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Rajasthan High Court · body

2025 DIGILAW 1711 (RAJ)

Ramji Lal Leela, S/o. Shri Bajrang Lal Leela v. Moti Ram, S/o. Shri Girdhari Lal

2025-11-04

BIPIN GUPTA

body2025
JUDGMENT : BIPIN GUPTA, J. 1. The present second appeal has arisen from the judgment and decree dated 08.09.1998 passed by learned Additional District and Sessions Judge No.2, Jodhpur in Civil Appeal (Decree) No.22/1998, whereby, the appeal preferred by the present appellant was rejected and the decree dated 20.03.1998 passed by learned Additional Civil Judge (Junior Division) and Judicial Magistrate No.5, Jodhpur for recovery of amount of Rs.22,100/- along with interest @18% was confirmed. 2. The plaintiff-respondent herein had filed a suit for recovery of Rs.22,100/- contending therein that the plaintiff had agreed to purchase a plot from Jagdamba Graha Nirman Sahkari Samiti Ltd., Jodhpur (hereinafter referred to as the ‘Sahkari Samiti’) for consideration of Rs.1,30,000/- on 19.08.1983. Part amounts were deposited by him with the Samiti and the receipts of the same were given. In the year 1991, defendant was the President of the Sahkari Samiti and demanded Rs.15,000/- for the purpose of executing the registration deed of the plot. The defendant received Rs.15,000/- from the plaintiff and issued a ‘Kucchi’ receipt and assured that printed receipt of the Sahkari Samiti will be given to him. 3. Subsequently, when the printed receipt was not given to the plaintiff, he inquired regarding the same from the Sahkari Samiti wherein he was informed that no such amount has been deposited in his name. On this, the plaintiff demanded the money from the defendant who assured that he will return back the same. However, he did not return back the amount and therefore, the plaintiff issued a notice on 01.03.1994 to the defendant of which no reply was received and thereafter, the plaintiff filed a suit for recovery of the amount along with interest @18% per annum. The original amount was Rs.15,000/- and the interest up to the date of filing of the suit was Rs.7,100/-. Therefore, a suit was filed for recovery of Rs.22,100/- with a claim of future interest @ 18% per annum. 4. The defendant in his written statement averred that no such amount was received by him from the plaintiff for depositing with the Sahakari Samiti. Further, notice was also not received by him. Since no amount was given by the plaintiff to the defendant therefore there was no question of depositing such amount with the Sahkari Samiti. 4. The defendant in his written statement averred that no such amount was received by him from the plaintiff for depositing with the Sahakari Samiti. Further, notice was also not received by him. Since no amount was given by the plaintiff to the defendant therefore there was no question of depositing such amount with the Sahkari Samiti. He therefore asserted that no cause of action has arisen and the suit had been filed on false and frivolous grounds. He prayed that the same may be dismissed. 5. On the basis of the pleadings of the parties following issues were framed by the learned Trial Court : 6. The learned Trial Court decided issue no.1 in favour of the plaintiff. Issue no.2 was decided in favour of the plaintiff. Issue no.3 was decided in favour of the plaintiff. Issue no.4 was decided in favour of the plaintiff. Issue No.5 was decided in favour of plaintiff. Issue no.6 was decided against the defendant and on the basis of the finding of issues, the suit of plaintiff was decreed vide judgment dated 20.03.1998. 7. The defendant being aggrieved of the same preferred an appeal before the First Appellate Court. The Appellate Court dismissed the appeal vide judgment dated 08.09.1998 and confirmed the judgment and decree dated 20.03.1998. 8. Thereafter, the defendant preferred the present second appeal which was admitted on 19.11.1998 and the following substantial questions of law were framed : “(1) WHETHER the judgment of the First Appellate Court was liable to be set aside on the ground that it did not frame points for determination as per provisions under Order 41 Rule 31 CPC? (2) WHETHER the Trial Court committed illegality by comparing the hand writing on the disputed documents under the provisions of Section 73 of the Indian Evidence Act when the aid of an expert was not provided to the Court?” 9. Learned counsel for the appellant submitted that since the First Appellate Court did not frame any point for determination nor decided the appeal by giving specific finding on each and every issue, therefore, the judgment passed by the First Appellate Court may be set aside for non-compliance of Order 41 Rule 31 CPC. 10. Learned counsel for the appellant submitted that since the First Appellate Court did not frame any point for determination nor decided the appeal by giving specific finding on each and every issue, therefore, the judgment passed by the First Appellate Court may be set aside for non-compliance of Order 41 Rule 31 CPC. 10. He further submitted that both the courts below had committed illegality in applying the provision under Section 73 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘Act of 1872’) by comparing the signatures itself without taking any aid of an expert and thus, the learned Courts below have committed error of law while holding the signatures on the receipt Exhibit-1A to be that of the defendant-appellant. 