KARTEY SINGH Vs. IFTIKHAR AHMAD

JUDGEMENT

(1.) This is a second appeal by the defendant. Plaintiff's suit for recovery of Rs. 8,000/- on the basis of promissory note and the receipt dated 25th March, 1972 was dismissed by the trial court. The trial court held that there were material alterations in the promissory note, inasmuch as the refugee relief stamp was subsequently affixed and was not properly cancelled. The promissory note and the receipt were insufficiently stamped, and that the pronote was a forged document. It was further held that the plaintiff could not establish by reliable evidence that he had advanced Rs. 5,000/- to the defendant on the 25th March, 1972. On appeal, the court below held that the instrument in question was a bond and not a promissory note and that the provisions of Section 87 of the Negotiable Instruments Act had no application to the bond. The court below further held that the amount had been advanced and nothing had been paid by the defendant. It further held that the promissory note was not a forged document. The appeal of the plaintiff was allowed and the suit was decreed with costs throughout.

(2.) The following two substantial questions of law were framed at the time of admission of the appeal :

(3.) Mr. G. P. Bhargava, learned counsel for the appellant, contended that apart from the above two questions a third question also arose in the case viz. whether on the facts and the circumstances of the case it was established that the promissory note was a forged document. Learned counsel urged that in view of the proviso to Section 100 (5) of the Code of Civil Procedure, the court could hear the appeal on any other substantial question of law not formulated earlier if it was satisfied that the case involved such a question. The question whether the document was a forged document or not is a question of fact. The trial court held that the document was a forged document. The court below set aside that finding. Both the courts have considered the evidence. It is well settled that this Court in second appeal cannot interfere with a finding of fact howsoever grossly erroneous it may seem to be unless it can be shown that the finding is vitiated by error of law or procedure. Mr. Bhargava referred to a recent decision of their Lordships of the Supreme Court in the case of Madan Lal v. Gopi (AIR 1980 SC 1754) to urge that when the court below ignored the weight of preponderating circumstances and allowed their judgments to be influenced bv inconsequential matters, the High Court would be justified in reappreciating the evidence and in coming to its own independent conclusions. The point in controversy in the above case whether one Mansaram was in a fit state of mind when he executed the deed of adoption. Their Lordships observed that this was substantially a question of fact but the courts below ignored the weight of preponderating circumstances on the record and allowed their judgment to be influenced by inconsequential matters. Mr. Bhargava's contention was that the instrument in question was executed in the year 1972 and it bore revenue stamps of the year 1961 and had been affixed with refugee relife stamp which came into circulation after the alleged date of the execution of the instrument. It was a wholly got up document and in any event had been ante-dated and the court below had not taken into consideration the attending circumstances and its finding on the question of forgery was patently erroneous. I have heard Mr. R. H. Zaidi, learned counsel for the respondent also on this point and I think it will be appropriate to consider this point later.