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13. TO begin with it was urged that the lower appellate court committed an error of law in decreeing the suit in favour of the plaintiff as the holder in due course of the promissory note in suit against the third defendant in spite of its finding that the promissory note was a forgery; and that Order 41, Rule 33 of the Civil P. C. did not authorise the lower appellate court to pass a decree against the third defendant on a cause of action wholly different from that pleaded in the plaint and that too as if by way of punishing the third defendant for the offence of having forged the promissory note, It was urged in this connection that if the plaintiff and the third defendant were in collusion, as found by the lower appellate court, no decree could be passed in favour of one against the other. The suit as a whole was bound to fail and merited dismissal on the finding that the promissory note had been forged, in view of the finding of the lower appellate court that the plaintiff sought relief only on the basis of the promissory note and if that failed, it would not be open to him to fall back on the debt any longer. The lower appellate court has not arrived at a finding that the plaintiff was a holder in due course, It has instead made certain self contradictory observations. Having said that the plaintiff could succeed only on the basis of the promissory note and if that failed it would not be open to him to fall back on the debt, it observed that the trial court had found that the plaintiff had purchased litigation to wreak vengeance on his enemies liable on the pronote that it is not easy to understand that the holder in due course had any knowledge of circumstance that would affect the rights of the immediate party, nor is it easy to contest the non-payment of full value for the pronote by him and that the circumstance of the plaintiff being the sworn enemy of defendants NOS. 1 and 2 should not have been lightly brushed aside in determining whether the plaintiff was a holder in due course or not. But in the end while examining the question whether the plaintiff could recover against the third defendant, it observed that the trial court has found the plaintiff to be a bona fide transferee for value and there being only some suspicious circumstances this conclusion of the trial court seems on the whole justified as there was nothing definite in the evidence to indicate that the plaintiff was aware of the forgery of the first defendant's signatures on the promissory note and receipt, and unless this knowledge could be attributed to him, he wag entitled to maintain the suit against the third defendant to whom he had paid good value for the pronote, and yet the lower appellate court found that the plaintiff and the third defendant were in collusion. It was urged that these findings were self contradictory and inconsistent with each other. If the plaintiff was in collusion with the third defendant it could not be said that he was not aware of the forgery of the promissory note or that he was a holder in due course having purchased the promissory note for value and without knowledge of the forgery.

14. Having heard learned counsel, I found that the third defendant had stated on oath that he had sold the promissory note for Rs. 8000/- which was paid to him in cash by the plaintiff. A promissory note is a valuable security. If the promissory note was a forgery and the plaintiff had paid Rs. 8000 in cash to the third defendant as admitted by him on oath, as the price of the promissory note, and the plaintiff was not aware of the forgery of the promissory note when he purchased it, as found by the lower appellate court, it could well be said that the plaintiff could recover nothing on the basis of the promissory note as its holder in due course but may have recovered the amount paid by him to the third defendant as the price of the promissory note which turned out to be a forgery, by way of a claim for restoration of the benefit received on discovery that the contract of sale was void under Section 68 of the Contract Act but there was no such plea in the case and the lower appellate court has even found that the plaintiff and the third defendant were n collusion. There could be no doubt that the plaintiff could recover nothing if it was found that he had purchased litigation with his eyes open and was aware of the forgery of the promissory note in order to wreak vengeance against defendants Nos. 1 and 2 and of course, if it were found that the plaintiff had got the promissory note forged in favour of the third defendant and then he got it endorsed in his favour in order to take advantage of the law of negotiable instruments giving certain advantages to a holder in due course over the original drawee, all with a view to wreak his vengeance against defendants Nos. 1 and 2 there could be no doubt that the plaintiff could recover nothing.

