# ISHWARI PRASAD MISHRA v. MOHAMMAD ISA

- **Citation:** [1963] 3 S.C.R. 722
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Civil Appeal No. 630 of 1960
- **Bench:** P. B. Gajendragadkar. K. C. Dab Gupta, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ishwari-prasad-mishra-v-mohammad-isa-2663
- **Pages:** 27

## Headnote

Appellate Oourt-Duty of the appellate Jutiges in dealing
with the Judgment of the lower court -Criticism of the trial JudY
or the witneases-Extravagant language to be avoided.
In a suit instituted by the appellant for the specific
performance of an agreement of sale executed by the respondent, the latter disputed the genuineness and validity of the
agreement and its considration. 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 cotJrt 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.
\I) (1958) S.C.R. 828.
•
•
3 S.C.R.
SUPREME COURT REPORTS
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 imputations made by the High Court against the
impartiality and the objectivity of the approach .adopted
by the trial Judge \\ere wholly unjustified.
Hel<l, 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.
Held, further, that the -High Court was, similarly, in
error iri its criticism of some the witnesses examindin 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.

## Text

_Characters 0–39,964 of 52,174. This is a partial read: ask again with offset=39964 for what follows._

Mada• C.p>I
v,
Stlll• ti PunJol
Shoh J.
722
SUPREME OOURT REPORTS [1003]
punitive action including dismissal or removal from
serviee if the appellant· was found to have committed
the misdemeanour charged against him. Such an
enquiry and order consequent upon the report made
in the enquiry will not fall within the principle of
Ram Narayan Das's case(').
The appeal is therefore allowed·and the order
passed by the High Court is set aside and the order
passed by Mr. Justice BishanNarain is restored with
costs in this Court and the High Court,
: Appeal allowed. ·
ISHWARI PRASAD MISHRA
v.
MOHAMMAD ISA
(P. B. GAJENDRAGADKAR. K. C. DAB GUPTA and
RAGHUBAR DAYAL, JJ,)
Appellate Oourt-Duty of the appellate Jutiges in dealing
with the Judgment of the lower court -Criticism of the trial JudY
or the witneases-Extravagant language to be avoided.
In a suit instituted by the appellant for the specific
performance of an agreement of sale executed by the respondent, the latter disputed the genuineness and validity of the
agreement and its considration. 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 cotJrt 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.
\I) (1958) S.C.R. 828.
•
•
3 S.C.R.
SUPREME COURT REPORTS
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 imputations made by the High Court against the
impartiality and the objectivity of the approach .adopted
by the trial Judge \\ere wholly unjustified.
Hel<l, 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.
Held, further, that the -High Court was, similarly, in
error iri its criticism of some the witnesses examindin 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.
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.
·
O. K. Daphtary, Bolictor·General of India,
L. K. Jha. Suhodh Kumar Jha and R. O. Prasad for
the appellant.
·
A. V •. Viswanatha Sastri. D. P. Singh, M. K.
Ramamurthi, R. K. Garg and 8. 0. Agarwal for the
respondent.
1962. August. 27. The Judgmenb. of the Coutt
was delivered by
·
GAJENDRAGADKAR, J.-The appellent 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-JudC1e .. '
lshwari Prtu•tl.
Mishra
v ••
MohmnmaJ Is«
Gajendra1adkar J,
1962
lJh'w'l:r i 8rarai '
MiJhr•
••
~Vahhmtncd ls•
724
SUPREME C~URT REPORTS (1963]
Muzeffarpur. By the Bitid agreement, the respondent had promised to execute a sale-deed in favour
of the appellant in respect 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
appellant's suit dismissed with costs throughout. It
is against ,this decree that the appellant has come to
this 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 whfoh the appellant's suit is based is genuine,
valid and for consideration.
'Ihe subject-matter of the agreement of sale
is a house belonging to the respondent. Accordini
to tbe appellant, at the time when the agreement
was executed, tht:l consideration for the transfer was
settled at Rs. 14,000/- out of which Rs. 10,000/·
were paid as earnest money. The agreement, had
stipulated that the sale-deed had to be executed
within three months from its date; in ()ther w-0rds,
under the agreement, the respondent was bound to
execute the sale-cleed,on or before 'tho 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 performanoe of the said agreement,
· -.