11. Learned counsel for the appellant further submitted that the disputed signatures on the receipts have not been proved. Moreover, the plaintiff have not got them proved through an expert and since the defendant-appellant had denied the signatures, it was incumbent upon the plaintiff to get the signatures proved. Thus, without the proof of the signatures on the alleged receipt, the decision by both the lower courts to the effect that the signatures were of the defendant, without the aid of an expert, was bad in the eyes of law and the same may be set aside. 12. Learned counsel for the appellant relied upon a judgment passed by a Co-ordinate Bench of this Court at Jaipur in the case of Darogi & Ors. Vs. Chetram & Ors. ; S.B. Civil Writ Petition No.17904/2018 (decided on 19.08.2025) to buttress his arguments. 13. None appeared on behalf of the respondent to oppose the submissions made at the Bar and hence, the appeal was heard ex-parte. 14. The first substantial question of law which has been framed by this Court is to the effect that whether the First Appellate Court had committed error in not following the provisions laid down under Order 41 Rule 31 CPC and therefore liable to be set aside. 15. This Court finds that the learned First Appellate Court had considered each and every argument of the learned counsel for the appellant which was put forthwith during the course of hearing of the First Appeal and has also considered the evidence before the Court. 15. This Court finds that the learned First Appellate Court had considered each and every argument of the learned counsel for the appellant which was put forthwith during the course of hearing of the First Appeal and has also considered the evidence before the Court. The counsel for the appellant before the First Appellate Court, as recorded in para no.3 of the judgment, had argued that the plaintiff had no sufficient material available to prove issue no.1. The learned Trial Court had committed illegality in deciding issue no.1 in favour of the plaintiff on the basis of “Kucchi” receipt and which has not been proved with the aid of expert which was essential as the defendant had denied the signatures. 16. The learned counsel for the appellant before the First Appellate Court had argued that the comparison of signature of the defendant on receipt with that on the reply and the vakalatnama by the learned Trial Court was beyond the powers of the Court and it was also argued by the counsel for appellant in the First Appellate Court that the signatures on exhibit No.1A were not matching and thus contended that if the plaintiff wanted to get them proved, he ought to have produced an expert evidence regarding the same. 17. Considering all the arguments raised by learned counsel for the appellant, as recorded in para no.3 of the First Appellate Court order, this Court is of the firm opinion that the First Appellate Court had considered each and every argument as raised before the Appellate Court in para no.5 of its judgment and has appreciated the entire evidence on record and after considering the entire evidence, relevant documents and arguments advanced by learned counsel for the defendant-appellant, the First Appellate Court had recorded an independent finding and had recorded reasons to repel the arguments raised by learned counsel for the defendant-appellant. 18. The First Appellate Court has given a categorical decision on account of the fact that there was no specific denial by the defendant as to receipt of the amount in dispute even in his individual capacity and merely denied that the amount had not been received by him in the capacity of the President of the Sahkari Samiti. In absence of the specific denial, the First Appellate Court had recorded the finding and had upheld the finding on issue no.1. 19. In absence of the specific denial, the First Appellate Court had recorded the finding and had upheld the finding on issue no.1. 19. The First Appellate Court had observed that there was no specific denial in the reply nor there was any specific denial of the signatures on the “Kucchi” receipt by the defendant. Neither cross-examination was conducted by the defendant from P.W.1 and P.W.2 in regard to signature, nor any suggestion was given by the defendant that on Exhibit-1A there was no signatures of the defendant or that the signature are forged. In such facts and circumstances, considering the entire material evidence available on record, the First Appellate Court decided the appeal by upholding the judgment of learned Trial Court. The judgment cited by appellant of Darogi (supra) is not applicable on the present facts and circumstances of the case. 20. So far as how the first appeal is to be decided by the Appellate Court and how the provisions of Order 41 Rule 31 CPC are to be made applicable by the First Appellate Court is concerned, the Hon’ble Apex Court in a judgment passed in the case of Nafees Ahmad & Anr. Vs. Soinuddin & Ors. ; Civil Appeal No.5213/2025 (decided on 16.04.2025) held as under : “4. Order 41 Rule 31 CPC read thus: “Rule 31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at that time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 5. It appears that the High Court relying upon few decision took the view that Order 41 Rule 31 CPC is mandatory and the failure on the part of the Appellate Court to frame the points for determination as per the provisions of Order 41 Rule 31 CPC would vitiate the entire judgment and make it wholly void. 6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are in complete disagreement with the view taken by the High Court. 