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PETITIONER: ISHWARI PRASAD MISHRA

       Vs.

RESPONDENT: MOHAMMAD ISA

DATE OF JUDGMENT: 27/08/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1963 AIR 1728            1963 SCR  (3) 722  CITATOR INFO :  C          1967 SC1326  (8)  R          1973 SC2200  (3)  F          1977 SC1091  (7)  F          1980 SC 531  (7,10)

ACT: Appellate Court-Duty of the appellate Judges in dealing with the  judgment  of the lower court- Criticism  of  the  trial Judge or the witnesses-Extravagant language to be avoided.

HEADNOTE: In  a  suit  instituted by the appellant  for  the  specific performance of an agreement of sale executed by the  respon- dent,  the latter disputed the genuineness and  validity  of the  agreement  and  its  consideration.   The  trial  court decreed  the suit but on appeal the High Court reversed  the findings of the trial court and dismissed the suit.  In  the appeal  filed by the appellant, the Supreme Court went  into the  evidence  in  the  case elaborately  and  came  to  the conclusion  that  the decision of the trial court  that  the suit  agreement was genuine and valid and was  supported  by consideration,  was right and that the High Court  erred  in reversing that decision.  In the judgement delivered by  it, the  High  Court had passed severe  strictures  against  the trial court suggesting that  the decision of the trial court was based on extraneous considerations. (1958) S.C.R. 825.                             723 Similarly, the High Court made some observations criticizing some  of the witnesses examined in the case suggesting  that they  had  consipired to give false evidence.   The  Supreme Court  after  carefully  considering the  matter  fully  was satisfied  that  the  amputations made  by  the  High  Court against the impartiality and the objectivity of the approach adopted by the trial Judge were wholly unjustified. Held,  that  the  High  Court  erred  in  using  extravagant language  in  criticizing the trial court; that the  use  of strong language and imputation of corrupt motives should not be  made light-heartedly because the judge against whom  the imputations  are made has no remedy in law to vindicate  his position.

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Held, further, that the High Court was, similarly, in  error in its criticism of some the witnesses examined in the  case as showing a tendency to regard every witness whose evidence the  High  Court  did  not feel inclined  to  accept,  as  a perjuror and a conspirator.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 630 of 1960. Appeal  by special leave from the judgment and decree  dated September  29, 1959, of the Patna High Court in Appeal  from Original Decree No. 290 of 1953. C.   K. Dapthary, Solicitor-General of India, L.  K.    Jha. Subodh Kumar Jha and B. C. Prasad for the    appellant.  A. V. Viswanatha Sastri.  D. P. Singh, M. K. Ramamurthi, B. K. Garg and S. C. Agarwal for the respondent. 1962.   August 27.  The Judgment of the Court was  delivered by GAJENDRAGADKAR,  J.-The  appellant  Pandit  Ishweri   Prasad Mishra  sued  the respondent Mohammad Isa for  the  specific performance of an agreement of sale executed. by him on  the 18th  May.,  1950,in the Court of the  1st  Additional  Sub- Judge, 724 Muzeffarpur.   By  the said agreement,  the  respondent  had promised  to execute a sale-deed in favour of the  appellant in  respects  of  his house  situated  at  Sitamarhi  Bazar, Sitamarhi.   The appellant’s claim was decreed by the  trial ’Court which ordered the respondent to execute a  sale-deed, within a month from the date of the decree on receipt of Rs. 4,000/which  is the balance of consideration remainig to  be paid  to him.’ The respondent challenged this decree  by  an appeal  before the Patna High Court, and his  challenge  has succeeded.   In the result, the decree passed by  the  trial Court  was reversed and the appellants suit  dismissed  with costs  throughout.   It  is against  this  decree  that  the appellant has come to Court with a certificate issued by the Patna  High  Court;  and so, the  principal  question  which arises  in  the present appeal is whether the  agreement  on which the appellants suit is based is genuine, valid and for consideration. The  subject-matter  of  the agreement of sale  is  a  house belonging to the respondent.  According to the appellant, at the time when the agreement was executed, the  consideration for  the transfer was settled at Rs. 14,000/- out  of  which Rs.  10,900/were paid as earnest money.  The  agreement  had stipulated  that  the sale-deed had to  be  executed  within three  months  from  its date; in  other  words,  under  the agreement, the respondent was bound to execute the sale-deed on  or before the 18th August., 1950.  The appellant  called upon the’respondent to carry out the terms of the  agreement and offered to pay the balance of Rs. 4,000/-, but since the respondent  did  not comply with the demand’  made,  by  the appellant  but   attempted to dispute  the  genuineness  and validity.  of  the agreement itself, the  present  suit  was filed on 27th August, 1950, for specific performance of  the said agreement, The  appellant’s case is that negotiations for the  sale  of the respondents house had commenced 725 on  the 3rd May, 1950, between the father ’of the  Appellant and  the respondent at the instance of Bihari Lal Singh  who acted  as  a  negotiator, The respondent  then  claimed  Rs. 20,000/-  as  the  price of the house  and  the  appellant’s

