NARSINGDAS AGARWALA Vs. SHAIK BHORTOO

JUDGEMENT

(1.) THIS rule was obtained for a revision of the judgment and decree of the Small Cause Court Judge of Sealdah dismissing plaintiff's suit which was brought on the basis of a loan which was said to have been taken by defendants 1 to 5, in respect of which, it is said, that these defendants executed a hand note. The suit was contested by defendants 2 to 4. Defendant 1, although he filed a written statement, did not appear when the case was called on for hearing. A thumb-impression expert was examined in this case and he was of opinion that defendant 1 put his mark on the hand note but not defendants 2 and 4. The Subordinate Judge exercising Small Cause Court power came to the conclusion that as the hand note was tampered with by putting in the names of defendants 2 and 4 in the said hand-note although they were no parties to the instrument and did not take the loan and on this finding he dismissed the entire suit including the claims against defendants 1 and 5, relying on a decision of this Court: Gour Chandra Das V/s. Prasanna Kumar Chandra [1906] 33 Cal. 812. It is contended before me that the facts of the case relied on by the Subordinate Judge are distinguishable from the facts of the present case for there the decision proceeded not merely on the basis of there having been an addition of party to the instrument but on the further ground that there was forgery. As has been pointed out in that very case: The question, to what extent the identity of an instrument must be changed in order that its legal effect will be altered so as to bring the case within the terms of material alteration vitiating the instrument, must depend upon the nature of the alteration in each particular case. The test is not necessarily however whether the pecuniary liability of one of the parties has been increased by the change; it is of no consequence whether the alteration would be beneficial or detrimental to the party sought to be charged on the con-tract. The important question is whether the integrity and identity of the contract have been changed.

(2.) IN this case it is true that the thumb-impression expert has stated that the thumb- impressions of defendants 2 and 4 did not tally. The Court has come to the conclusion that the thumb-impressions of defendants 2 and 4, are not of those defendants relying on the evidence of the thumb-impression expert, and after all it cannot be said that the evidence of the thumb- impression expert is conclusive on the question. Reference has been made by the petitioner to the case of Parbati Charan V/s. Amarendra Nath , in which N.R. Chatterjea and Page, JJ., held that where the alteration is not in any material respect the principle that the addition and alteration should avoid the instrument altogether should not apply. Be that as it may, whether the plaintiff succeeds on the instrument or not, it appears from a reading of the plaint that the suit was also based on the original consideration, namely on the loan which was alleged to have been taken by defendants 1 and 5. The taking of the loan was proved by one Joy Mangal Misser who evidently was not cross-examined by defendants 1 and 5, who never cared to appear before the Small Cause Court Judge. Defendant 5 has not appeared even in this Court; although defendant 1 filed a written statement who did not care to appear to cross-examine Joy Mangal for the purpose of establishing that he never took the loan as was alleged in para. 1 of the plaint. IN these circumstances it seems to me that the ends of justice require that there should be a retrial of the suit before the Small Cause Court Judge so far as defendants 1 and 5 are concerned. The order dismissing the suit against defendants 2 and 4 will stand. It will be open to the parties to adduce fresh evidence if they are so advised and the learned Small Cause Court Judge will proceed to rehear the suit both on the evidence already on the record and on any further evidence which the parties want to adduce. It is said on behalf of the opposite party that the defendant has had no sufficient opportunity to cross-examine the witnesses. Whether that is right or not as the case is going back, defendant should be given an opportunity of cross-examining the witness of the plaintiff who had already been examined. There will be no order as to costs.