JUDGMENT - MOHTA ANOOP V., J.: - This second appeal has been filed by the original defendant/appellant herein, against the original plaintiff-respondent herein, and thereby challenged the judgment and decree dated 1st August, 1991, passed in Regular Civil Appeal No. 80 of 1990 whereby, judgment and decree passed in Regular Civil Suit No. 88 of 1985 dated 4th April, 1990, was set aside and modified and thereby, directed the defendant to pay; the suit amount with interest and costs. The second appeal was admitted on 27th November, 1991, on the following question of law :

"Whether the finding of the Appellate Court which does not consider the intrinsic evidence supplied by the disputed document would be a proper finding which could be binding in the second appeal?"

2. The appellant had filed Suit No. 88 of 1985 against the respondent for recovery of Rs. 4,200/- as hand loan based on the agreement dated 13th February, 1982. As the respondent did not repay the said amount, notice was sent to repay the said loan amount. There was no reply to the said notice. Therefore, suit was filed. The respondent resisted the same by written statement and apart from other, the said agreement was denied. The parties led evidence, including expert's evidence. The agreement in question, filed in the suit, was not exhibited. The learned trial Judge, therefore, held that the appellant failed to prove the payment of Rs. 4,200/- on 13th February, 1982 to the respondent as the agreement itself was not proved. It was held that the suit agreement was a false, fake and forged document and, therefore, the suit itself was dismissed.

3. The respondent, therefore, preferred a Regular Appeal No. 80 of 1990. The First Appellate Court, after considering the material, as well as, the evidence on record including the documents in question, held that on 30th September, 1982, the appellant obtained hand loan of Rs. 4,200/- by executing the agreement in question and, therefore, reversed the trial Court judgment and decree and the said suit was allowed and decreed, as prayed. Being dissatisfied and affected by the same, appellant-original defendant has preferred the present second appeal.

4. Heard learned Counsel appearing for the appellant and after going through the reasoning given by the courts below, as well as, the evidence and material placed on record, there is no case made out to interfere with the reasoning given by the Appellate Court. There is no perversity and/or illegality while allowing the suit and reversing the judgment and decree passed by the trial Court. As the whole case revolves around the agreement dated 13th February, 1982. We have gone through the original record and verified the original document. The expert's opinion on this document is also part of the record. There is no dispute that the scriber of this document, as well as, one attesting witness of this document was examined. The Appellate Court, therefore, considered these aspects and accordingly has reversed the judgment of the trial Court.

5. The learned Counsel appearing for the appellant basically contended that the judgment of the trial Court is correct as the learned trial Judge, after considering the material, as well as, the evidence on record, observed specifically that the said document was false, bogus and cannot be relied upon. The said document, in fact, was not even exhibited. Therefore, the reversal of the Appellate Court by overlooking the intrinsic evidence and material placed on record before the trial Judge, was not correct and cannot be said to be reasonable and/or proper. Therefore, the learned Counsel submitted that the appeal be allowed and the judgment and decree passed by the trial Court be maintained. Learned Counsel further relied on section 73 of the Evidence Act and contended that in such cases, the Court should examine or verify the document and/or signature and/or the writing and should give its own opinion on merits of such document. The expert's opinion cannot be

Click Here to Read the rest of this document