JUDGMENT 1. This is a first appeal filed by the defendant under Section 96 of C.P. Code, 1908 against the judgment/decree dt. 11th June, 2004 passed by Ld. Civil Judge (Senior Division), No. I, Manipur East in Original (Money) Suit No. 4 of 2002/16 of 2002. 2. By impugned judgment/decree, the trial court decreed plaintiff’s suit and passed a money decree for recovery of Rupees One lakh in plaintiff’s favour and against the defendant. 3. So the question which arises for consideration in this appeal is whether Trial court was justified in decreeing plaintiff’s suit by passing a money decree for Rs. 1 lakh against the defendant? 4. Facts of the case are simple and short. They, however, need mention infra. Both plaintiff and defendant are married ladies having their respective families consisting of husband and grown up children. The defendant is working as supervisor in the social welfare department. The plaintiff is the resident of Lamphal Imphal west whereas the defendant is the resident of Singjamei Makha Sanasam Leikai P.O. Singjamei. 5. It is the case of the plaintiff that she is an acquaintance with the defendant. On 17.4.1998, the defendant came to her house and requested her (plaintiff) to start one business venture in partnership with her (defendant). The defendant requested the plaintiff to contribute a sum of Rs. 1 lakh as her business capital so that defendant on her part would invest/contribute Rs. 1 lakh and then both will purchase in joint name one Maruti van for Rs. 2 lakh and share the profit equally earned out of the business done by plying such Maruti van. The plaintiff on hearing the proposal agreed to contribute Rs. 1 lakh and accordingly on 19.4.1998 went to defendant’s house along with her friend - Smt R.K. Roma Devi, and gave to defendant a sum of Rs. 1 lakh. It is also the case of the plaintiff that defendant failed to fulfil her promise because she neither contributed her share of Rs. 1 lakh and nor purchased the Maruti Van. The plaintiff, therefore, complained that defendant misappropriated her sum of Rs. 1 lakh. When the plaintiff went on reminding defendant to fulfil the promise, she eventually agreed to return the money to the plaintiff and on 21.5.99 executed an acknowledgment in writing in plaintiff’s favour clearly admitting therein to have received a sum of Rs. The plaintiff, therefore, complained that defendant misappropriated her sum of Rs. 1 lakh. When the plaintiff went on reminding defendant to fulfil the promise, she eventually agreed to return the money to the plaintiff and on 21.5.99 executed an acknowledgment in writing in plaintiff’s favour clearly admitting therein to have received a sum of Rs. 1 lakh from her and further agreeing to return Rs. 1 lakh by 25.9.99. Since despite executing the acknowledgment, the defendant failed to honour her written promise and hence the plaintiff filed an FIR against the defendant for committing fraud and misrepresentation upon her and then sent legal notice on 8.1.2002 demanding Rs. 1 lakh. The defendant did not return and hence the suit out of which this appeal arises was filed by the plaintiff against the defendant for recovery of Rs. 1 Lakh. The suit was essentially based on written acknowledgment dt 21.5.99 (Ext.A/1). 6. The defendant filed her written statement and denied the entire claim of the plaintiff. According to defendant, she neither entered into any transaction with the plaintiff nor received any money and nor executed any acknowledgment in plaintiff’s favour as alleged by the plaintiff on 21.5.1999 much less the one relied upon by the plaintiff. In other words, it was a case of total denial on the part of the defendant so far as the claim of the plaintiff was concerned. 7. Parties examined oral evidence in support of their respective case. The Trial Court by impugned judgment held that the acknowledgment dt 21.5.99 (Ex-A-1) was executed by the defendant in plaintiff’s favour and accordingly passed a decree for recovery of Rs. 1 Lakh against the defendant. It is against this decree; the defendant has felt aggrieved and filed this appeal. 8. Having heard the learned counsel for the parties and on perusal of the record of the case, I have formed an opinion to allow the appeal in part and while setting aside of the decree, remand the case to the trial court for deciding the suit afresh as directed herein-below. 9. The basic question which arises for consideration in the suit is whether acknowledgment (Ex-A-1) dt 21.5.99 bears the signature of the defendant or not? If it bears her signatures than different consequence will follow whereas if it does not bear her signatures then suit has to be dismissed. 10. 9. The basic question which arises for consideration in the suit is whether acknowledgment (Ex-A-1) dt 21.5.99 bears the signature of the defendant or not? If it bears her signatures than different consequence will follow whereas if it does not bear her signatures then suit has to be dismissed. 