R.L. Anand, J.
1. Unsuccessful plaintiff has filed the present Civil Appeal and it has been directed against the judgment and decree dated 23.8.1979, passed by the Court of learned Additional District Judge, Jind, who, allowed the appeal of the defendant by setting aside the judgment and decree of the learned trial Court and dismissed the suit of the plaintiff-appellant, with costs throughout.
2. Brief facts of the case are that on 21.11.1974 Shri Prem Chand plaintiff advanced a cash loan of Rs. 4,000/- to Shri Chandgi Ram deceased, predecessor in interest of the defendants and in token thereof said Shri Chandgi Ram executed the Bahi entry Ex.P1 in favour of the plaintiff. The rate of interest settled was Rs. 1-9 Anna per cent per month. Chandgi Ram did not make any payment. Hence the suit.
3. Chandgi Ram died during the pendency of the suit and his L.Rs were substituted as defendants.
4. The defence taken by the L.Rs. that Shri Chandgi Ram never took any loan from the plaintiff nor executed any Bahi entry.
5. From the pleadings of the parties the learned trial Court framed the following issues:--
1. Whether the deceased Chandgi, predecessor-in-interest of the defendants executed bahi entry in dispute for consideration? OPP
2. Whether the suit of the plaintiff is abated as alleged in preliminary objection No. 1 OPD
3. Whether the plaintiff is a money-lender If so, its effect OPD
4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
5. Whether the proceedings are liable to the stayed under Haryana Agricultural Relief of Indebtedness Act, 1975? OPD
6. Whether the defendants are entitled to pay the decretal amount, if any, in instalments; if so, how much? OPD
7. Relief.
The parties led oral and documentary evidence in support of their case. Issue No.1 was decided in favour of the plaintiff while issues No.2 to 5 and 6-A were decided against the defendants. The trial Court allowed the defendants to make the payment of the decretal amount by instalments.
6. Not satisfied with the judgment and decree dated 10.2.1978, passed by the trial Court, the defendants filed the first appeal before the Court of Additional District Judge, Jind who vide the impugned judgment and decree accepted the appeal of the defendants and the suit of the plaintiff was dismissed for the reasons given in paras No. 7 to 17 of its judgment which are reproduced as under:--
'7. On issue No. 1, the plaintiff in order to prove that there was due execution of the entry by Chandgi, examined :
PW1 Shri Sugan Chand Handwriting and FingererPrint expert.PW2 Ram Lal Process-ServerPW3 Suraj Bhan Scribe of the entryPW4 Prem Chand The plaintiff.8. PW2 Ram Lal deposed that he had effected the service of the summons in this case Ex.P8 on Chandgi and obtained on it his thumb impressions. This thumb impression Ex.P.3 was made the basis of comparison with the thumb impression alleged to be of Chandgi and existing on dispued bahi entry Ex.P.1 Shri Sugan Chand Gupta, Expert says that he made this comparison and found the two of one and the same person.
9. The plaintiff and the scribe too deposed to the execution as was expected of them.
10. As against this the defendants, besides leading other evidence, got the disputed thumb impression examined by the expert in the Finger Print Bureau, Madhuban. The Expert from the Bureau Shri Ram Dhan was examined on commission by the Senior Sub Judge, Karhal. This expert was of the opinion that the thumb impression marked S (Ex.P.3) on the summons was sufficiently ink smudged and did not permit of comparison in its ridge characteristic details with the thumb impression on the disputed entry Ex.P.1, which too was partly ink smudged. He concluded that in view of this position no opinion could be given. Report of the Expert is Ex. D.A.
Enlarged photographs prepared by Shri Sugan Chand Gupta Expert of the plaintiff, were shown to this witness and he said that the points on these enlargements were all artificial.
11. I have seen the thumb impression myself and find that the thumb impression mark S (Ex.P.3) on the summons Ex.P.8 is really so ink smudged that it cannot afford basis for any comparison.