7. 6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are in complete disagreement with the view taken by the High Court. 7. We propose to follow the dictum as laid by this Court in the case “G. Amalorpavam And Others v. R.C. Diocese of Madurai And Others” reported in (2006) 3 SCC 224 , wherein this Court observed that whether in a particular case, there has been substantial compliance, with the provisions of Order 41 Rule 31 CPC should be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions, by itself, may not vitiate the judgment and make it wholly void and may be ignored if there has been a substantial compliance with it.” 21. As held by the Hon’ble Apex Court in Nafees Ahmad (supra) that merely due to non-compliance of Order 41 Rule 31 CPC, the judgment cannot be said to be unsustainable as it is the duty of the Court to determine the judgment on the basis of nature of judgment delivered in each case. As observed earlier, this Court is of the firm opinion that the judgment passed by the learned First Appellate Court has considered each and every aspect of the matter and argument raised by the appellant and had dealt with the arguments as well as the evidence available on record in detail and only thereafter had held that there was no ground to interfere in the judgment and decree passed by the learned Trial Court. In such nature of decision having been passed by the First Appellate Court, it cannot be said that the same suffers from non-compliance of Order 41 Rule 31 CPC. Therefore, question no.1 as framed by this Court is answered in negative and it is held that the learned First Appellate Court had not violated the provisions of Order 41 Rule 31 CPC. 22. The argument raised by learned counsel for the appellant on the second substantial question of law is that the learned Trial Court had committed illegality by comparing the hand-writing on the disputed document as per the provision of Section 73 of the Act of 1872, without taking any aid from the expert. 23. For the purpose of deciding the said question, Section 73 of the Act of 1872 is reproduced as under :- “73. 23. For the purpose of deciding the said question, Section 73 of the Act of 1872 is reproduced as under :- “73. Comparison of signature, writing or seal with others admitted or proved.- (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it is alleged to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared by the Court or under its orders with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. (2) The Court may direct any person present in Court to write any words or figures for the purpose of comparison of the words or figures so written with any words or figures alleged to have been written by such person. (3) This section applies also, with any necessary modifications, to finger impressions, palm impressions, footprints and type-writing. (4) Without prejudice to the provisions of any other law for the time being in force, nothing in this section shall apply to a criminal Court before it has taken cognizance of an offence." 24. A bare perusal of the Section reveals that it gives power to the Court to compare the handwriting and signature while giving its finding. The learned Trial Court as well as the First Appellate Court have not only recorded the finding on account of comparison of signatures by the courts below but have also seen the other circumstances and evidence available on record and had thereafter reached to a conclusion. The other circumstances included the factum that there was no specific denial of the defendant in the reply with regard to the signatures on the alleged receipt and further there had been no cross-examination from the plaintiff witnesses with regard to the signature of the defendant. 25. Further, the First Appellate Court had found that the plaintiff had proved his case whereas the defendant had failed to prove in any manner that the signatures were not of the defendant. 25. Further, the First Appellate Court had found that the plaintiff had proved his case whereas the defendant had failed to prove in any manner that the signatures were not of the defendant. If the defendant was so sure that the signature were not his or were not in his hand-writing, it was for him to have requested the Court to send the same for expert opinion i.e. to determine whether the hand-writing and signatures on the receipt were of the defendant. The defendant had not filed any application before the learned Trial Court to seek an expert opinion and in such circumstances it seems that the defendant had not sought any expert evidence on the exhibited documents and the signatures proved by the plaintiff. Hence, no illegality can be said to have been committed by both the Courts below and it was well within jurisdiction to exercise the power available under Section 73 of the Act of 1872. Moreover, there is no requirement which states that before exercising the power under of the Act of 1872, the expert opinion is required to be taken by the Court. 