- (1.) THIS appeal has been filed by the plaintiff and arises out of the suit for the recovery of Rs. 442/- on account of price of certain grain said to have been due to the plaintiff and the proforma defendants Nos. 2, 3 and 4 from the principal defendant Kuberdan. It was alleged that Kuberdan had executed a khata in lieu of that grain on 14th March, 1943. Kuberdan admitted that he had executed the khata but pleaded that the settlement of the khata in suit and some other dues had been made between the parties on payment of Rs. 325/- and that there was nothing due to the plaintiff, after the payment of the said amount. Kuberden filed a receipt Ex. D. l to prove the said payment.
(2.) THE defendant Kuberdan examined himself and produced two witness viz. Bhopalsingh and Shankerdan to prove the alleged settlement and the payment of Rs. 325/ -. All these witnesses stated that the receipt had been executed by the plaintiff Ram Sahai. THE plaintiff denied having executed the said receipt. He filed an application on 30 March, 1948, that a hand writing expert was attending court on 7th April 1948, and that the receipt, Ex D. l, be got examined by him, Another application was made on the same date Kuberdan and Bhopalsingh be called and the plaintiff be given an opportunity to examine them with respect to certain documents The trial court fixed 7th of April,1948 for consideration of these two applications. The case was adjourned and finally on 12th August, 1948; the application relating to the calling of witnesses was dismissed. There does not appear to be any specific order relating to the application regarding the examination of the questioned document by the expert. After the close of evidence, the learned Munsif, Neem ka-thana dismissed the suit holding that the payment has been proved. The plaintiff went in appeal and the learned Civil Judge. Neem-ka-thana, who heard the appeal, agreed with the first court and dismissed the appeal. The plaintiff has come in second appeal. I have heard Mr. PC. Bhandari on behalf of the appellant and Mr. R. K. Rastogi on behalf of the respondent. Only three points have been urged by Mr. Bhandari in this appeal. They are as follows - (1) That the lower courts were wrong in not remanding the case for examination of the question document by an handwriting expert; (2) That the lower courts were wrong in not giving an opportunity to the plaintiff to examine Kuberdan and Bhopalsingh with respect to certain documents filed by the plaintiff and (3) That the lower courts were wrong in relying on their own observations regarding the questioned documents. I may dispose of the point No. 3 first. Mr. Bhandari has relied upon the following observations of their Lordships of the Privy Council in the case of Kesarbai vs. Jethabai Jivan (l ). "it is unsatisfactory and dangerous to stake a decision; in a case where there is a direct conflict of testimony between parties to as general character of a signature, on the correct determination of the genuineness of the signature by mere comparison with the admitted signatures, especially without the aid in evidence of microscopic enlargement or any expert advice". There is no doubt that the observation of their Lordships of the Privy Council are entitled to a great weight the facts of present case are quite distinguishable from the facts of the case before their Lordships. In the case before their Lordships the dispute was between one Mst. Kessarbai on one side and Jethabhai Jivan on another Mst. Kessar-bai brought the suit for the recovery of four cases of saffron from Jethabhai Jivan, who, on the other hand, brought another suit against Mst. Kessarbai claiming a sum of Rs. 20,000/-before the delivery of saffron in question on the ground that the said amount was charged upon the saffron in question, in order to prove the alleged charge, Jethabhai Jivan summoned a bearer cheque from the bank of Netherlands in order to show that the sum for which the charge was claimed was paid to the firm of Keshavlal by an open bearer cheque issued by the firm of Jethabhai Jivan, on the said bank. The endorsement of the said cheque was denied by Keshavalal, who was alleged to have withdrawn the amount from the bank on behalf of Kessarbai's firm. Nobody came forward from the bank or else where to prove that Keshavlal had made his signatures on the cheque in his presence. The cheque alone was produced by some clerk of the bank who had no direct knowledge about the alleged payment and about the alleged endorsement. The trial court believing the evidence produced by Kessarbai held that the sum claimed was not paid to Keshavlal or to the firm of Mst Kessarbai. The appellate court, however, on comparing the questioned signatures and endorsement with some admitted signatures and endorsement reversed the finding of the first court and come to the conclusion that the endorsement and signatures of Keshavlal were genuine Of course, this finding was arrived at purely on the observations of the appellate court and there was no other evidence in support of it. Under these circumstances, their Lordships, if I may say so with respect were perfectly justified in setting aside the finding of the High Court If there be no direct testimony about the questioned hand-writing then certainly it is very dangerous and unsatisfactory for a court to stake at its decision on its observations alone. In the present case, however, there is direct testimony of three witnesses who have shown that the plaintiff Ram Sahai signed the questioned document in their presence. This evidence was believed by both the lower courts and in believing it they also relied upon the fact that the questioned signatures very much resembled with the admitted signatures of the plaintiff. Under these circumstances, it can not be said that the two lower courts recorded a finding in favour of the genuineness of the questioned document on their observations alone and the ruling of their Lordships, therefore does not apply to the facts of the present case. Their Lord ships found that there was no material on the record to support the observations of the appellate court with respect to the genuineness of the questioned signatures and endorsements which will be apparent from the following extract, from their Lordships' judgments: "it is a remarkable feature of this case that no one was called from the bank to prove the circumstances in which the bearer cheque was paid over the counter, and the endorsements of the payee and of Keshavlal