Ratan Sarkar - Appellant @HASH Surajit Lahiri

Jyotirmay Bhattacharya, J. - This first miscellaneous appeal is directed against an order of remand dated 30th November, 2015 passed by the learned Additional District Judge, 7th Court, Alipore in Money Appeal No. 4 of 2011 reversing the judgement and decree dated 23rd March, 2011 passed by the learned Civil Judge (Senior Division), 7th Court, Alipore in Money Suit No. 50 of 2006 at the instance of the defendant/appellant.

Let us now consider as to whether the instant appeal has any merit for its admission under the provision of Order 41, Rule 11 of the Code of Civil Procedure or not.

The plaintiff filed a suit for recovery of money against the defendant. According to the plaintiff, the plaintiff lent some amount of money to the defendant by issuing two account payee cheques. The plaintiff claims that money which was paid by those two account payee cheques were independent of the transaction which the plaintiff entered into with Vishal Graphic Pvt. Ltd. for purchasing a flat in the building constructed by the said Company. The defendant is the Director of the said Company. Since the said loan amount has not been repaid by the defendant, the plaintiff filed suit for recovery of money together with interest.

The defendant appeared in the said suit and contested the same by filing written statement. He denied the loan transaction alleged to have been made between the plaintiff and the defendant. He claimed that the said amount was paid to the Vishal Graphic Pvt. Ltd. towards the cost incurred by the said Company for the extra work which had been done in the flat purchased by the plaintiff from the said Company. The defendant thus disputed the loan transaction and prayed for dismissal of the suit.

The parties led evidence in support of their respective claims. It appears that one of those two cheques was issued in favour of the defendant. However, the defendant''s name was scored out and the name of the Company viz. Vishal Graphic Pvt. Ltd. was incorporated therein. Such alteration was also ratified by the signature made by the plaintiff.

The learned Trial Judge held that since the cheque was issued in favour of the Company, the Company was a necessary party in the suit. Since the Company was not impleaded as party in the suit, the suit, according to the learned Trial Judge, was not maintainable for non-joinder of necessary party. The learned Trial Judge also compared the signature of the plaintiff appearing on the photostat copy of the cheque with his admitted signature and came to the conclusion that the alteration made in the cheque was duly ratified by the plaintiff. Thus, the learned Trial Judge came to the conclusion that the said payment was not made to the defendant as claimed by him in the plaint. The learned Trial Judge held that such payment was made to the Company which has nothing to do with the alleged loan transaction. Accordingly, the learned Trial Judge dismissed the said suit.

Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned first Appellate Court. In connection with the said appeal, the plaintiff filed an application under Order 41, Rule 27 of the Code of Civil Procedure for bringing additional materials on record by way of additional evidence. Such step was taken by the appellant to substantiate his claim that the alteration which was made in the cheque was not made by the plaintiff himself. As a matter of fact, he wanted to bring on record the handwriting expert''s opinion which was submitted in connection with a criminal proceeding relating to the identical dispute between the parties.

The learned first Appellate Court held that when the signature of the plaintiff by way of ratification of the alteration in the cheque was disputed and the alteration of the cheque allegedly made by him was also disputed by the plaintiff, the learned Trial Judge ought not to have come to the conclusion about the alteration being made by the plaintiff without comparing the alteration part appearing in the original cheque with the admitted handwriting and/or signature of the plaintiff.

As a matter of fact, the learned Trial Judge came to the finding that such alteration was made by the plaintiff and such alteration was ratified by the plaintiff on the cheque by comparing the handwriting appearing on the photostat copy of the cheque with the admitted handwriting of the plaintiff. The learned first Appellate Court discarded this part of the finding of the learned Trial Judge by holding that though the court is authorised to come to a conclusion by way of comparison of two documents i.e. the disputed and the admitted document under Section 73 of the Evidence Act, but such comparison cannot be made by considering the photostat copy of the cheque on which neither the disputed signature of the plaintiff in original nor the alleged alteration in original appears.

The learned first Appellate Court after considering the appellant''s application under Order 41, Rule 27 of the Code of Civil Procedure held that for the purpose of pronouncement of the judgement and complete disposal of the issues involved in the suit, the application under Order 41, Rule 27 of the Code of Civil Procedure should be allowed as per the provision contained in Order 41, Rule 27 (1)(b) of the Code of Civil Procedure.

Accordingly, the judgement and decree passed by the learned Trial Judge was set aside and the matter was remanded back to the learned Trial Judge for fresh hearing as per the observations made by the learned Appeal Court as mentioned above.

After hearing the learned counsel appearing for the parties and after considering the materials on record including the order of remand, we do not find any apparent illegality in the order of remand as we are also of the view that when a dispute is raised of this nature, such dispute cannot be resolved by way of comparison of the admitted signature and/or handwriting of the author of such signature and his writing with the disputed photocopy of the handwriting and/or the disputed photocopy of the signature of the said author appearing on the photostat copy of the cheque. In our view, such dispute can only be resolved by the handwriting expert''s opinion who may submit his opinion after comparing the original writing and/or original signature of the plaintiff with his disputed signature and/or writing appearing on the original cheque which is in dispute.

Under such circumstances, we do not find any reasonable ground for interfering with the order impugned. We, thus, decline to admit this appeal for hearing under the provision of Order 41, Rule 11 of the Code of Civil Procedure. The appeal, thus, stands dismissed.

Re: CAN 2139 of 2016 (Injunction)

Since we have not admitted the appeal under the provision of Order 41, Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for injunction. The said application being CAN 2139 of 2016 is, thus, deemed to be disposed of.