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2001 DIGILAW 467 (CAL)

Joyram Das v. Sudhir Kumar Sen

2001-08-01

Subhro Kamal Mukherjee

body2001
JUDGMENT Subhro Kamal Mukherjee, J.: This is a plaintiffs appeal against the order of remand passed by the lower appellate court remitting the suit back to the learned trial Judge for fresh decision after giving the defendants an opportunity to pray for comparison of the disputed signatures appearing in exhibit Nos. 1, 2 and 2(a) with the admitted signatures of Tarapada Sen, since deceased, by an handwriting expert. 2. Title Suit No. 400 of 1982 was instituted in the court of the learned Munsif, Second Court at Jangipur, District: Murshidabad by this plaintiff for specific performance of contract dated April 26, 1973. The plaintiff alleged that the predecessor-in-interest of the defendants, Tarapada Sen, desired to sell the suit property and the plaintiff agreed to purchase the same at Rs.6,000/- (Rupees six thousand) only. On April 26, 1973 the said Tarapada Sen executed an agreement in favour of the plaintiff after receiving a sum of Rs. 2,000/- (Rupees two thousand) only as earnest money and it was settled that the plaintiff was to pay the balance amount by Chaitra 1382 B.S. and the said Tarapada Sen would execute the sale deed in favour of the plaintiff in respect of suit property. Subsequently, the plaintiff paid sum of Rs. 1000/- (Rupees one thousand) only on two occasions and obtained receipts for such payments from the said Tarapada Sen. Tarapada Sen assured the plaintiff that he would execute the deed of sale in favour of the plaintiff when he would come round from his illness, but gradually the condition of Tarapada Sen deteriorated and he was confined to his bed. On Ashwin 29, 1382 B.S. the plaintiff approached the said Tarapada Sen for getting the deed executed as early as possible and the said Tarapada Sen handed over to him a copy of the R.S. Khatian. As the Sub-Registry Office was closed at the material point of time, the deed could not be executed. On Kartick 1, 1382 B.S. Tarapada Sen expired and after his death plaintiff approached his heirs and legal representatives with a request to execute the sale deed on receipt of the balance consideration. As the Sub-Registry Office was closed at the material point of time, the deed could not be executed. On Kartick 1, 1382 B.S. Tarapada Sen expired and after his death plaintiff approached his heirs and legal representatives with a request to execute the sale deed on receipt of the balance consideration. However, the heirs and legal representatives refused to execute the deed and in reply to the letter of the learned Advocate of the plaintiff informed him that the said, Tarapada Sen had executed a life interest deed in favour of Shrimati Kalidasi Dasi on Baisakh 21, 1381 B.S. 3. The defendant Nos. 1 and 3 contested the suit by filing a written statement and denied all the allegations of the plaintiff. It was asserted that the said Tarapade Sen never depressed his willingness to sell the suit property nor ever accepted any earnest money from the plaintiff. The execution of the alleged binanama by the said Tarapada Sen was, also, denied and it was termed as fraudulent and collusive. It was contended that the valuation of, the property was not less than Rs. 12,000/- (Rupees twelve thousand) only and there was no occasion for Tarapada Sen to transfer the same to the plaintiff. 4. The learned Munsif by judgement and decree dated May 29, 1985 decreed the suit on contest with cost against the defendant Nos. 1 and 3. 5. The defendant Nos. 1 and 3 preferred Title Appeal No. 191 of 1985 in the court of the learned District Judge, Murshidabad, which was eventually transferred to the court of the learned Additional District Judge, First Court at Murshidabad. 6. In connection with the aforesaid appeal the defendant Nos. 1 and 3 filed an application for examination of the disputed signatures of Tarapada Sen appearing in exhibit Nos. 1, 2 and 2(a) by an handwriting expert with a direction on him to compare those signatures with the admitted signatures of the said Tarapada Sen. 7. By the impugned judgement and decree dated May 25,1991 the learned Additional District Judge refrained from discussing the merits of the case, but set aside the judgement and decree passed on contest by the learned Munsif and remitted the suit back to the learned Munsif for fresh decision, after giving the defendant Nos. 1 and 3 an opportunity to pray (or examination of the disputed signatures as were appearing in exhibit Nos. 1 and 3 an opportunity to pray (or examination of the disputed signatures as were appearing in exhibit Nos. 1, 2, and 2(a) with admitted signatures of Tarapada Sen by an handwriting expert. The learned Judge in the lower appellate court directed learned Munsif to decide the issues afresh in accordance with law. 8. Being aggrieved the plaintiff has come up with this appeal before this court. 