Chandanmal Vs. Rawatmal - Court Judgment

Excerpt:
civil procedure code remand - district court recording, evidence of expert with consent of parties--remand order net containing such directing--held remand order is peremptory and district court cannot act beyond direction of high court consent of parties does not confer jurisdiction on district court.;recording of the evidence of the experts certainly conflicts with the direction given by this court and such a course of action was not permissible even with the consent of the parties.;i am clearly and firmly of the opining that the learned district judge exceeded the limits of his jurisdiction and if was not competent for him to have allowed the parties to lead further evidence given the deferent could not be allowed to are contrary to the direct ton given by this court which is peremptory in its nature the first appellate court could have acted in any other manner which may not in any case come in conflict with the direction given by this court. he could have disposed of the appeal in accordance with the agreement of the parties but bringing any other evidences on record of the plaintiff in rebuttal or otherwise of the defendant wold be contrary to the direction given by this court. the result necessarily is that the parties are precluded from pressing into service the evidence of both the experts.;(b) civil procedure code - appreciation of evidence--district judge reversing finding regarding presence of g on basis of contradictory statements -improbabilities taken notice of--fact relied upon by district court in absence of such cross examination--held, conjectural consideration & misreading of evidence cannot be accepted.;the learned district judge in his judgment under appeal has not appreciated the evidence on record in the light of the principles of appraisal of evidence.;it is true that the burden of the plea of payment was on the defendant and it is the defendant who has to discharge the burden, still the respective versions of both the parties have to be simultaneously taken into consideration and after weighing the evidence, it is to be found as to whose version or case is truthful.;the learned district judge reversed the finding of she civil judge on the basis of the contradictory statements of ghawarchand kanmal & chandanmal regarding the presence of ghewarchand. it appears that the statement of chandanmal has been misread by the learned district judge.;from the manner in which the defendant's evidence has been considered and the improbabilities have been taken notice of, it would appear that instead of dealing with the evidence, the learned judge proceeded to determine the question on his own imagination.;in the absence of such cross-examination, it was wrong on the part of the district judge to observe that the defendant, a clerk of a lawyer cannot save so much money. further it has also not been put to the defendant as to on what does he bad what money any why he did not pay off the money which he had collected so as to reduce the burden of interest.;the learned district judge has also failed to consider as contended by shri parekh that normally the whole writing could not have been forged. the forgery is generally made of the signatures. instead of considering the other improbabilities, this improbability should have been considered by the district judge. the learned district judge did not like to consider the plaintiff's evidence on his plea of alibi.;further conjectural considerations and misreading of evidence by the district judge leading to disbelieving the defendant's evidence cannot be accepted. thus, i have no hesitation in coming to the conclusion that from the evidence on record; it is proved that the defendant made payment of rs. 4.400/- and the plaintiff executed the receipt ex a-1.;(c) civil procedure code - expert's evidence direct & reliable evidence available--held, support not to be drawn from expert's opinion.;in my opinion, when where is direct evidence of the defendant which has been found to be reliable. it is not necessary to draw any support from the opinions given by she experts but when one considers the opinions given by the experts, the opinion of shri h.l. bhadhwar appears to be more sound and plausible great resemblance and similarities have been found in the two writings and the variations appear to be natural shri bhadhwar has started that there is no reasonable suspicion of any dots having been put first in the document ex. a1 and the document was prepared or imitated.;appeal allowed - cases referred: roop kishore v. jug raj, ilr (1953) 3 raj 988; bench decision of andhra pradesh high court in balaswaraswami varu v. mallidi dorayya, air 1972 andh pra 250; kesho ram v. board of revenue, u. p., allahabad, air 1972 all 360; k. veerabasappa v. court of district judge at chitradurga, air 1970 kant 40; bhopal sugar industries ltd. v. income-tax officer, bhopal, air 1961 sc 182; sarju pershad ramdeo sahu v. jwaleshwari pratap narain singh, air, 1951 sc 120; keshulal v. ram dayal, 1960 raj lw 595; sumermal v. hukma, 1964 raj lw 7; state v. bhola singh, air 1969 raj 219disposition: appeal accepted