PATHIVADA NARAYANSWAMY Vs. GAULOCHA PANNALAL AND KENGUVA APPALANARASAIAH

JUDGEMENT

(1.) This second appeal is preferred against the decree and judgment in A.S. No-7/1996 on the file of the District Court, Vizianagaram.

(2.) The 1st respondent-plaintiff filed a suit O.S.No.249/1988 on the file of the Principal District Munsif's Court, Vizianagaram, on the foot of a promissory note-Ex.A-1 for recovery of a sum of Rs.15,462.00 against defendants 1 and 2. It is the claim of the plaintiff that D-1 scribed the said promissory note while both the defendants signed it. While so, the 1st defendant set himself ex parte. The 2nd defendant contested the suit. His contention is that plaintiff and D-1 colluded together and brought into existence Ex.A-1 and that he never executed Ex,A-1. On the basis of the above pleadings, evidence was adduced by both parties. However, in spite of the allegation that Ex. A-1 is a forged document, no steps were taken by either party to send the same for expert opinion. Thereafter, on a consideration of the evidence, the trial court held that the plaintiff failed to prove the execution of Ex.A-1 and accordingly dismissed the suit. On appeal, the learned District Judge, on a re-apprisal of the evidence, held that the oral evidence adduced on behalf of the plaintiff is cogent and trustworthy, but in view of the allegation that Ex.A-1 is a forged document and as the parties did not take any steps for sending it to expert, the learned District Judge, in exercise of the powers under Section 73 of the Indian Evidence Act, 1872, proceeded to examine Ex.A-1 by himself and compared the disputed signature of 2nd defendant on Ex.A1 with his admitted signatures that are available in written statement, vakalat and deposition form and ultimately found that both the disputed and admitted signatures are tallying. He, therefore, held that the signature in Ex.A1 belongs to D-2 only. Accordingly, he decreed the suit against both the defendants.

(3.) Aggrieved by the said decree and judgment, the present second appeal is filed contending that for the purpose of ascertaining whether the signature in Ex.A-1 is put by 2nd defendant or not, the Court ought to have sent Ex.A-1 to an expert for his opinion, which will be given on a scientific comparison of the disputed and admitted signatures, under Section 73 of the Evidence Act, and in the absence of any expert opinion in the case, the Court cannot assume the role of an expert and proceed to compare the disputed signature. It is further contended that it amounts to filling up the lacunae in the case of either party and depriving the other party from taking advantage of such lacunae. It is, therefore, contended that the learned District Judge committed a grave error in assuming the role of an expert and the judgment under appeal is, therefore, liable to be set aside as it is not in consonance with the provisions of Section 73 of the Evidence Act. In support of his contention, strong reliance is placed upon the decisions of this Court in Khamarunnissa v. Fazal Hussain, 1997 (1) ALT 152 and Mohammed Sultan v. Nawazunnisa, 1997 (3) ALD 631.