." 15. The conclusion of the Civil Judge in the present case that Hirdaya Narain was not proved to have borrowed the sum from Ram Raj is based upon admissible evidence on record. As a finding on a question of fact it is binding upon this court in the present second appeal and the rule of practice . invoked by the counsel for the appellant cannot justify an interference with it. 16. On this finding, it is obvious that the plaintiff was not entitled to the decree for recovery of any amount from Hirdaya Narain. The lower appellate court was not in error in taking the view to that effect. 17. The appeal lacks merit and is dismissed but the parties are left to bear their own costs.