9. Mr. Jiban Ratan Chatterjee, learned Advocate, appearing in support of the appeal, argued that the order of remand passed by the lower appellate court is wholly erroneous and the lower appellate court ought not to have set aside the contested judgement and decree passed by the learned trial Judge only for the purpose of obtaining a report from the handwriting expert. Mr. Chatterjee argued that the defendants were negligent in not applying for appointment of hand writing expert in the trial court and as such they were not entitled to an order of remand to fill in the lacunae. The learned Judge, it is submitted, misused the power of remand vested in the court of appeal. Mr. Chatterjee in support of his contentions cited the decision in the case of State of West Bengal vs. Lashmi Narayan Singh and Anr., reported in AIR 1956 Calcutta 87 and submitted that a party to an appeal is not entitled to get an order of remand to cover up deficiencies due completely to the laches of that party. Mr. Chatterjee, also cited the decisions in the cases Surendra Nath Roy vs. Gobinda Chandra Dutta and Ors., reported in 1996(2) CLJ 541 and Rushi and Anr. vs. Madan Behera and Anr., reported in AIR 1986 Orissa 207, to contend that the order of remand was bad. 10. Mr. Chatterjee, further, submitted that the leave granted by the appeal court to the contesting defendants to apply for appointment of handwriting expert to compare the signatures of Tarapada Sen in exhibit Nos. 1, 2 and 2(a) with his admitted signature was unnecessary as under section 73 of the Indian Evidence Act, 1872 the court has an express authority to compare hand writings and signatures and the learned Judge is well within his rights, if oppressed by paucity or unsatisfactory nature of evidence tendered, to apply his own eyes and mind and to come to his own conclusion. In support of such contentions Mr. In support of such contentions Mr. Chatterjee cited the decision in the case of Dr. Narayan Mukherjee vs. Shrimati Krishna Dey (Mukherjee), reported in 1996 (1) CHN 491 . 11. Mr. Bidyut Kumar Banerjee, learned Advocate, appearing for the respondents, however, submitted that the order of remand was justified in the facts and circumstances of the case and the same requires no interference by this court. 12. It has been held in the case of Rushi and Anr. vs. Madan Behera and Anr., reported in AIR 1986 Orissa 207, "the appellate court is required first to make the endeavour to answer the disputed finding and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial. It should be remembered that early conclusion of a 'lis' on merit is the public policy. In the name of 'ends of justice' or 'proper adjudicating' the appellate court is not to avoid the onerous responsibility cast on it by the Code. I am satisfied that the appellate court has failed to exercise the appellate power in this case. I may not be understood to express that the appellate court has no power to remand on the facts of this case. It should have first assessed the evidence and dealt with the finding and then given the reason why it would not be in a position to give a finding. In that case only an order of remand may be justified. Otherwise, remand may amount to misuse of the power vested in the Court. Merely because a power is vested, the appellate court is not to exercise it as it desires." 13. It has, also, been held in the case of Mannu Naicker and Ors. vs. Kalaimani and Ors., reported in 1987(2) Madras Law Journal 240, that generally speaking only where it is not possible to apply Order 41, Rule 24 to 27 of the Code of Civil Procedure a remand should be resorted to under Order 41, Rule 23 of the Code of Civil Procedure. It should be noted further that before remanding the case, Order 41, Rule 23 itself contemplates that the appellate court should reverse or set aside the decree. It should be noted further that before remanding the case, Order 41, Rule 23 itself contemplates that the appellate court should reverse or set aside the decree. Reading the Rules together, this provision will not apply to a case where the trial court has considered the entire evidence, but in the opinion of the appellate court a different view ought to be taken of the evidence and the appellate court is in a position to come to a finding on the evidence on record. In such a case, it is the duty of the appellate court to consider the matter as it stands and give its own finding in reversal of finding of the trial Court. But that would not justify a remand. The provisions of Order 41, Rule 27 Code of Civil Procedure should be strictly complied with by the Appellate Court. 14. I am not impressed by the reasons given by the lower appellate court for remanding the matter to the learned trial Judge. Power of remand is vested in the appellate court under Rules 23, 23A and 25 of the Order 41 of the Code of Civil Procedure. In the case in hand, undisputedly Rule 23 is not applicable, as the learned trial Judge has not decided the suit on a preliminary issue. The considerations would have been different if remand would have been directed under Rule 25 as under Rule 25 the appeal shall be kept pending and an issue is sent back on remand to the learned trial Judge for taking additional evidence required and for returning the evidence to the appellate court together with the findings thereon and the reasons therefor. This is, however, a case of open remand under Order 41, Rule 23 A of the Code of Civil Procedure. In my view, Order 41, Rule 23A of the Code of Civil Procedure should be sparingly used as it is the public policy that a litigation is to be concluded finally as early as possible. Where, of course, remand is felt necessary after judicial consideration and when Rule 25 of Order 41 of the Code of Civil Procedure is not considered to be adequate, the appellate court may consider the question of an open remand. 