12. The learned trial Court appears to have preferred the finding of the private Expert to that of the disinterested Expert of the Finger Print Bureau, in spite of all that has been said above. One of the remarks made by it is that the private Expert had categorically stated that the disputed thumb impression on Ex.P.1 and the thumb impression marks (Ex.P.3) on the summon tallied. I wonder where was the scope for being misled by the so called categorical nature of the statement of the private Expert.
13. Then the trial Court restored to the facile approach that even if the testimony of the private Expert were to be ignored, the case of the plaintiff would not be effected because Suraj Bhan and Prem had not been cross-examined on the question of execution. Earlier, it had noted that to the private Expert also it has not been suggested that the two thumb impressions did not tally and his report was false. Adopting this approach it made the following vague and untenable observation :-
'In that situation even if the opinion of the Finger Print Expert, Madhuban, is quite contrary to the opinion of the private Hand Writing and Finger Expert the same cannot be attached much importance'. 14. As to the non cross-examination of the witness on the points of execution it was not necessary for the defendants to suggest that the thumb impression was not of Chandgi. Thumb Impression is such a thing that no body not even the person whose impression it is, can identify it unless he is an expert. In the present case Chandgi was dead and it would obviously not be possible for his legal representatives widow and children, to say that thumb impression was actually of Chandgi or not. To expect them, even in this situation, to suggest to any of these witnesses that it was not the thumb impression of Chandgi would be expecting them to make a suggestion about the truth or falsehood of which they themselves could not be legitimately sure. The leaned trial Court thus misapplied the principle enunciated in this behalf in AIR 1958 Punjab 440.
15. The trial Court also lost sight of the fact that plaintiff Prem Chand and scribe Suraj Bhan were real brothers.
16. In this way the learned trial Judge accepted the testimony of Sugan Chand Gupta which, to say the least, should not have been accepted at all. He virtually decreed the suit on the basis of the statements of two interested witnesses who are brothers inter se and who appear to have procured perjured expert evidence. In my opinion the trial Judges' approach was entirely wrong. He did not scrutinise the evidence critically and with the dispassionate care expected of him.
16. To sum up I hold that the plaintiff has failed to prove that Chandgi had executed the disputed entry. Trial Court's finding on issue No. 1, is, therefore, held wrong and is hereby reversed and the issue is decided against the plaintiff.
17. On issue No.6-A it was admitted by the appellant's counsel that if Chandgi were alive he would not be entitled to the benefit of the provisions of the Haryana Relief of Indebtedness Act, 1976 and since in the present case the decree can be executed only against the estate of deceased, the present appellants cannot invoke these provision. Indeed, finding on this issue was not assailed seriously.' This time plaintiff is not satisfied with the judgment and decree dated 23.8.1989, passed by the Additional District Judge, Jind and has filed [he present appeal.
7. I have heard Sh. Ashok Aggarwal, learned senior counsel appearing on behalf of the appellant and Sh. Rajesh Chaudhary, appearing on behalf of the respondents and with their assistance have gone through the record of the case.
8. The parties addressed argument only on issue No. 1 and I shall confine my discussion on this issue only. The onus was upon the plaintiff to show that deceased Chandgi Ram executed a Bahi entry and received a consideration of Rs.4,000/-. In order to prove this issue, the plaintiff examined Sh. Sugan Chand Gupta Handwriting Expert as PW-1 and it was compared with the thumb-impression of Sh. Chandgi Ram on he back of the Court summons Ex.P.3 and he further opined that both the thumb-impressions were of the same person. He gave his report Ex.P.2. Let us look to the cross-examination of his witness which is as follows;-
'I am not a summoned witness. I examined the file in the Court with the help of microscope and took photos with the permission of the Court'.