10. In my considered view to decide this issue, the best evidence needed would be that of a “handwriting expert”. Unfortunately neither the plaintiff and nor the defendant examined any handwriting expert in support of their case and in consequence did not file any report of handwriting expert to prove the signature on the acknowledgment Dt.21.5.99 (Ext.A/1). They did not even file an application to call the expert evidence to prove this issue. In other words, no steps were taken by the plaintiff or the defendant or by the court in this behalf. In the absence of the handwriting expert evidence not being adduced by the parties, there was no d6cumentary (sic) as I would say best evidence on record except the oral testimony of the parties to enable the Court to record any categorical finding as to whether Ex-A bears the signature of the defendant and if so how and on what basis and if not then why? 11. I do not, however, wish to suggest that in the absence of expert evidence, the court could have never able to record any categorical finding on such issue. All that I wish to observe is that if there had been any other contemporaneous best evidence available on record which was material to record the finding on such issue then the court would have been able to record its finding one way or other on this issue in its proper perspective rather than to base its finding only on appreciating interested oral testimony of the parties. In my view, the court must always try to elicit the best evidence from the parties for deciding their rights if it is available through parties themselves or if they have not adduced any such evidence for any reason then in appropriate case by exercising suo motu powers. In my view, the court must always try to elicit the best evidence from the parties for deciding their rights if it is available through parties themselves or if they have not adduced any such evidence for any reason then in appropriate case by exercising suo motu powers. In this case, the court ought to have exercised suo motu power by taking recourse to the provisions of Order 26 of Civil Procedure Code and keeping in view the provisions of the Evidence Act for calling the handwriting expert to lead evidence as court witness rather than parties witness having noticed that no party had filed any expert evidence with a view to find out as to whether the Ex-A/1 bears the signatures of the defendant or not and if so whether they are genuine or forged? 12. It is for this infirmity; I am of the considered view that the factual finding recorded by the trial court may not be held sustainable for want of non-availability of best evidence needed to prove the case in its proper perspective. As on today, the finding of the Trial court is based on oral evidence of the parties without there being any documentary evidence which could be made available if the procedure suggested by this court had been followed. 13. In view of foregoing discussion, I do not consider it necessary to record any finding on any of the submissions urged by the learned counsel for the respondent at this stage nor do I consider it necessary to deal with the case law cited by learned counsel for the parties on the merits of the case and specially the cases cited by the learned counsel for the respondent in support of his submission. In my view it is not necessary and the same would now be considered by the Trial court while deciding the suit on merits after the expert evidence is recorded by the trial court as directed herein along with all evidence already on record. 14. In the light of these reasoning, I refrain from recording any finding on the merits of the case by appreciating the oral evidence of the parties in my appellate jurisdiction and leaving the same to be done at a later stage as and when occasion arises allow the appeal in part and set aside the impugned judgment and the decree. In the light of these reasoning, I refrain from recording any finding on the merits of the case by appreciating the oral evidence of the parties in my appellate jurisdiction and leaving the same to be done at a later stage as and when occasion arises allow the appeal in part and set aside the impugned judgment and the decree. As a consequence, the remand in this case seems inevitable and is accordingly ordered to the trial court with a direction that trial court will examine as “handwriting expert” as a court witness after finding out as to who would be examined as handwriting expert as court witness and will call upon him to submit his expert evidence on the question as to whether Ex- A-1 bears the signature of the defendant or not and if it bears then how and if it does not bear then why? 15. Let the report be submitted by the expert witness on the basis of his perusal and examination of the original record of the case and on the basis of any other documentary evidence needed to him to submit the report on the question. The parties to the suit will bear the expenses equally for examination of court witness. Parties will be granted full opportunity to challenge the report on its submission once it is proved in accordance with law. The trial court will then decide the suit on merits after taking into consideration the entire evidence already adduced including the court expert witness evidence strictly in accordance with law. 16. Let this be done within 6 months. Parties to appear before the concerned trial court on 26.8.2013 to enable the court to decide the suit as directed. The record of the trial court be sent back the court concerned so as to reach to the court before 26.8.2013. 17. Since the case is remanded to the trial court without deciding the same on merits in this appeal and hence the appellant is entitled to claim refund of court fees amount paid by her on memo of appeal in the High Court as provided under Section 13 of the Court-fees Act. 18. 17. Since the case is remanded to the trial court without deciding the same on merits in this appeal and hence the appellant is entitled to claim refund of court fees amount paid by her on memo of appeal in the High Court as provided under Section 13 of the Court-fees Act. 18. The Registry is directed to prepare the refund certificate of entire court fees amount paid by the appellant on memo of appeal in favour of the appellant to enable her to claim refund of the said money from the government treasury. No costs. Appeal partly allowed.