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father was prepared to pay only Rs. 10,000/-.  On the 8th of May,1950 the parties met again when the appellant raised his offer  to Rs. 13,000/-, but the respondent refused to  below Rs, 15,000/-. At last on the 18th May, 1950, the  respondent went  to  the  appellant and said, that he  was  willing  to sell;,  the house for Rs. 14,000/-.  The appellant was  then told  by the respondent that he was anxious to  purchase  an Icecream machine which was likely to cost Rs 12 000/and  so, he  wanted the agreement to be made that very day.  Both  of them  then went to Babu Amar Choudhary, a  senior,lawyer  of the place at about 9 A.M., but he had then gone to the court which was holding morning sittings, and so, the parties  met him  at his office at 2 P.M. along with the  scribe  Khakhan Singh  and  the  necessary  stamp  paper..  Thereafter,  the parties  went to the house of Mr. Choudhary and he  dictated the  draft of the agreement in the presence of his  son  who was  also  a lawyer.  The draft was taken  down  by  Khakhan Singh.   After the draft was thus completed, the  appellant, the  respondent  and  the scribe went to the  house  of  the appellant.   At  this place Khakhan  Singh  (P.W.11)  scribe copied  the  draft fair on a stamp paper which  had  already been purchased in the morning that day.  After the draft was thus  copied  on a stamp paper, the appellant  paid  to  the respondent  Rs.  10,000/- and the  respondent  executed  the document admitting in his own handwriting the receipt of the earnest money of Rs.10,000/-. The document was then attested by  Ganesh Thakur (P.W.5), Jamuna Singh (P.W. 8) and  Bihari Lal  Saraogi (P.W.9). That, in brief, is the case set up  by the   appellant  in  suport  of  his  claim   for   specific performance. 726 The  respondent,  however, denied the appellant’s  claim  in toto.   He  suggested that the agreement of  sale  bore  his thumb marks,he had not entered into any agreement of sale at all.  He had entrusted the appellant with stamp papers be &- ring  his  thumb  marks  in order that  he  may  act  as  an arbitrator  in his dispute with Ramzan Ali.  The  respondent thus  alleged that the appellant had made fraudulent use  of the  stamp  paper entrusted to him by the respondent  for  a different  purpose and had brought into existence  a  forged document   on  which  the  present  suit  was  based.    The respondent  also denied that he had received Rs.  10,000/-or that be wanted to purchase an Ice-cream machine.  He  urged, that the value of the house which was the subject-matter  of the  alleged  agreement was worth Rs.  60,000/-.   In  other words,  the  respondent  disputed  the  genuineness  of  the agreement  and  so,  resisted  the  appellant’s  claim   for specific performance. On these pleadings, the trial Court framed four issues,  the principal  issue  being  in regard to  the  genuineness  and validity  of the suit agreement and its  consideration.   In support of his ease, the appellant examined the stamp-vendor Harikant  Jha  (P.W.3) to prove the purchase  of  the  stamp paper  for  the  purpose  of  drafting  the  agreement.   He examined  Mr.  Choudhary (P.W. IO), the young  lawyer  whose father had dictated the draft to prove the fact that a draft had  been prepared with the help of the senior  lawyer.   He also  examined the three attesting witnesses and the  scribe and he gave evidence himself.  Besides, Mr. Bennott (P.W.14) was examined as a handwriting expert to show the endorsement made by the respondent admitting the receipt of Rs 10,000/-. On the other hand, the respondent examined five witnesses to support his versions about the appointment of the  appellant as  an  arbitrator in connection with which  a  stamp  paper bearing his thumb marks had been entrusted to the

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727 appellant.  He also examined Karim Bux (D.W.6) to prove that the value of the property was Rs. 60,000/-, and he  examined Nasrat Hussain (D.W.7) a handwriting expert to show that the impugned engrossment was not in his handwriting.  The  learned trial Judge rejected the defence theory  about the appointment of the appellant as an arbitrator.  He  also held  that  the evidence about the value ..of  the  property given by the Karim Bux was unreliable and that the house  in question   was  not  worth  more  than  Rs.  14,000/-.    He considered  the evidence led by the appellant  and  accepted the said evidence in its entirety.  In the result, he  found that  the agreement of sale on which the suit was based  had been  executed by the respondent, that it was valid and  was supported  by  consideration.   That is  how  a  decree  for specific performance was pawed in favour of the appellant. The High Court has reversed all the findings recorded by the trial  Court.   It  has  held  that  the  story  about   the appointment of the appellant as an arbitrator cannot be said to  be  altogether improbable and  that  when  comparatively weighed,  it appeared to be more probable than that  of  the appellant.   It  has  held that the value  of  the  property including the land can in no way be less than Rs.  30,000/-, and  on examining the evidence adduced by the appellant,  it came  to  the  conclusion that the  said  evidence  was  not reliable   and  really  showed  a  conspiracy  between   the witnesses and the appellant to bring into existence a  false and forged document.  The evidence adduced by the respondent to  support his theory of an attempted  arbitration  between himself  and Ramzan Ali has no doubt been considered by  the High  Court  to  be  unworthy, of  credence  ;  but  on  the probabilities,  the High Court was prepared to  prefer  that story  to the story of the appellant.  That, in  brief,,  is the result of 728 the  findings  made by the High Court.  In  consequence  the trial  Court’s  decree  was reversed and be  seen  that  the question which we have to decide in the present appeal is  a question of fact and its decision lies within a very  narrow compass   did the respondent execute the agreement  of  sale and has he received Re. 10,000/- as earnest money under it ? Incidentally, what can be said to be the proper value of the house  which is the subject-matter-of the agreement ?  These are the main points which fall to be decided. Before  considering the evidence adduced by the  parties  in the  present proceedings, it would be necessary  to  examine some  broad and general features of the case on  which  both the  parties  have  relied before us.  Mr.  Sastri  for  the respondent  have  urged  that  there  are  certain   unusual features  of  the  case  which lend  support  to  the  final decision of the High Court.  The first circumstance on which Mr.  Sastri relies is that the plaint does not refer to  the making  of the draft by a Senior lawyer as it  should  have. Mr.  Choudhary,  the senior lawyer, it is  conceded,  was  a lawyer  of status in Sitamarhi and the argument is  that  if his services had been requestioned in making a draft  before the  agreement  was finalised on a stamp  paper,  that  fact would have been mentioned in the plaint; and since it is not so  mentioned the story about the draft should be  rejected. We are not impressed by this argument.  Strictly speaking we de  not see how it was necessary for the appellant to  refer to  the draft in his pleadings at all.  Besides,  the  story about  the draft is supported by all the witnesses  examined on the side of the appellant, including Mr. Choudhary’s sons and  unless we are inclined to disbelieve the whole of  that

