Tasaduq Hussain vs Basawan Rai

Mohammad Noor, J.—This application is directed against a decree of the Small Cause Court Judge, Muzaffarpur, decreeing a suit for money against the petitioner.

The plaintiff''s case was that the defendant borrowed Rs. 218 from him and gave him a hand note. He produced in support of it a paper which is a promise to pay Rs. 218 with interest on demand, but the name of the person to whom it was payable is not specified.

The defendant on the other hand, pleaded that the paper was fabricated and stated that he had borrowed Rs. 50 from one Bankey Singh and had given him a hand note, that he had paid up that loan but could not get back that hand note. The suggestion was that the plaintiff somehow or other fabricated the disputed paper from that hand note. The learned Small Cause Court Judge has considered this statement and suggestion to be an admission of the defendant about the genuineness of the hand note in suit. It is not so. The hand note, which was admitted to have been executed was in favour of Bankey Singh and was for Rs. 50. It can possibly have no reference to the hand note in question as this hand note is for Rupees 218. Apart from this, there seems to be some confusion in the mind of the learned Judge about the hand note. At one place his remarks show that he was of opinion that the hand note in suit was in favour of Bankey Singh and that the defendant was trying to avoid its payment as Bankey Singh was dead. If that be so, there ought to have been a finding that the plaintiff was entitled to sue for the loan evidenced by the hand note in suit. Then the hand note in suit was sent to the finger print expert of the Criminal Investigation Department and a report was received to the effect that the thumb impression was that of the defendant, though the expect was unable to express any opinion whether it tallied with his right hand thumb impression. This aspect required consideration, as the defendant seems to be illiterate and his signature purports to be in the handwriting of another. The expert was however not examined, and the plaintiff had no opportunity of cross-examining him. His report is not admissible in evidence.

The plaintiff, on the other hand, contends that he wanted to examine another expert, but that prayer was rejected. In my opinion a case like this where the defendant is illiterate and the genuineness of a paper said to have been executed by him is in dispute and the decision of the question depends upon the genuineness of the finger print the parties should be allowed, if they want to examine experts.

The case must be sent back for a proper trial. Mr. Hasan Jan, who appears for the petitioner, asks me to dismiss the suit. He contends that the hand note not being in favour of any particular individual nor even in favour of bearer was not admissible as a hand note. It may be so, but the suit as it is framed can be tried and decided as a suit for loan independent of the hand note. The writing can of course be used as evidence of the loan irrespective of its being or not being a promissory note as defined in the Negotiable Instruments Act. I have read the plaint and I am of opinion that the suit can proceed on the basis of the loan. But if the writing produced by the plaintiff in support of his loan is proved to be fabricated, it will go a good deal against the plaintiff''s case.

In the absence of evidence of the expert it is impossible to say whether it is so. The case will be remanded to the learned Small Cause Court Judge. The parties will be entitled to examine experts in connexion with the finger print of the defendant. No other evidence will be allowed to be adduced by the parties. After taking the evidence of experts the learned Small Cause Court Judge will dispose of the case according to law. If he finds that the money was advanced by Bankey Singh it will be for him to decide whether on the evidence on the record the plaintiff is entitled to sue for that money. The costs of examination of the expert whose report is on the record will in the first instance be borne by the defendant. If any other expert is called by the plaintiff he will bear his costs in the first instance. The final liability of these costs will abide the result.

The application is allowed. Costs to abide the result. Hearing fee one gold mohur.