placed upon it, or even to say that no one in the bank recollected the circumstances. The cheque is for a large amount; it is one of 13 entries of payments made on that day by the bank as appearing in their day book, which appears to represent the whole of the payments for the day and amounts to Rs. 35,292/ -. The book appears to record the number of the 21 notes in which the sum was paid;the initials of the paying clerk of the bank are on the cheque. A bank official was called, but only an accountant clerk, to produce the books, who knew nothing of the relevant facts. Their Lordships are unable to accept the view that the case must be decided in favour of Jethabhai on the ground that the cheque was undoubtedly cashed by Keshavlal. " It is to be found from that judgment that their Lordships themselves compared the questioned signatures and endorsement with the admitted ones but they were unable to feel the certainty which was expressed by the Chief Justice in the appellate court. It, therefore, appears from that very judgment that even their Lordships did not consider it illegal to compare the questioned handwriting with the admitted hand-writing. Sec. 73 of the Evidence Act permits a court to make such a comparison. It runs as follows - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writting, or seal has not been produced or proved for any other purpose. " Of course, so far as the hand-writing is concerned, even the evidence of an expert is not conclusive and it can be called in aid only to assess the value of direct evidence which might be produced in the case. The decision of the case ultimately rests upon the direct evidence produced in the case if such evidence is available. In the present case, as has been said above, direct evidence was produced and believed by both the lower courts. I can, therefore, find no defect in the judgment of the lower courts on the ground that they took the help of their observations also in assessing the real worth of the direct evidence. Taking up point No. 1, there is no doubt that an application was moved on 30th March, 1948, on behalf of the plaintiff that an except be consulted on the questioned hand-writing. It was stated that a hand-writing except was appearing in court in some other case on 7th April 1948, and the document be placed before him then. The court made an order that the document be placed before the expert on 7th April, 1948. However, it does not appear from the record whether the expert attended the court on the 7th of April, 1948. If he attended the court, it was for the plaintiff to request the court to have the document examined by that expert, but no such thing was done. It appears from the record that the plaintiff cared only for his second application regarding the recalling of Kuberdan and Bhopalsingh for cross-examination because there is neither any application on the record nor anything in the order-sheet to show that the plaintiff pressed for the examination of the questioned documents by an expert. It appears from the order-sheet dated 12th August, 1948, that the plaintiff pressed the court only in connection with the application regarding the recalling of the two witnesses and after considering the arguments of both the parties, the court held that there was no law under which the plaintiff could be permitted to cross-examine the two witnesses over again. On this view the said application was dismissed. If the plaintiff had pressed the application regarding the examination of the questioned documents by an expert, there is no reason why there should be no mention about it in the order-sheet of 12th August, 1944. That the plaintiff did not care to press that application regarding the examination by an expert is strengthened by the fact that in his grounds of appeal before the lower appellate court, no ground was taken that the first court was not justified in not having the questioned documents examined by an expert. From the judgment also it appears that no such point was pressed at the time of arguments. Under these circumstances, it is too late in the day for the appellant to come to this court in second appeal with a request that the case be remanded for the examination of the questioned documents by a hand-writing expert. I do not find any force in this argument of the learned counsel for the appellant. Taxing up point No. 2, it is true that the plaintiff made an application dated 30th March, 1948, that Kuberdan and Bhopalsingh be called for the purpose of further cross-examination by the plaintiff with respect to certain documents. According to the lower courts, there was no law under which the plaintiff could be permitted to do so. Learned counsel for the appellant has not been able to cite any provision of law other than those of Order 18 Rule 17. That provision certainly authorises a court to recall a witness but for the purposes of putting any questions which the court itself might think necessary. It does not authorise a party to have a witness, whom he has already cross-examined, recalled for the purpose of further cross-examination. The first court had a perfect discretion to recall the witness if it had considered that certain questions should be put to him by the court. But in the present case the witness were sought to be called not for putting any questions in cross-examination on the matter in issue. They were required to be recalled for the purpose of proving that one of them was a scribe of a certain document executed in favour of the defendant and that the defendant was a scribe of a certain document executed by some third party in favour of the witness Bhopalsingh, These documents had absolutely nothing to do with the present case and it would certainly have been a sheer waste of time of court if these two witnesses had been recalled simply for the purpose of showing that one was the scribe of a document executed by a third party in the other's favour and vice versa. The decision of this case certainly could not turn upon whatever answers the witnesses might have given if recalled and further cross-examined. I do not think that the lower courts were unjustified in not giving such an opportunity to the plaintiff. I do not find any force in this appeal and dismiss it with costs to the contesting respondents. Mr. Bhandari on behalf of the appellant prayed for leave to appeal to the Division Bench. I, however, not find and such importance in any of the points raised that such leave should be given. Leave is refused. . ;