26. The aforesaid opinion of this Court is supported by the judgment rendered by a three-Judge Bench of Hon’ble Apex Court in the case of A. Neelalohithadasan Nadar vs. George Mascrene and Ors. ; (1994) 3 SCR 437, wherein it was reiterated that the Court may play the role of an expert and can apply its own observation. Further, even in cases where an opinion is rendered by the experts, the opinion is not final and can be subjected to the scrutiny of the Court. The relevant paragraph of the judgment is reproduced herein below: “15. In the matter of co-relation and employment of Section 73 of the Evidence Act, the High Court took support from a decision of this Court in Fakhruddin v. The State of Madhya Pradesh AIR 1967 SC 1326 , The High Court justified its step of comparison in paragraph 13 of the judgment under appeal as follows: “Learned counsel representing the first respondent raised a contention that this Court should not take the part of an expert in handwriting to compare the signatures of witnesses to find out whether they were signatures of the same person. According to counsel, the disputed signatures should be sent to experts for their opinion. According to counsel, the disputed signatures should be sent to experts for their opinion. In the alternative it is contended that petitioner should examine persons familiar with the signature of the witnesses to establish the identity of signatures. Handwriting may be proved on admission of the writer or by the evidence of some witness in whose presence it was written. This is direct evidence. In the absence of such direct evidence, opinion of handwriting expert or of some who is familiar with the writing of the person is relevant. Thus besides direct evidence which of course is the best method of proof, the law makes two other modes also as relevant, i.e. a writing may be proved to be the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to compare the handwritings on a scientific basis. A third method is also provided by the Evidence Act in Section 73 . It is comparison by the court with the writing made in the presence of the court or admitted or proved to be the writing of the person. The Court can apply its own observation to the admitted or proved writings and to compare them with the disputed one. This comparison depends on an analysis of the characteristics in the admitted or proved writings and of the same characteristics in large measure in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subjected to the scrutiny by court. The expert's opinion is not the final word. The court must see for itself whether it can safely be held that the two writings are of the same person. To this extent, court may play the role of an expert. The court can accept the disputed signature to be that of the witness when it is satisfied on its observation that it is safe to accept the same. In this view, do not think it necessary to have the admitted signature of the witness to be compared with the signature in the disputed counterfoils of the ballot paper by any expert. This court can scrutinise the characteristics of the signatures. In this view, do not think it necessary to have the admitted signature of the witness to be compared with the signature in the disputed counterfoils of the ballot paper by any expert. This court can scrutinise the characteristics of the signatures. If it finds that the disputed signature has the same characteristics in large measure with the admitted signature, it can safely come to the conclusion that both are of the same person.” The High Court finally recorded its satisfaction or otherwise in the case of signatures resulting in double voting and impersonation, and signatures and thumb impression not tallying at all. No meaningful argument on facts in regard thereto was addressed before us except to the approach of employing Section 73 of the Evidence Act. It was urged that the High Court should not have become an expert. We, however, are of the view that when larger public interest is served by expeditious disposal of an Election Petition, then the course adopted by the High Court, as suggested from the afore-extraction, is in conformity therewith. Although courts should be slow in resorting to this method, we do not find it faulted, more so when the Courts resort to exercise of such power is approved in two other cases of this Court in State (Delhi Administration) v. Pali Ram MANU/SC/0189/1978 : 1979CriLJ17 and Murari Lal v. State of Madhya Pradesh 1980CriLJ396. As a sequitur the finding recorded by the High Court on Issue No. 1 is perfectly sound.” 27. In view of the aforesaid observations, question no.2 as framed is also answered in negative and it is held that the court can compare handwriting and signatures under Section 73 of the Act of 1872 without the aid of expert. Since both the questions as framed above have been answered in negative, the present second appeal is dismissed 28. All pending applications, if any, are disposed of.