Ram Singh and Another vs Ram Bahadur Singh

Wort, J.—This is an appeal from a decision of the learned Subordinate Judge in an action on a hand-note. The trial Court dismissed the suit, the learned Subordinate Judge in appeal gave the plaintiff a decree after considering the evidence of an expert. Two points are raised by Mr. Sivanandan Rai on behalf of the appellant. One is that the learned Subordinate Judge was acting contrary to law as regards the interrogatories which were administered to the handwriting expert, that is to say that he ordered cross-interrogatories to be served by the defendant, and he did not give the defendant an opportunity to cross-examine the expert.

One is loath to say that the provisions of the CPC as regards the issue of commissions and the administration of interrogatories (the latter being a part of the CPC relating to discovery) are not fully understood. What is quite clear in this case is this: that the handwriting expert not being called he was to be examined on commission. He was to be examined it appears by the plaintiff, whose witness he was, by written interrogatories.

The Judge would be acting entirely without jurisdiction if he ordered the defendants to file cross-interrogatories in a case of this kind. If they had consented to do so that would have been another matter, but in this case, as they were unaware as to what the answers of the expert were to be, it would have been impossible to agree to this course. But the position in this case on that point is somewhat obscure; it seems to me that it is impossible to come to a conclusion on the matter.

In substance the decision was that the witness was to be examined on commission and the defendant could have done one of two things. He could have, if he had agreed, either filed written interrogatories or insisted upon an opportunity being given him to cross-examine the witness orally. The second point which was argued was that as this expert evidence had been admitted at the appellate stage, again the learned Judge''s procedure was erroneous. The latest decision in this matter is the decision in the case of AIR 1931 143 (Privy Council) . It is necessary to bring the case under Order 41, Rule 27 and it is said by Mr. Sivanandan Rai that the case did not come under the provisions of that order.

It is suggested however by Mr. Husnain on behalf of the respondent that the case came under Clause (a) of that rule which says:

The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted.

Now it has been pointed out in the case to which I have made reference that if it comes under Clause (b) it is clear that if the appellate Court of its own motion requires additional evidence to be adduced in order to pronounce its judgment, then such evidence can be admitted. It is said that there was nothing of this kind in this case.

What had happened was that the case had gone on without an expert in the trial Court, and therefore in calling this evidence at the appellate stage, it was in substance patching up the plaintiff''s case. The Judge who made this order, which was the Subordinate Judge who had the matter before him before it came finally on appeal, had stated:

In that view of things I think that the learned Munsif should have given an opportunity to the plaintiffs to procure expert''s opinion from Meerut.

What happened was that the expert which the plaintiffs sought to examine had moved from Allahabad to Meerut. They had desired, it appears, that the papers should be sent to the witness Mr. Hardless and that his answers should be given.

Whilst they were waiting for the answers to the interrogatories which were ultimately framed by them, they appear to have made an application on 28th January 1929. The learned Judge in regard to that application said:

The plaintiffs put in a petition before the learned Munsif not being apprised of the matters as to what the real situation was, that sufficient adjournment might be allowed to him for procuring other evidence in the case pending receipt of the expert''s opinion after the comparison of the hand writing on the questioned document.

It became necessary to look at the order sheet to understand that part of the Judge''s order. It is sufficiently clear to me from the judgment, after a perusal of the order, that what happened was this: In the first instance the plaintiffs were desirous of submitting the papers to Mr. Hardless without interrogatories.

They eventually agreed to file written interrogatories and that when it was found that Mr. Hardless had moved from Allahabad they in fact made no further application that any evidence should be called. That leads me to suppose that the passage in the order-sheet of the Subordinate Judge, who ordered this evidence to be given, was to be read in one way only and that passage is this:

I think, however, and from my experience of the observation made by the Honourable Judges of the Patna High Court in certain cases it was a necessary part of the evidence for a Court''s consideration along with other evidence that might be adduced on the question of the genuineness of the handwriting of a document upon which the claim of the plaintiff rests.

On that passage alone it would have been necessary, in my judgment, to hold that the learned Subordinate Judge, in coming to the conclusion which he did, was merely exercising his discretion (a discretion which could not be interfered with) in allowing additional evidence to be called, But from the order-sheet it seems that the judgment, more particularly the passage to which I have referred, is explained. It seems to me (although as Mr. Husnain states it was a suggestion of his client) that in fact it was the desire of the Court that this evidence should be given. The short question, therefore, was whether the case in law came under Clause (b), Rule 27, Order 41. It has been pointed out in numerous authorities that there is no jurisdiction for a Court to require additional evidence unless there is a definite lacuna in the evidence and there is evidence already before it.

The parties in this case had given evidence, the trial Court had taken a certain view of it, and it was the duty of the appellate Court in the circumstances of the case, in my judgment, without calling expert evidence, to form its opinion on the evidence already before it. In my judgment, therefore, it is clear for the reasons which I have stated that the learned Subordinate Judge was irregular in admitting this evidence, and therefore, his judgment must be set aside and the case remanded to him to be heard and determined according to law in the absence of the evidence of the expert. The costs of this appeal will abide the result of the hearing in the Court below.