·
The appellant's case is that negotiations ,for
the sale of the respondent's house had oommenoed
3 s.c.R:
SUPREME COURT REPORTS
'725
on the 3rd ~hy, 1950, between the father of the
appellant and 'the respondent at the instance of
Bihari L:i,l Singh who acted as a negotiator. The
respondent then claimed Rs. 20,000/- as the price of
the house and the appellant's father was prepared
tq pay only Rs. 10,000/-. On the 8th of May,1950
the parties met again when the appellant raised his
ll:ffer-to Rs. 13,000/-, but the respondent refused to
go below Rs, 15,000/-. At last on the 18th May,
1950, the respondent went to the appellant and
11aid tha.t he was willing to sell the house ·for Rs.
'14,000/-. The appellant was the'n told by the respondent that he was anxious to purchase an lcecrea.m machine which was likely to cost Rs 12,000/-,
a.nd so, he wanted the argeement to be made that
·very day. Both of them then went to ~a.bu Amar
Choudhary, a senior lawyer of the place at -a.bout 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 aud he dictated the draft of the agree-
. ment in the presence of his son who was also a lawyer. Tne draft was taken down by Kha.khan
Singh. After the draft was thus completed~· _the
appellant, the re11pondent and the scribe went to the
'house of the appellant. At this place Kha.khan -
Singh (P.W.11) scribe copied the draft fair on a
stamp paper which had already been purchased in
fjhe morning that day. After the draft was thus
copied .on.a stamp paper, the 11.ppellant 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 !::iingh (P.W. 8) and Bihari Lal
Saraogi (P.W.l:l). That, in brief, is the case set up
by the appellant in suport of h;s claim for specific
performance.
'ldutar i ·J>r111sad
.-Jl-jshra
·•·
_ Mohamma4 /1111
Gajendragadka_r J.
1961
/shwari Pra11tl
Mtshra
v.
Mthammod.lsa .
OujmJ,agadkar J,
726 SUPREME OOURT REPORTS (1963)
The respondent, howover, denied the appellant's claim in toto. He suggested that though the
agreei;nent 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 bearing 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 hl\d made
fraudulent use of the stamp paper entrusted to him
by the respondent for a dilferent purpose and had
brought into existence a forged document on which
the present suit was based. The reRpondent also
denied that he had received Rs. I0,000/- or that he
wanted to purchase an Ioe·oream machine. He urged
that the value of the house which was the subjectmatter 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 case, 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.10), 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 ·ail an
a.britrator in connection with whiob a stamp paper
bearing bis thumb marks had been entrusted to the
'
3 S.O.R.
SUPREME OOURT REPORTS
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. handwr~ting expert to show that the impugned
ingro,ssment 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
wits unreliable and that the house in question was
not worth more than Rs. 14,000/-. He considered
the evidence led by the appPllant 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
passed 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 va.lu9 of the property inqluding the land can in no way be less than
. Rs. 30,000/-, and on examining the evidence adduc·
ed · 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
decument. 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
Ishwari Pr<U•'
Mishra
v.
.'II •h•mm•' 1111
Gajsndrazadkar J.
• ·1961
l•liwa:-1 PrasaJ
Mirhf"a
-'V.
Mtbammad 1s•
· · <J11jerJdratadka' J.
•
728
SUPREME COURT REPORTS [1963j
the :findings m&de by the High Court. In consequence the trial Court's decree was reversed and
the appellant's suit was dismissed. Thus, it would
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 nar:row compass -
did
the respondent execute the agreement of sale and has
·he received Rs. 10,000/· as earnest money under
it ? Incidentally. what can be said to be the proper
value. of tlie house which is the subject-matter of the
agreement ? These are the main points which fall to
,.be decided.
Before considerin~ the evidence adduciid by
the parties in the present proceedings, it would be
necessary to exa1J1ine some broad and general featu·
res of the case on whiqh 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,
"as a lawyer of status in Sitam&rhi 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 shoulli be rejected. We
are not impressed by this argument. Strictly spPaking
·we do not see how it was necessary for the appellant
to refer to the draft in his pleadings at all. Besides,
the stor:y about the draft is supported by all the
witnesses examined on the side of tho ·appellant,
including Mr. Ohoudhary's son, and unless we are
·inclined to disbelieve the·whole of that evidence, it
·would be impossible to accede to the argument that
-{
. the story about the draft is untrue. No doubt, .the
3S.C.R.