15. The learned trial Judge has considered the entire evidence and decreed the suit with a finding on the evidence already on record. 15. The learned trial Judge has considered the entire evidence and decreed the suit with a finding on the evidence already on record. In such a case it is the public duty of the appellate court to consider the matter as it stands and to give its own findings of the trial court. The appellate court strictly comply with the provisions of Order 41, Rule 27 of the Code of Civil Procedure. 16. It is true that a Division Bench of this court in the case of Dr. Narayan Mukherjee (supra) held that section 73 of the Indian Evidence Act, 1872 gives an express authority to the court to compare handwritings and signatures and the learned Judge is well within his rights, if oppressed by paucity or unsatisfactory nature of evidence tendered, to apply his own eyes and mind and come to his own conclusion. 17. However, the Supreme Court of India in the case of Ajit Sauant Majaguai vs. State of Karnataka, reported in (1997) 7 Supreme Court Cases 110, held that section 73 does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear the such comparison may either be made by the handwriting expert under section 45 or by anyone familiar with the handwriting of the person concerned as provided by section 47 or by court itself. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. 18. This is a suit for specific performance of contract. The defence of the defendants was that the alleged agreement and the alleged receipts filed on behalf of the plaintiff did not bear the genuine signatures of their predecessor-in-interest, Tarapada Sen. It is true that the contesting defendants, could have applied for appointment of handwriting expert in course of trial, but, in my view, it is always better to have an opinion from the expert in order to decide the rival contentions between the parties finally. It is true that the contesting defendants, could have applied for appointment of handwriting expert in course of trial, but, in my view, it is always better to have an opinion from the expert in order to decide the rival contentions between the parties finally. When, as has been rightly pointed out by the learned Judge in the lower appellate court, the main issue between the parties was whether the signatures appearing in the alleged agreement and the alleged receipts, marked exhibits 1, 2 and 2(a), were the genuine signatures of Tara pad a Sen, the said signatures should be compared with the admitted signatures of Tarapada Sen, but for obtaining a report of the handwriting expert it was not necessary for the lower appellate court to set aside the judgement and decree passed by the learned trial Judge on contest and to remit the suit for decision afresh by the learned trial Judge. 19. So, the impugned order of remand passed by the lower appellate court was not necessary and as such is not sustainable in the eye of law. 20. I, therefore, allow the appeal and set aside the order or remand and remit Title Appeal No. 191 of 1985 to the lower appellate court. The learned Additional District Judge is directed to appoint and handwriting expert to compare the signatures appearing in the binanama and the receipts, being exhibits 1, 2 and 2(a), with the admitted signatures of Tarapada Sen. The learned Judge in the lower appellate court is directed to admit the report of the handwriting expert as an additional evidence. The learned Judge will invite parties to file their objections, if any, to the report of handwriting expert and he is directed to record oral evidence, if necessary, himself without remanding the case to the learned trial Judge. The learned Judge will give opportunities to the parties to adduce evidence in rebuttal, but no evidence in further support of their respective cases. 21. The learned Judge will, thereafter, dispose of the appeal on merits as expeditiously as possible preferably within six months from the date of receipt of the lower courts' records by him. 22. There will be no order as to costs. 23. Drawing up of a formal decree is dispensed with. 24. 21. The learned Judge will, thereafter, dispose of the appeal on merits as expeditiously as possible preferably within six months from the date of receipt of the lower courts' records by him. 22. There will be no order as to costs. 23. Drawing up of a formal decree is dispensed with. 24. Let the lower courts' records along with a copy of this judgement be sent to the lower appellate court by a special messenger at the cost of the appellant and such cost is to be put in by two weeks. Appeal allowed.