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evidence,  it would be impossible to accede to the  argument that the story about the draft is untrue.  No doubt, the 729 High Court has come to the conclusion that there has been  a conspiracy between all the witnesses, and if that conclusion is  right,  then  the draft would, of  course,  have  to  be treated  as a false document.  But for the  moment,  dealing with  the  argument about the failure of  the  appellant  to mention the ’draft in the plaint by itself, we do not  think there is any substance in it. Then  it  is urged that there are certain  recitals  in  the draft  which are so unusual that it is very unlikely that  a senior  lawyer  could  have  dictated  it.   The   agreement (Exbt.6) describes the property by its boundaries, sets  out the details as to the circumstances under which the document came to be executed, recites the payment of Rs. 10,000/-  as earnest  money,  provides, that Rs. 14,000/-  is  the  price agreed  to be paid, prescribes the period within  which  the saledeed has to be executed, and contains two clauses  which would  come into operation on default of the  respondent  to execute the sale-deed.  It is on these two clauses that  the argument  is  based.   The first out of  these  two  clauses provide  that  "’if the respondent does  not  execution  the sale-deed  within  the  due date,  the  appellant  would  be competent  to take necessary steps for getting the  deed  of sale   executed  in  respect  of  the  aforesaid   property, otherwise  this deed of the contract shall be deemed  to  be the deed of sale." It is true that if the last recital "that the deed of contract shall be deemed to be the deed of sale" is  literally  construed, it would be unusual.  But  in  the context,  all  that it seems to mean is that  the  sale-deed would  be  executed in the same terms as  the  agreement  of sale.  It seems to us. unreasonable, to suggest that because this  particular  part of the clause is  somewhat  unusually worded, the court should draw the inference that the  senior Mr.  Choudhary  could not have dictated it  and,  the  whole story about the draft is false.  The same comment has to  be made in respect of the other clause 730 on  which the argument is based.  This clause provides  that "if  the claiment does not get the saledeed executed by  me, the  executant, within the due date or he does not  pay  the remaining  consideration  money  at  proper  time,  1,   the executant,  shall  be  competent to  realise  the  remaining consideration  money in proper manner from the claiment  and shall forfeit the earnest money".  This again is an  unusual provision.   But  it cannot sustain the  argument  that  the story   about  the  draft  having  been  directed   by   Mr. Choudhary’is  untrue.  That fact will have to be decided  in the  light of the oral evidence adduced by the appellant  to show  that the draft was in fact dictated by the senior  Mr. Choudhary.  Therefore, we do not think that the two  clauses on  which Mr. Sastri relies can justify the  exclusion  that the story about the draft is a fiction. Mr.  Sastri  then  contends  it is  very  unusual  that  Re. 10,000/-  should  have been paid as earnest money  when  the total  price  for the property was Rs. 14,000/-.   But  this circumstance is explained if the recital in document is true that  the  respondent  wanted  Rs.  12,000/-  urgently   for purchasing an ice-cream machine.  That is the representation which  the  respondent made to the appellant and  since  the parties knew each other very well and had confidence in each other,  the  appellant  agreed to pay Rs.  10,000/-  to  the respondent.   That  by  itself  cannot  be  said  to  be   a suspicious  circumstance at all.  Then, it is urged that  it

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is very difficult to believe that the appellant should  have been in possesion of Rs. 10,000/- in cash.  The argument  is that such a large amount would normally be kept in the bank: In our opinion, this contention is inconclusive.  It depends on the habits of the person concerned and the fact that  the appellant  kept Re. 10.000/- in his house cannot by  itself, be  treated as a suspicious circumstance.   Similarly-,  the failure of the appellant to examine 731 the document of title of the respondent is of no consequence because  the appellant know that the respondent was  staying in that house for several years and his father used to  stay in  that house and so, there could have been  no  difficulty about assuming that the respondent hads title to the  house. It  has  also  been  urged  that  if  the  story  about  the negotiations  and the draft was true, the  appellant  should have  examined  his  father and his Manager.   There  is  no substance  in this argument.  On the day when the  agreement was entered into the appellant’s father had gone to  Lucknow and  if appellant is taking the oath in support of his  case and he knows all the relevant facts which have to be  proved in this case, there is no reason why his father should  have stopped into the box or his manager. The  last contention which is seriously passed before us  by Mr.  Sastri is in regard to the value of the property.   Mr. Sastri argues that if the value of the property is not  less than Rs. 30,000/- as has been found by the High Court,  that would be a very significant fact to bear in mind in  dealing with the question about the genuineness of the agreement  of sale.  It may be conceded that if the value of the  property is found to be as much as Rs. 30,000/that no doubt, would be a  factor in favour of the respondents theory that he  could not have agreed and, in fact, did agree to sell his house to the  appellant as alleged by him.  The respondent sought  to prove  value  of  his house by examining  Karim  Bux.   This witness who has not read in any school or college, claims to have  worked  as  an estimator in the P. W. D.  He  has  now retired  from service.  He produced a statement showing  the value of the property.  The statement estimated the cost  of construction  of the house at Rs. 29,358/- and the value  of the  land  on which the house stands at  Rs.  33,900/-.   It appears that this witness prepared his report two 132 days  before he was examined and he was summoned on the  day on which he gave his evidence.  He admitted that he did  not examine any witness or consult sale deeds of any  contiguous properties, nor did he examine the foundation of the pliinth of the house or see whether the plinth was underground.  The number  of bricks and their quality has not been  considered by  him.  The value of the wood works has been  specifically mentioned  by  him.  He has not given the value  of  cement, mortar  and  lime separately.  He did not even  enquire  for how.  much the house. had been purchased by  the  respondent and  how much he had spent on its improvements.  It is  true that on this evidence, the High Court has made a fiding that the  value of the property cannot be less than  Rs.30,000/-. We are unable to see how any finding can be reasonably  made about  the  value of the property on the evidence  given  by Karim Bux.  Having regard to the extent of the land on which the house stands, and hearing in mind that the land, and the house  are  situated in the Tehsil place of  Sitamarhi,  the value  of the. land estimated at Rs.33,900/-  is  completely fantastic, and it is impossible to consider the evidence  of this  witness with any seriousness.  One has merely to  read the,  answers  given by him in his cross-examination  to  be