SUPREME COURT REPORTS
729
'r·
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 pl!liint by itself, we 9.o 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 bas 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
cJauses that the argument is based. The first out of
these two clauses provide that "if the respondent
does not execute 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 aforesiad 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 terma as
the agreement of sale. It seems to us unreasonable
to suggest that because this particular part ~f the
clause is somewhat unusually worded, the court
should draw the inference that the senior Mr. Chou-
!
dhary could not have dictated it and the whole
story about the draft is false. The same comment
has to be ma.de in respeot of tlie other clause
.1962 -
I1AU!Qri Pro1ad
Mifhra
'·
Mohammad Isa
Gojendra1adlt.ar J,
Jshw•ri Pf'osad
· Jliahra
v.
llollammad Isa
Gaief!iragadkar J.
73o
SUPREME COURT REPORTS [i963]
on which the argument is based. Thill clause provides that "if the claiment does not get the sale·
deed executed by me, the executant, within the due
date or he does not pay the remaining consideration
money at proper time, I, 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 ehow 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 Rs. 10,000/- should have been paid as earnest
money when the total price for the pro]Jerty was
Rs. 14,000/-. But this circumstance is explained
if the recital in document is true that the respon-
.•
dent wanted Rs. 12,000/- μrgently 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 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
Rs.
10.000/-
in his house cannot by itself,
.,,
be
trearted
as
a
suspicious
circumstance.
Similar!;)', the failure of the appellant to examine
3 S.d.R.
SuPREME COURT REPORTS
731
"" the
document of
title
of
the rt:ispondent
il!I
of
no consequence because the
appellant
know that the respondent was staying in that
house for several years ant.I. his father used to
stay in that house and so, there could have been no
difficulty about assuming that the respondent had a
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 examind 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
1 his father should have stopped into the box or his
manager.
The last contention which is seriously prassed
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 appe-
~ llant 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 1iervice. He
produced a statement showing the value of the property. The statement estimated the cost of cons-
>-tauction 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
1968
lsliwari Prasad
'Millira
v~
Mohammad tia
Gaiendragadkar J.
19ff
lsh"""J{£:::d
••
M ofiammad /•CJ
Gt1JenfrCV1aikar J,
,32
SUPREME COURT REPORTS fl963)
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 anil 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
pr,operty 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
<iross-e:immination to be 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 determining 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 pCll'tion was completed about_9 year before
--
•
~
3 S.C.R.
SUPREME COURT REPORTS
733
1953 and inner portion about 3 years before. He
stated 'that he had spent about Rs. 30,000/· in all,
and so, he cl11-imed 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 inprovements. It appears from
his evidence that in 1942 he had to borrw 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
apper
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 wa.s
"" 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 purchal'lingit. 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 brikcs, and suggested that
~ about Ra. 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 cfaim made by him that the
construction work of the house spread over se.veral
years and that he spent Rs. 30,000/- for the
improvements, cannot, there.fore, 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
t4e value of the property. Therefore, the argumen,~
1962
I 1hwi,ir i Brt,isad
' Jtithra
. v.
M ohfmmlld 1.sa
1962
I1Awari Prasad
Mtsh1a
v.
Mehcmmad Isa
734
SUPREME COURT REPORTS [1963]
that the value of the property was Rs. 30,000/- and
that negatives the version about the agreement of
sale, must be rejeoted.
.,,,
On the other hand, there are some other broad
featuers of the oase whioh support the appellant's
version. It appears
that the appellant's father
holds a position or status and reputation in
>-
sitamarhi. He was the Chairnan of the sitamathi
Municipality for some years, and the respondent
has admitted that his father who was a dootor and
the appellant's father who is a Vaidya were friends,
_
and that between the families, good relations su bsisted. 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 esoh other, the
appellant should have suddenly thought of bringing
into existence a forged document for the purpose
of purchasing the respondent's house. Prima facie,
the .suggestion that the appellant has suceeded iu
,.
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 extemely unsatisfactory, and on a fair appreciation it seems to justify
the conolusion 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 charaotar of the evidence given by
the witnesses appears to be so' completely unsatisfactory as to lead to the conclusion that it is false
and lias 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
' i:ejeoted
and we
reject
~t
without
any
'
'
3 S.C.R.
SUPREME COURT REPORTS
735
hesitation, then the fact that three attesting witnesses and the scribe have supported the appellant's
case and the 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 lo rely and that is the intrinsic evidence of
the document itself.
We have looked
at
the
document · ourselv.es
and we
are satisfied that
there is no trace of any attempt to squeeze
the contents of the docutnent 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 a,rbitration 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 a.nd 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 sue<l 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 referreq to
[shtJJ<Jri Prasail
Mishra
v.
