A court of first appeal must consider all evidence produced by the parties and arrive at a definite conclusion, and any lapse or carelessness in not appreciating evidence properly may lead to injustice.

Shivdayal, J.

1. This is defendant's second appeal against a decree for Rs. 996/- passed against him. The respondent's suit was for recovery of Rs. 921/- as the principal sum and Rs. 75/- as interest thereon. The basis of the suit was a bond dated Miti Vaishak Badi 2 Samvat 2009 written on plaintiff's Bahi and alleged to have been executed by the defendant by affixing his thumb impression on it. The defendant denied the execution of the bond and attacked the suit as actuated by malice and previous enmity between the parties.

2. The trial Judge found that the bond was executed by the defendant. The defendant's appeal was disallowed by the Additional District Judge, Bhind.

3. Shri J.P. Gupta, Learned Counsel for the appellant first contends that the plaintiff did not examine himself and for that reason his suit must be dismissed. Reliance is placed on A.I.R. 1927 P.C. 230. In my opinion this contention cannot be accepted, The plaintiff produced three witnesses, two of whom stated that the defendant put his thumb impression and the third one stated that he was the scribe of the bond. A court always bears in mind the omission of a party to examine himself while weighing the evidence produced by it, but in a case of this nature it cannot be held that the judgment of the lower court is contrary of law under section 100 of the Code of Civil Procedure.

4. The second contention urged by Shri Gupta is that the learned Additional District Judge looked at other entries in the plaintiff's book which had not been produced in evidence and which were not on the record. The grievance is that the appellate court thus acted contrary to the procedure and the law of evidence and, further, he first of all created a prejudice in his own mind by the material outside the record and then discussed the evidence of the hand-writing expert produced by the defendant. This contention is correct inasmuch as the lower appellate court was not entitled to consider any document which was outside the record. That court does not say in its judgment that it was admitting them by way of additional evidence under the 27th rule of Order 41, Civil Procedure Code. Shri Gupta argues that if that extraneous material had been produced in evidence by the plaintiff, the defendant would have had an opportunity to show that they were not reliable and also to produce rebutting evidence, if so advised This argument too has considerable force in it.

5. It is then urged on behalf of the appellant that the evidence of the hand-writing expert was not properly considered by the courts below. Learned Counsel asks my attention to the observations made by the lower appellate court about the evidence of the handwriting expert and argues that the learned judge has clealy misread it. While the appellate court has said ???????? ??????? ??? ?? (certainly) ?? declare ???? ???? ?? disputed impression ???? ?? The statement of the hand writing expert is "Ex. A. 1.

It was no doubt open to the court to hold that the evidence of the hand-writing expert was not reliable or did not carry conviction but the court could not misread his statement.

6. Shri Dikshit Learned Counsel for the respondent relied on the decision of the Supreme Court in the case of Pattabhi Rama Swami (A.I.R. 1959 SC 57) and it is urged that this Court cannot go into the question of fact. In my opinion, the defects which I have pointed out above warrant an interference in second appeal and the judgment of the appellate Court cannot be upheld.

7. It has been laid down by their Lordships of the Supreme Court in the above cited pronouncement that on" questions of fact the judgment of the first appellate court is final. Their Lordships have nowhere said in that decision that a finding of fact must be allowed to stand even though the first appellate court has taken into consideration material outside the record. Even in a case where additional evidence has been admitted, but admitted wrongly, this Court can refuse to accept it as a co