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satisfied that this witness knows very little about the  job of valuing properties and has taken so steps to do that  job carefully  at  all.   Therefore, we do not  think  that  the evidence ,of Karim Bux can be used for the purpose of deter. mining the value of the property. In this connection, it is relevant to refer to the  evidence given  by the respondent himself.  It is admitted  that  the house  was  purchased  by the respondent’s  father  for  Rs. 300/-.  He however, urged that he began to improve the house in  1939  and that the front portion was completed  about  9 year before  733 1953 and inner portion about 3 years before.  He stated that he  had spent about Rs. 30,000/- in all and so,  he  claimed that  if  the  house had been sold in 1950,  it  would  have fetched  more  than R, 60,000/-.  Since he claimed  to  have made  substantial  improvements, he  was  cross-examined  at length  about  these  improvements.   It  appears  from  his evidence that in 1942 he had to borrow Rs. 500/and for  that purpose he had to mortgage the land belonging to him.  He is a  book-binder by profession and from his evidence, it  does not  appear that he could have such large resources  at  his disposal.  Though the construction work went on for  several years, he maintained no  accounts  about  the  construction, nor was he     able  to produce any paper to show  that  Rs. 30,000/- were with him and had been spent by him  for    the work  of  construction.   He did not  take  any  permit  for cement,  because  he said that he had purchased  the  cement before the permit system was introduced from several  shops. Realising  that it was a tall claim, he modified his  answer by saying that he did not purchase any cement but his  mason did.  Mortar was purchased by him from the shop of one Meghu Mal.  He did not know much how amount he spent in purchasing it.  Bricks he purchased from several persons and paid  them the  price,  but no receipts were with him.  Then  he  added that  he did not himself purchase the bricks, and  suggested that  about Rs. 9,000/- may have been paid as the  price  of the bricks.  It would thus be seen that the statements  made by  this witness do not appear to be credible and the  claim made  by him that the construction work of the house  spread over  several years and that he spent Rs. 30,000/-  for  the improvements,  cannot, therefore, be accepted as true.   In- our  opinion,  on the material as it stands,  there  was  no justification  for  the  High Court  to  have  reversed  the finding of the trial Court about the value of the  property, Therefore, the arguments 734 that  the  value of the property was Rs. 30,000/-  and  that negatives  the version about the agreement of sale, must  be rejected. On  the other hand, there are some other broad  features  of the case which support the appellant’s  version.  It appears that  the appellant’s father holds a position or status  and reputation  in  sitamarhi.   He  was  the  Chairman  of  the sitamarhi Municipality for some years and the respondent has admitted   that  his  father  who  was  a  doctor  and   the appellant’s  father  who its  Vaidya were  friends  and that between  the families, good relations subsisted.   In  fact, according  to  the  respondent, the  apellant’s  father  was looking after his case which was started between him and his father  Muzaffaruddin.  Now, it seems difficult  to  believe that  if the relations between the parties were cordial  and they stayed in houses opposite to each other, the  appellant should  have suddenly thought of bringing into  existence  a forged   document   for  the  purpose  of   purchasing   the

