GONDU Vs. TULSIRAM

JUDGEMENT

(1.) 1. Gondu, defendant 1, on 6th May 1918 executed a mortgage deed in favour of three brothers, Balaji, defendant 2, Barku, plaintiff 1 and Motiram, the father of Tulsiram, plaki-tiff 2. The suit was brought by Barku and Tulsiram on the allegation that the mortgagor had made payments to Balaji which Balaji was not sharing with the other mortgagees and that Balaji had finally accepted satisfaction of the whole debt by execution by the mortgagor of a now mortgage deed in favour of Balaji and his son Vistari, defendant 3. A decree for half the amount due on the mortgage has been passed in favour of Tulsiram alone.

(2.) IT was contended on behalf of the defendants that the payments were not made to Balaji alone but to him and Motiram, and receipts have been put in purporting to be signed by both. It has been found by both the lower Courts that the signatures which purport to be those of Motiram are not genuine. The appellate Court remanded the case to give an opportunity to the defence to examine an expert in handwriting as regards these signatures. An application was made for examination of an expert at Delhi on commission. The plaintiff objected on the ground that they could not afford to go to Delhi to cross-examine the expert. The trial Court took the view that the remanding order allowed it no discretion in the matter and that the expert had to be called and examined before it. The defendants refused to call him and asserted their absolute right (which they do not possess) to a commission. The trial Court rejected the application for a commission and the lower appellate Court has upheld the decision, though not apparently on the ground that the trial Court had no discretion in the matter. I am of opinion that the trial Court had discretion and could, if it wished, have issued a commission. If am not, however, satisfied that it ought to have done this. The plea that the expert resides beyond the Court's jurisdiction has no force: it is possible to obtain the appearance of a handwriting expert in any Court by a payment of the necessary fees. If for any reason the expert had been unable to appear, then a case might be made out for issuing a commission; but that was not the case here. It is pleaded that the plaintiffs did not need to go to Delhi for cross-examination of the expert as the examination could have been conducted by interrogatories and cross-interrogatories. This again is not a valid plea. It is obvious that examination of a witness before the Court trying the case is much more satisfactory than an examination on commission; and wherever possible the witness should be called and examined before the trying Court. I decline now to remand the case for the issue of a commission.

(3.) IT is clear that the Court has power to make comparison and come to a conclusion from it. I cannot, in second (appeal, consider whether that conclusion is correct or not. I must take it that the signatures are not genuine.