This is the entire cross-examination which has been suggested to Sh. Shugan Chand Gupta Handwriting Expert. Not an iota of suggestion has been put to this witness that the disputed thumb-impression is smudged or it is not comparable with the thumb-impression appearing on the summon Ex.P.3 We know that the evidence of the handwriting expert is not a substantive piece of evidence but it can certainly be looked into for the purpose of corroboration. As to whether the consideration of Rs.4,000/- was paid to Sh. Chandgi Ram there is a statement of PW3 Sh. Suraj Bhan. He is the scribe of the writing Ex.P.1 and he deposed that this writing was executed at the instance of Sh. Changi Ram and further the plaintiff paid a sum of Rs.4,000/- to Sh. Chandgi Ram thumb-marked the bahi entry Ex.P.1 in his presence. The statement of PW3 is further corroborated by the statement of the plaintiff Sh, Prem Chand who appeared as PW-4. Thus, from the statement of the plaintiff corroborated by the scribe of the entry plus the expert evidence, I am of the considered opinion that the plaintiff has successfully discharged the onus on issue No.1. The learned first appellate Court has given too much importance to the statement of the handwriting Expert examined by the defendant by stating that this expert hails from Madhuban and he is an independent person. As I stated above that the report of the Handwriting Expert is not a substantive piece of evidence and it is only a corroborative piece of evidence. Unfortunately Sh. Changri Ram defendant could not be examined on account of his death. But let us examine the reasons given by the Handwriting Expert of Madhuban who mainly stated that the standard thumb-impress ion appearing on the back of P3 is partly smudged but comparable. In such a situation, it is difficult for me to digest the opinion of the expert of the defendant that no opinion could be given. There was also a preponderance in favour of the plaintiff. Had the plaintiff not advanced the money to the predecessor of the defendants, there was hardly any necessity on the part of the plaintiff to file a money suit against him. Even if it is assumed for the sake of argument that entry Ex.P.1 is not proved on account of non-comparable with the admitted thumb-impression of Sh. Chandgi Ram, still the suit of the plaintiff can be decreed for the reasons of consideration received and had. It has been observed in A.I.R. 1958 Punjab 440 as follows:-
'It is a well established rule of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns that particular witness. If no such questions are put, the Court presume that the witness account has been accepted, If it is intended to suggest that a witness was not speaking the truth, upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation'.
9. Reliance was also placed by the counsel for the appellant on A.I.R. 1961 Calcutta 359 and A.I.R. 1967 Calcutta 205 and it was submitted that it is not the case of the defendant put to the handwriting expert that the disputed thumb-impression is not comparable with the standard thumb-impression. Moreover, the defendants have not challenged the execution of the writing in dispute. In such a situation, it has to be inferred that Chandgi Ram received the consideration after executing an entry in the bahi. The stand taken up by the defendant is that Chandgi Ram was a drunkard and he was indulging in to vices and for this alleged reason the wife of Sh. Chandgi Ram had been managing the family affairs. There is nothing on the record to suffest that Sh. Chandgi Ram was involved in any case under the Excise Act or he was arrested for any alleged nefarious activities. The defence has been taken for the sake of defence. Therefore, I am not inclined to endorse the reasons given by the first appellate Court which dismissed the suit. Thus, the finding of the first appellate Court on issue No.1 is hereby set aside and that of the trial Court is hereby restored.
10. The learned counsel for the respondents relies upon J.T. 2001(5) S.C. 537 and submitted that the High Court cannot interfere in the second appeal, with finding of fact, even if it is grossly erroneous. The cited judgment is not applicable to the facts in hand firstly there is no concurrent finding of fact secondly the first appellate Court has not rightly appreciated the evidence. When a perverse approach has been adopted by the first appellate Court it will always be open to the High Court to set aside that finding.
11. Resultantly, the appeal is allowed; judgment and decree of the learned first appellate Court is hereby set aside and the suit of the plaintiff-appellant is hereby decreedas prayed for with costs throughout. However, the defendants shall pay the decretalamount by quarterly instalment of Rs.1000/- and the first instalment shall start with effect from 1st of January, 2003. The second instalment of Rs.1,000/- shall be payable bythe defendant on or before 1.4.2003. The further quarterly instalments shall continue tillthe entire amount is paid. In default of payment of any instalment it will be open to theplaintiff-decree-holder to realise the amount by execution against the estate of Sh.Chandgi Ram inherited by his L.R.s.