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respondent’s  house.  Prima facie, the suggestion  that  the appellant  has  succeeded in obtaining the help  of  several persons to carry out the purpose of this conspiracy does not sound reasonable or proper.  If the evidence adduced by  the appellant turns out to be extremely unsatisfactory,, and  on a fair appreciation it seems to justify the conclusion  that the witnesses have perjured themselves, then, of course,  it would  be  open to a court to hold that the  witnesses  have entered  into a conspiracy.  But such a conclusion  must  be reached  only where the character of the evidence  given  by the witnesses appears to be so completely unsatisfactory  as to  lead  to the conclusion that it is false  and  has  been given  to  serve the object of the conspiracy.  As  we  will presently  point out, the evidence adduced by the  appellant does  not  appear  to us to  justify  any  such  conclusion. Therefore,  if the theory of conspiracy is rejected  and  we reject it Without any                             735 hesitation, then the fact that three attesting witnesses and the  scribe  have supported the appellant’s  case  and  tile young  lawyer Mr. Choudhary has proved the draft, goes  very much in favour of the appellant.  That is the view taken  by the  trial  Court and in our opinion, the  trial  Court  was right. There  is another factor on which the appellant is  entitled to  rely and that is the intrinsic evidence of the  document itself.  We have looked at the document ourselves and we are satisfied  that there is no trace of any attempt to  squeeze the  contents  of  the document on  the  stamp  paper.   The writing  of  the  document appears to  be  natural  and  the endorsement made by the respondent acknowledging receipt  of Rs.   10,000/-   shows  no  suspicious  features   at   all. Therefore, the appearance of the document and the  intrinsic evidence supplied by the manner in which it is written,  are factors which are in favour of the appellant. There  is  one  more circumstance  on  which  the  Solicitor General  for  the appellant has very  strongly  relied.   He contends  that  if he can demonstrate that  the  arbitration story  set  up by the respondent in support of  his  version that a stamp paper was given to the appellant with his thumb marks for the purpose of endorsing the arbitration agreement and it has been fraudulently used by him for the purpose  of the  suit  agreement  is  false,  then  the  conclusion   is inescapable that the agreement is genuine and has been  duly executed  by the respondent.  It would be recalled that  the respondent’s version in this matter is that at the  relevant time,  two  suits were pending between him and  Ramzan  Ali. Ramzan  Ali  was his tenant and he had sued Ramzan  Ali  for rent and Ramzan Ali ’had sued in the Rent Controller’s Court for  the fixation of standard rent.  According to  him,  the dispute between him and Ramzan Ali was referred to 736 the  appellant  for his arbitration and in  that  connection stamps  were  purchased  on the 15th  of  May.   Three  days thereafter, the appellant told him that the said stamps  had been  lost  and so, stamp were purchased again on  the  18th May.   Thus, the purchase of the stamps on the 18th  May  is admitted  by  the  respondent, but it is  explained  on  the ground that he purchased the said stamps because he was told by the appellant that the stamps earlier purchased had  been lost.  It would thus be seen that the purchase of the stamps on  the  15th  May plays an important part  in  proving  the version  of the respondent.  According to him, these  stamps were  purchased from Raghubir Prasad at Dumra Katchery.   It would  have  been very easy for the  respondent  to  examine

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Raghubir  Prasad to prove the said fact of purchase  on  the 15th  May.   He was asked whether he was  going  to  examine Raghubir  Prasad  and  he stated "1 cannot say  if  I  would examine  Raghubir Prasad, Stamp-vendor".  Thus, the  failure of  the respondent to examine Raghubir Prasad to  prove  the alleged  purchase  of stamps from him cannot be  ignored  in deciding  the  question as to whether the  story  about  the arbitration agreement is true or not.  Incidentally, it  may be added that the respondent was asked whether he was in the habit of taking the plea that he had put his thumb marks  on a  blank paper which had been fraudulently used for  another purpose against him.  He indignantly denied the  suggestion. But a document was produced which shows that in a Money Suit No. 129 of 1947 brought by Sahdeo against the respondent, he had taken a similar plea and had urged that the thumb put by him on the blank paper had been fraudulently used by Sahdeo. Thus,  this  is not the first time that  the  respondent  is taking such a plea in litigation. There  are two other circumstances which must be  considered in dealing with this matter.  The                             737 Rent  Suit filed by the respondent against Ramzan  Ali  (No. 103  of  1950)  was dismissed on 15th May.   No  doubt,  the respondent says that he got the suit dismissed on the advice of the appellant.  But if the suit was got dismissed because Ramzan  Ali  and the respondent,has agreed  to  refer  their dispute  to  the appellant for his  arbitration,  one  would expect that fact to be mentioned to the court and Ramzan Ali would,  have  endorsed at fact.  Nothing of  the  kind  was, however, done and it appears to be a clear case of dismissal of the suit for default. What  has happened in Ramzan Ali’s suit (No. 9 of 1950)  ’is still more Significant.  In that suit, the respondent appled on  May  31,  1950,  that he  wanted’  to  adduce  oral  and documentary  evidence and that the case may be adjourned  to some  other  date.   This prayer was granted  and  time  was allowed  till the 23rd June, 1950.  Now if the  dispute  was referred  to arbitration, it was hardly necessary  ’for  the respondent to lead any evidence in that suit.  All that  the parties had to do was to tell, the court that the suit  need not  be  proceeded with because the matter  in  dispute  was being  adjudicated upon by the arbitrator of  their  choice. This  conduct of the respondent on May 31, 1960,  is  wholly inconsistent  with  his theory that the appellant  had  been asked  to  arbitrate on the dispute between him  and  Ramzan Ali. Besides,  if the story about the arbitration had been  true, the  respondent  could have easily examined  Ramzan  Ali  to support  his version.  When he was asked whether Ramzan  Ali had put his thumb mark on the at-amp paper which  is-alleged to have been given to the appellant to engross an agreement, the  respondent  said  that he did not know and  by  way  of explanation, he added that he could not know because he  was not on speaking terms with him at that Time.  He also stated 738 that  he was not on speaking terms with him on the day  when he gave evidence and so, he had not enquired if. he had  put his  thumb mark on the stamp paper or not.  Later on,  under stress  of  cross-examination, he admitted that  he  was  on talking  terms with Ramzan Ali since 1951, that he  was  not his tenant any longer but. his brother was, and yet,  Ramzan Ali  had  not been examined by the respondent to  prove  his case about arbitration.  Therefore,, it seems to us that the solicitor-General  is  justified  in  contending  that   the relevant evidence bearing on the point clealy shows that the

