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1976 Supreme(Gau) 11
GAUHATI HIGH COURT
K. LAHIRI, J.
Quazi Talifiqur Rahman -Appellant
Versus
Sital Prasad Das and others -Respondent
Civil Revn. No.50 of 1975
Decided On : 08-03-1976
B. Sarma and D.K Sarma, A. Kalita, S.N. Bhuyan and D.P. Chaliha
A person who has seen another person signing or writing a document can prove the same to be in the handwriting or signature of that person, even if the person proving the document is ignorant of the language in which the document is written.
Headnote:
CIVIL PROCEDURE - PROMISSORY NOTE - POWER OF ATTORNEY - PLEA - Suit on a promissory note by plaintiff No. 2 for and on behalf of himself and plaintiff No. 1 describing himself as attorney of plaintiff No. 1 - Maintainability - New plea of power of attorney in Appeal - Legality.
Fact of the Case:
Plaintiff No. 2 filed a suit for and on behalf of himself and plaintiff No. 1 describing himself as an Attorney of plaintiff No. 1. The defendant contested the suit, denying the execution of the promissory note and alleging that it was a forged one. The trial court decreed the suit, holding that the suit was maintainable and that the defendant had executed the promissory note.
Finding of the Court:
The High Court held that the defendant's plea that the suit was not maintainable because the plaintiff No. 2 had no legal authority to institute the suit for and on behalf of plaintiff No. 1 was not maintainable as it was not taken in the written statement and no issue was struck on the point. The court also held that the trial court did not err in holding that the suit was not barred under Section 6 of the Assam Money Lenders Act, as the provision barring suits by money lenders not holding a valid registration certificate was not in force at the time the suit was instituted. Further, the court held that the trial court did not err in holding that the defendant executed the promissory note, even though the plaintiff No. 1, who was the only witness for the plaintiffs, was ignorant of the English language in which the promissory note was written, as he had seen the defendant signing the note.
Issues: 1. Whether the suit is maintainable under the Assam Money Lenders Act? 2. Whether the alleged hand-note was executed by Bhanwarilal Tatar, as alleged in the plaint? 3. Whether the present defendant is in any way liable? 4. To what relief, if any, is the plaintiff entitled?
Ratio Decidendi: 1. A suit is maintainable even if the plaintiff does not have a power of attorney from the other joint promissee, as long as the other joint promissee consents to the suit. 2. The failure of a money lender to maintain accounts under Section 6 of the Assam Money Lenders Act does not bar the institution of a suit for recovery of a loan. 3. A person who has seen another person signing or writing a document can prove the same to be in the handwriting or signature of that person, even if the person proving the document is ignorant of the language in which the document is written.
Final Decision: The appeal was dismissed and the decree of the trial court was affirmed.
ORDER:-This is an application under Article 227 of the Constitution read with Section 115 of the Code of Civil Procedure, hereinafter to be referred to as "the Code". The applicant invokes the power of the Court to quash an order dated 20-11-1974 passed by Shri D. Saikia, Sadar Munsiff, Gauhati in Title Suit No. 151 of 1969 whereby he directed that the execution of the decree in T.S. No. 46 of 1964 be stayed pending final disposal of the Title Suit No. 151 of 1969 in exercise of his power under Order 21, Rule 29 of the Code.
2. The requisite facts are that the present petitioner as Plaintiff filed a suit for ejectment against the predecessor of the opposite parties, hereinafter to be referred to as "the predecessor. In the said suit, the predecessor entered his appearance and contested the suit by filing written statement whereupon issues were also framed. Thereafter, "the predecessor" defaulted in appearance in Court and in due course an ex parte decree was passed against the predecessor and thereafter, the predecessor tried unsuccess fully to revive the ex parte decree. Then the present petitioner put the decree into execution against "the predecessor" and subsequently on the death of "the predecessor" the opposite parties were impleaded as parties in the said Execution proceedings who contested the, execution proceeding but were unsuccessful. The present Title Suit No.151 of 1969 was filed by "the predecessor" and it is submitted at the bar that on 23-2-1970 the present Opposite parties were substituted in place of the original judgment-debtor, namely, "the predecessor". The cause title of the present suit indicates that it is a suit for declaration that the decree obtained by file present petitioner in T. S. No. 46 of 1964 was a nullity as it was obtained by practising fraud on the Court. It may be stated here that on perusal of the plaint itself I did not find any material whatsoever to show that any particulars of fraud in any form whatsoever were pleaded therein. On perusal of the plaint I find that in fact no allegation has been made out in the body of the plaint nor any allegations have been made therein so that I may treat the suit to be a suit for declaration that the decree may be declared null and void on the grounds of either fraud or collusion. In fact no allegation of fraud is there excepting a vague and general allegation that the present petitioner has obtained the decree fraudulently. In my opinion, in a suit of this nature it is the duty of plaintiff to specify the particulars of fraud and collusion under O. 6 Rule 4 of the Code. Thereafter, in the present suit the present opposite parties filed an application under order 39 of the code with a prayer to injunct the present petitioner from proceeding with the execution case being Title Execution Case No. 25 of 1969. The learned Sadar Munsiff, Gauhati rejected the said application and that too rightly and thereafter an appeal was preferred by the petitioner against the said order but the same was also dismissed.
3. Thereafter, an application was made by the opposite parties purported to be an application under Order 21, Rule 29 of the Code praying for stay of the said Execution case No. 25 of 1969. The learned Munsiff allowed the prayer by the impugned order and hence this application.
4. I have heard the learned counsel of the parties and perused the records. The sole ground on which the learned Sadar Munsiff has exercised his jurisdiction under the said order is that a suit has been filed by the plaintiffs praying for a declaration that the decree was obtained by the petitioner fraudulently or collusively and according to him this gives him jurisdiction to stay proceedings in a regularly constituted Court of law without caring to note that the question of issuing an order to a party restraining him from proceeding with any other suit or proceedings in a regularly constituted Court of law deserves great care and consideration and such an order is not t