15. Confronted with this situation, learned counsel for the plaintiff-respondent and the defendant-appellant both joined and urged that the finding of the lower appellate court that the promissory note was a forgery, was erroneous and being vitiated by errors of law, it was not binding even on second appeal. At this, learned counsel for defendants Nos. 1 and 2 urged that the finding was a finding of fact which had been arrived at by the lower appellate court on a careful appraisal and analysis of the evidence on the record and was binding on second appeal and further it was not open to the plaintiff-respondent to urge that the finding was incorrect inasmuch as he neither appealed from the decree of the lower appellate court nor had he assailed the correctness of the finding or of the decree even by way of a cross-objection.

16. To get over this triangular conundrum, I permitted the learned counsel for third defendant who is the appellant in this Court and who could undoubtedly question the findings against him and particularly the finding that the promissory note was a forgery, in view of which even an enquiry against him had been ordered, to show, if he could, that the finding was erroneous and vitiated in law.

17. I have in the earlier part of this judgment reproduced in extenso, the findings arrived at by the lower appellate court in its own words. The first thing which strikes me in this case is that the fact of the previous enmity between the plaintiff and defendants Nos. 1 and 2 is irrelevant in so far as the genuineness of the promissory note is concerned. It is too much to say that the third defendant would forge the promissory note and receipt on his own and then sell, it for a cash consideration of Rs. 8000/- to the plaintiff who was a sworn enemy of defendants Nos. 1 and 2 unless defendant No. 3 had his own axe to grind against defendants Nos. 1 and 2 and the plaintiff for by doing so the third defendant would be committing a fraud not only on defendants Nos. 1 and 2 but also on the plaintiff. The approach of the lower appellate court was coloured by relying on this irrelevant consideration. It is true that the fact that the plaintiff was the sworn enemy (of) defendants Nos. 1 and 2 is a circumstance which could not be lightly brushed aside in determining whether the plaintiff was a holder in due course or not but that was wholly irrelevant for finding out whether the third defendant had forged the promissory note on his own and without the knowledge of the plaintiff which had then been sold for a cash consideration of Rs. 8000/- to the plaintiff. The villain of the piece was the third defendant and not the plaintiff, and accordingly if motive was relevant it was the motive of the third defendant which mattered. Thus the existence of enmity between the third defendant and defendants Nos. 1 and 2 might have been relevant for finding out whether the third defendant had forged the promissory note in order to harass defendants Nos. 1 and 2 but that was nobody's case, and a person cannot easily set up and prove a story of having advanced money to a sworn enemy by way of loan, but the lower appellate court has found that the plaintiff. Shanker Lal, the scribe of the promissory note "were thick with Brijbaai Lal (the third defendant) at least in 1966 when they gave evidence for him in Section 145 Cr. P. C. proceedings." The proceedings under Section 145 Cr. p. C. were against one Surajbhan. The connection between Surajbhan and defendant Nos. 1 and 2 has not been brought out in the judgment of the lower appellate court. At any rate the finding refers to the year 1966 and the date on which the said evidence was given is 15th Oct. 1966, the suit giving rise to the present second appeal was filed on 1st September, 1966. The connection between this fact and the execution of the promissory note is not at all clear. The lower appellate court has also observed that Radhey Shyam, a witness of the promissory note was living in the same Ahata as the third defendant. That may be so but the fact that the witness of the receipt of money paid on a promissory note happens to be living in the same Ahata would show that the witness was easily available and not necessarily that he is a got-up witness unless of course one starts judging the evidence of a party's witnesses from the wrong angle by ascribing a motive to each witness and then discarding his evidence on that basis rather than on an objective appraisal of what he states on a balance of probabilities in the light of the proved facts and circumstances of the case and the pleadings of the parties. Another fact taken note of by the lower appellate court was that the first defendant had three sons but only Narottam was made to sign the pronote when no money was paid to Narottam. If no money was advanced to Narottam and no land was recorded in the name of Narollam I do not understand how that fact showed that if any money had to be realized from Narottam on any debt owed by him the inclusion of Dauji Ram the first defendant was important to reap the fruits of litigation.