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story about the arbitration agreement is untrue, and if that is so, it follows that the stamp papers which were purchased on  the  18th May were not purchased because  the  appellant told  the respondent that the earlier stamp papers had  been lost, but they were’ purchased for a purpose other than  the alleged purpose of arbitration.  On the record. there is  no suggestion  that there could have been any purpose  for  the purchase  of these stamps other than the one set out by  the appellant.  Therefore, considering the broad features of the case on which the learned Counsel for the respective parties relied  before us, it  appears that these features  are  not inconsistent with the appellants case, but are  inconsistent with the version set out by the respondent. We  will  now examine the evidence on  which  the  appellant relies.   First  is the Stamp-vendor Harikant Jha.   He  has deposed  to the purchase of two stamps on the 18th May,  one for  Rs.  1/8/-  and the other for  As./12/-.  There  is  an endorsement  made by him showing the sale of  these  stamps. It  is  true  that  the respondent has  not  signed  in  the register  or  on the back of the stamp, but  that  makes  no difference  because  the  purchase of the  stamps  from  the witness  is admitted by the respondent and is no  longer  in dispute.  Since we have held  739 that  the  story  about the arbitration  is  untrue,  it  is unnecessary to consider whether the word ’"Mahadnama"  which means an agreement, meant an agreement of arbitration or  an agreement. of sale.  The arbitration agreement being out  of the  way,  the  only agreement for  which  the  stamps  were purchased must be the agreement of sale. Ganesh  Thakur attested the execution of the  document.   He resides  in  Mauza Riga which is at a distance  of  about  6 miles  from Sitamarhi.  He has deposed to the fact  that  he used  to go to the appellant’s father’s shop for  purchasing medicines and on that occasion he purchased Raspipri.  It is not  disputed that the appellant’s father runs a shop  where Ayurvedic  medicines are sold.  He admitted  that  Raspipris are available in grocer’s shop but they are not reliable and he preferred to purchase them from a big medicine shop, such as that of the appellant’s father.  When he went to purchase the medicine, he found that the document was being executed. So,  he  stayed  on, attested the  document,  purchased  the medicine and left the place.  This witness is not related to the appellant and is not shown to be hostile to the  respon- dent  either.  He is a disinterested person who went to  the appellant’s  father’s shop to purchase the medicine  in  the ordinary  course,  and  he  swears  that  he  attested   the document.   He  has  also referred to  the  writing  of  the document  by Khakhan Singh and its attestation by two  other witnesses.   The  criticism against this witness  which  has been accepted by the High Court is that he walked six  miles to  purchase  the medicine which is not likely and  that  he waited for some time until the document was completed  which is  improbable  We are not impressed by this criticism.   In considering the question as to whether evidence given by the witness should be accepted or not the court has, Up 740 doubt,  to  examine  whether the witness  is  an  interested witness  and to enquire whether the story deposed to by  him is  probable  and  whether  it has  been  shaken  in  cross- examination.  Now, a person in the position of Ganesh Thakur who stated that he used to go to the shop of the appellant’s father to purchase the medicine because it was a big  store, cannot  be blamed for having walked a distance of six  miles to  purchase  Raspipri on that day.  Therefore,  we  see  no

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reason to treat this witness as unreliable. The  next  attesting witness is Jamuna Singh.  He  stays  at Mauza Manora and works as a teacher.  He had given a book to the  respondent for binding and on that day, he had gone  to the respondent’s shop to take the book back.  The respondent was  not in his shop and so, he waited in the shop for  some time.   On  seeing  the  respondent  at  the  shop  of   the appellant,  he walked over there.  He saw the  execution  of the  document,  attested  it  and  then  went  back  to  the respondent’s shop and took the book from him before he  left for  his peace, This witness has been  cross-examined  about his qualifications as a teacher.  But having considered  all the  answers  given by him in cross-examination, we  do  not set- any reason why he should be treated as unreliable.   No doubt,  it  was  suggested  to him that  he  may  have  been appointed as a teacher during the time when the, appellant’s father  was elected as Chairman of the Municipalty,  but  he denied  it, and yet, the High Court appeare to have  assumed that the suggestion was proved and has treated as one reason for disbelieving him.  It is hardly necessary to add that it would  he unsafe to discard the evidence of a witness  which appears  otherwise  to be reasonable  and  probable,  merely because  some  suggestions were made to him,  without  those suggestions being proved to be true,  741 That  takes us to the evidence of Bihari Lal Saraogi.   This witness  has  attested the document and has stated  that  he went to attest the document because the respondent asked him to  do go. it appears that this witness had a  pharmacy  and stationery shop to the west of the house in question at  the relevant  time.   Since  then$ however, he  has  shifted  to Sursand.   He was carrying on his business at Sitamarhi  for about   three  years.   According  to  this   witness,   the respondent  had requested him to negotiate.the sale  of  his ’house  with the appellant’s father and accordingly, in  the first  stage  of the negotiations, this witness  helped  the parties.   Now, this witness was asked whether he  paid  any income-tax  or  sales-tax for his dealings in the  shop  and when  he  answered  in the,nageative,  that  has  been  used against him for the purpose of showing that he never  stayed in  Sitamarhi.   Like  the two  other  attesting  witnesses, Bihari Lal also does not appear to be interested and We  see ’no reason to disbelieve his evidence. The  scribe,  Khakhan Singh, has supported  the  appellant’s case  both  in  regard  to  the  making  of  the  draft  and engrossing the draft as a fair copy on the stamp paper.  The main  point  which is made against him is that  he  did  not remember who drew the four lines in the execution portion of the  document over the head of the writing showing that  the respondent had received Rs. 16,000/- We see no substance  in the criticism made against this witness as a result of  this statement.  We have seen the four lines ourselves and we see nothing  auspicious  about those lines.  Some  persons  draw lines before they write and some do not, and when lines  are drawn, one line may be longer than the other, These are  all matters  of individual mannerism’ and no serious, point  can be  made  on  the statement of the  soribe  because,  having looked at the’lines in relation to 742 the  thumb marks made by the respondent, they do not  appear to be suspicious at all. The appellant has examined himself and he has supported  his case.  He was also asked whether he and his father kept  any books  of  account  or diaries, or  whether  there  was  any documentary  evidence  to show that he had Rs.  10,000/-  in