Moham~ad [ia
Gajend.r'agal.kar J.
Jahw6f'i p,a$ad
Mishra
••
Mohammad Isa
Gajendragaclkar J.
•
· 736
SUPREME COURT REPORTS [1963]
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 s~amps on the 18th May is admitted by
the respondent, but it is explained on the ground
that he purchased the ~aid 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 Raghubir Prasad to prov!\
the said fact of purchase on the 15th May. He
was asked whether he was going to examine Raghubir Prasad and he stated "I cannot say if 1 would
examine Raghubir Prasad, Stamp-vendor". Thus,
the failure of the respondent to examine Raghubir
l'rasad 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 194 7 brought by sahdeo against the respondent, he had taken a similar plea and had urged
t,hat the thumb put by him on the blank paper had
been fraudulently used by Sahdeo. Thus, th\s is
not the first time that the respondent is taking such
a plea in litigation.
There are two other circumstances which must
pe considered in dealin~ with th~s matter. Thi!
3 S.C.R.
SUPREME COURT REPORTS
737
Rent Suit filed by the respondent against Ramzan
Ali (No. 103 of 1950) was.dismissed on 15th May.
No doubt, the respondent sav~ that he ~ot the suit
dimisaed on the advice of the appellant.· But if
the suit was got dismissed because .8amzan 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 that 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 versio~. When
he was ·asked whether Ramzan Ali had put his
thumb mark on the stamp 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
~eq~s with hiffi at t~at time.
~e also stateq
llJ6B
· lshwariPrasi:ld
Misliro
v.
Mohammad /aa
Gojefldragadka~ J.
1961
Lihw~ri PtOaod
.
Mi~"'hra
.
••
~.it/n:ammad Isa
738
~UPREME COURT REPORTS [1963)
that he was not on speaking terms with him
on the day when he gave evidence and so, he
had not Jnquired 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 solicitorGeneraf is justified in contending that the relevant
evidence bearing on the point clealy shows that the
sto:r:y about the arbitration agreement is untrue,
and if that is so, it follows t4at the stamp pap9rs
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 appellant's case, but are inconsistont with the version set out by the re~pondent. ·
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.l/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 lon~er in dispute,
Since we 4ave l\elc\
,>
3 S.C.R.
SUPREME COURT REPORTS
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. 'l'his witness is not related to the appellant and is not shown to be hostile to the respondent 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 waf'\completed which is improbable. We are
not impressed by this criticism. In considering the
question as to whether evidence given by the wit-.
ness sl10uld be accepted or not! the court has, QO
-~:o--.
lshwari,Pfils4i
'' 'JJi;8fir~ · "'
v.;
~~~ammftcl/~tfa
1~1
Ilf!wiJJi ;;ihiJIJ
.' Misft.ii.
v.
.
ifl··~-d'l~
740
SUPREME COURT REPORTS.[1963]
doubt, to examine whether the witness is an interested witness and to enquire whether the story de·
posed 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 reason to tre;i.t 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
b&ck to the respondent's shop and took the book
from him before he left for his place, This witness has been cross-examined about his· quaJifi.
cations as a teacher. But having considered all the
answers given by him in cross-examination, we do
not se? any reason why he should be treated as
unreliable. No doubt, it was suggested to him that
he may have bee·n 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 appears to have assumed
that the suggestion was proved and has treated as
one reason for disbelieving him. It is hardly necs-·
sary 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 m•1de to him, without those
suggestions being proved to. be true,
a S.d.R.
SUl?REME COURT REPoRTS,
"141
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 so. 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 Sit~ma.rhi 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 pealings in the shop
and when he answered in the nagative, 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, Kha.khan 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. 10,000/-. 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 n'othing suspicious about those
. lines. Some persons draw lines before they write
·and some do not, and when lines a.re drawn, one
line may be longer than the other, These are all
matters of indivi'.lual mannerism and no serious
point can be made on the statement of the scribe,
because, having looked at the lines in relation to
1961
-..J..
wal'i RrtUail
MflAra ·
•. v.
Moummila /.a
-
Illf!B
·
lah.wari 'it••satl
JLiilti<&
v~
M6hammod Isa
742
SUPREME COURT REPORTS [1963j
the thumb marks made by the respondent, they do
not appear to be suspicious at all.
The appellant has examined hims 0 lf 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 hand
and that he had paid them to the respondent. The
witness admitted that no diary was kept, nor was
any account-book kept.