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hand  and  that  he had paid them to  the  respondent.   The witness  admitted  that  no  diary was  kept,  nor  was  any account-book kept.  This is the type of answer given by most of the witnesses in. this case when they were examined about their books of account.  But the failure to keep an  account book, or produce it if one is kept, cannot necessarily  lead to  the inference that the whole of the story deposed to  by the witness is for that reason alone untrustworthy.  In  the present case, we have seen that the stamp paper bearing  the thumb   marks  of  the  respondent  was  purchased  by   the respondent, and as we have already emphasised the respondent has not been able to show why it was purchased if it was not for the agreement of sale.  He set out an alternative theory about the arbitration which we have rejected.  It is in  the light of this important circumstance that the oral  evidence has  to be appreciated.  Thus considered, we see  no  reason why   the  High  Court  should  have  interfered  with   the conclusions  reached by the trial court  after  appreciating the oral evidence led by the appellant before it. That leaves the evidence of the young lawyer Choudhary to be considered.  Mr. Choudhary has deposed to the fact that  the draft was dictated by his father, was taken down by  Khakhan Singb  and  the said draft has been produced  by  him.   The draft  and  the suit agreement tally.  It appears  that  Mr. Choudhary went to the house of the respondent alongwith  the appellant to serve notice on him and 743 that  has been very severely criticised by the  High  Court. Mr.  Choudhary stated that he did not keep any diary or  any account  book, and that again has been  adversely  commented upon  by  the  High Court.  But the  main  point  about  the evidence  of Mr. Choudhary is that he had nu reason to  take the  false oath, and the story deposed to by him as  to  the making  of the draft sounds natural and probable.  The  High Court has even suggested that this young lawyer has perjured himself  ",because of the glamour of the Ex-Chairman of  the Sitamarhi Municipality and perhaps also the prospects of his support  in future proved so alluring to him that he had  no sense of balance left and laid himself open to any statement which may have been thought necessary to be got through  his mouth for the success of the appellant and that without  any scruple  either for the ethics of the profession or for  the sanctity  of  truth."  We  have  carefully  considered   the evidence  of this young lawyer and we agree with  the  trial Court that the story deposed to by him is true and straight- forward.  Thus, the position is that the evidence led by the appellant  satisfactorily proves the purchase of the  stamps which   bore  the  thumb  marks  of  the   respondent,   the preparation of the draft and the engrossment of the draft on a  stamp  paper  by  the  scribe  Khakhan  Singh,  and   its attestation  by the three attesting witnesses.  That is  why we  feel no difficulty in holding that the trial  Court  was right  in coming to the conclusion that the  suit  agreement was genuine and valid and is supported by consideration.  In our opinion, the High Court was not justified in interfering with this conclusion in appeal. We  have so far not considered the evidence of the  experts. Mr.   Bennett  examined  by  the  appellant   supports   the appellant’s  case,  whereas Nasrat Hussain examined  by  the respondent supports 744 his  case.  Evidence given by experts of handwriting  can  . never  be  conclusive, because  it is,  after  all,  opinion evidence.   Since  we have come to the conclusion  that  the evidence given by the attesting witnesses and the scribe and

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the  appellant is wholly satisfactory, that evidence  proves the execution of the document by the respondent and the said evidence  does  not really need to be  corroborated  by  the opinion  of experts, Even so, Mr. Bennett does  support  the appellant’s case, and though Mr. Nasrat Hussain supports the respondent’s   case,   it  is  significant   that   he   has categorically admitted that what purports to be the  writing of  the  respondent is simulated forgery.   The  writing  in question purports to acknowledge the receipt of Rs. 10,000/- ;  the  appellant  says  that  it  is  the  writing  of  the respondent,  whereas  the  respondent contends  that  it  is forgery.    The  respondent’s  expert  calls  it   simulated forgery.   After  the  respondent’s  expert  described   the writing  as,  simulated  forgery, he was  asked  a  specific question  as  to  whether  it  would  be  possible  to  have simulated forgery where there was no model before the forger of  the  respondent’s  writing, and  the  expert  definitely stated that it would not be possible to bring out  simulated forgery without the model of the respondent’s writing.  This answer  clearly,  means  that the appellant or  any  of  his alleged  accomplices  should have been in  possession  of  a model writing of the respondent, and on this point, not even a  suggestion has been made to the appellant that he was  in possession  of  any writing of the  respondent.   That  only shows  that the expert evidence given by Mr. Nasrat  Hussain does not really help the respondent’s case. Before  we  part with this appeal, it is necessary  that  we should  make some observations, about the approach  adopted’ by the High Court in dealing 745 with  the judgment of the trial court which was  in  ,appeal before  it.   In several places the High Court,  has  passed severe  strictures  against  the trial  Court  and  has,  in substance,  suggested that the decision of the  trial  Court was   not  only  perverse  but  was  based   on   extraneous considerations.   It  has  observed that  the  mind  of  the learned  Subordinate Judge was already loaded with  bias  in favour   of  the  plaintiff  and  that  the  plaintiff   had calculated  that  each of the evidence an he  would  produce ,,along  ’with the pull and weight that would  be  harnessed from  behind  would  be sufficient to  carry  him  through." Similarly, in criticising the trial Court for accepting  the evidence  of Jamans Singh, the High Court has observed  that the  presumption made by the trial Court that teacher, as  a rule,   In   a  respectable  person,  ,is  not   any   legal appreciation  of  the evidence but a way found to  suit  the convenience of the court for holding in favour of the  plai- ntiff".   It  would  thus  be seen  that  in  reversing  the decision  of  the trial Court the High Court  has  suggested that   the   trial  Court  was  persuaded   by   ,extraneous considerations  and that some pull and weight had been  used in favour of the appellant from behind.  We are  constrained to observe that the High Court was not justified in  passing these strictures against the trial Judge in dealing with the present,   case.    Judicial  experience   shows   that   in adjudicating upon the rival claims brought before the courts it is not always easy to decide where truth lies.   Evidence is  adduced  by the respective parties in support  of  their conflicting  contentions  and  circumstances  are  similarly pressed into service. In such  a case, it is, no doubt,  the duty  of  the Judge to cover the  evidence  objectively  and dispassionately,  examine it in the light  of  probabilities and decide which way the truth lies.  The impression  formed by  the  Judge  about the character  of  the  evidence  will ultimately determine the conclusion

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746 which  he reaches.  But it would be unsafe to  overlook  the fact  that all judicial minds may not react in the same  way to  the  said evidence and it is not unusual  that  evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to  another Judge.   That  explains why in some cases courts  of  appeal reverse conclusions of facts recorded by the trial Court  on its  appreciation  of  oral evidence.   The  knowledge  that another view is possible on the evidence adduced in a  case, acts as a sobering factor and leads to the use of  temperate language   in  recording  judicial  conclusions.    Judicial approach  in  such  cases  whould always  be  based  on  the consciousness  that one may make a mistake; that is why  the use of unduly strong words in,expressing conclusions, or the adoption  of  unduly  strong  intemperate,  or   extravagant criticism against the contrary views which are often founded on  a sense of infallibility should always be  avoided.   In the  present  case,  the High  Court  has  used  intemperate language  and  has even gone to the length of  suggesting  a corrupt  motive  against the Judge who decided the  suit  in favour  of the appellant.  In our opinion, the use  of  such intemperate language may, in some cases, tend to show either a  look of experience in Judicial matters or an  absence  of judicial  poise and balance.  We have  carefully  considered all  the  evidence to which our attention was drawn  by  the learned counsel on both the sides and we are satisfied  that the   amputations  made  by  the  High  Court  against   the impartiality and the objectivity of the approach adopted  by the trial judge are wholly unjustified.  It is very much  to be  regretted  that  the High Court  should  have  persuaded itself  to use such extravagant language in criticising  the trial  Court,,  particularly  when  our  conclusion  in  the present apeal shows that the trial Court. was right and  the High Court was, wrong.  But even if we had not upheld 747 the findings of the trial Court, we would not have  approved of  the unbalanced criticism made by the High Court  against the:  trial  Court.   No doubt, if it  is  shown  that,  the decision of the trial Court in a given case is a result of a corrupt motive, the High Court must condemn it and must take due  further  steps in the matter.  But the  use  of  strong language  and  imputation of corrupt motives should  not  be made  lightheartedly  because  the Judge  against  whom  the imputations  are made has no remedy in law to, indicate  his position. What  we have said about the extravagant criticism  made  by the High Court against the trial Judge needs to: be repeated in  respect  of  similar criticism made by  the  High  Court against  some of the witnesses examined in the case.   There is no doubt that judicial administration should be fearless; judges  must have full freedom to express their  conclusions in  respect  of the evidence given by the  witnesses  before them  without any favour or fear; and so, judicial power  to express  its appreciation about oral evidence is very  wide. But the very width of the said power must inevitably  impose some  healthy  restraints  upon  its  exercise.   Take,  for instance,  the criticism made by the High Court against  the young lawyer Mr. Choudhary.  In our opinion, that  criticism is  wholly unjustified.  It is conceivable that in  a  given case,  a court of facts may come to the conclusion that  all the witnesses who have supported one party have conspired to give  false  evidence, and in such a case,  the  court  must unhesitatingly record it a conclusion to that effect.   But, before  such a conclusion is reached, all the pros and  cons

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must   be   carefully  and  scrupulously  examined   and   a conscientious  effort  must  always be made  not  to  regard evidence  which appears to be unreasonable or improbable  as being false and prejured.  We have 748 noticed  that  the  judgment  of the  High  Court  showed  a tendency  to  regard every witness whose evidence  the  High Court  did  not feel inclined to accept as  a  perjuror  and conspirator.   This  approach again may tend to  show,  with respect,  either lack of experience or absence  of  judicial poise  and balance.  It is became the judgment of  the  High Court showed these glaring infirmities that Mr. Bastri  told us  at the very outset that in the present appeal, all  that he  proposed to do was to defend the respondent but not  the judgment  of the High Court what has been pronounced in  his favour. The  result is, the appeal is allowed, the decree passed  by the  High  Court is set aside and that of  the  trial  Court restored with costs throughout. Appeal Allowed. 749