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2001 DIGILAW 1316 (MAD)

Saroja v. Poorna Mariyal

2001-11-06

A.RAMAMURTHI

body2001
ORDER: Defendants in O.S.No.81 of 1998 on the file of District Munsif Court, Aruppukottai, have preferred this revision petition aggrieved against the orders passed in I.A.No.319 of 2001, dated 7.6.2001. 2. The case in brief is as follows: The revision petitioners/defendants filed a petition underO.26 , Rule 10-A and Sec.151 of Civil Procedure Code to send Exs.B-2 and B-23 with the admitted signatures of the first respondent for comparison to the Government handwriting expert at Madras through an Advocate Commissioner. These two documents came into existence on 12.5.1997 and the signatures in the documents have been disputed by the first respondent. The respondents opposed the application that Ex.B-23 is attested by a Notary Public and the due execution of the document can be proved by examining the Notary Public and, as such, there is no necessity to send the documents for comparison. Now the evidence is in the closing stage and the present application has been filed only to delay the proceedings. Even assuming that the opinion is received from the handwriting expert, it is not a conclusive one under Sec.45 of the Evidence Act. 3. The learned District Munsif after hearing the parties, dismissed the application and aggrieved against his, the present revision is filed. 4. Heard, the learned counsel of both sides. 5. The point that arises for consideration is whether the order passed by the Court below is proper and correct. 6. Point: The plaintiffs filed O.S.No.81 of 1998 on the file of District Munsif Court, Aruppukottai for a declaration that the suit property belong to the plaintiffs and the first defendant and for permanent injunction and accounting. The suit was resisted by the defendants and they relied upon two documents dated 12.5.1997 marked as Exs.B-2 and B-23 during the time of trial. It is pertinent to state that these documents have been referred to even in the written statement filed by the defendants. The evidence in the case has already been commenced and these two documents have been marked on the side of the defendants. It appears that these two documents were also shown to the first respondent during the cross-examination and she had denied the signature. It is only under such circumstance, the defendants have filed the present application to send these documents through an Advocate Commissioner to the Government handwriting expert fro the purpose of comparison with the admitted signatures. 7. It appears that these two documents were also shown to the first respondent during the cross-examination and she had denied the signature. It is only under such circumstance, the defendants have filed the present application to send these documents through an Advocate Commissioner to the Government handwriting expert fro the purpose of comparison with the admitted signatures. 7. Perusal of the order passed by the Court below indicates that these documents can be proved through evidence. No doubt, one of the documents dated 12.5.1997 came into existence in the presence of a Notary Public. By examining the Notary Public and also by producing the entries in the relevant register. Ex.B-23 can be proved. The reasoning given by the Court below cannot be accepted. No doubt, the original documents cannot be sent to the handwriting expert directly and only photo copies can be sent for the purpose of comparison. 8. Learned counsel for the respondents also relied on the decision reported in T.A.Narasimhan v. Narayana Chettiar and another T.A.Narasimhan v. Narayana Chettiar and another (1968)2 MLJ. 48 as follows: “When the defendant in a civil suit applies to the Court for obtaining the opinion of a named handwriting expert to prove the genuineness of certain disputed documents to support his case, the Court cannot compel him to choose or accept a handwriting expert of the choice of the plaintiff for this purpose. The handwriting expert is after all a witness of a particular party and a party cannot be compelled to choose a witness according to the dictation of the opposite party. The practice of sending original documents in the custody of Court to handwriting experts is a highly objectional and a very bad procedure. Under no circumstances should a Court permit or allow the documents to go out of its custody, as such an evil practice is attendant with various risks. The proper procedure in such cases would be only to permit the handwriting expert to inspect the document in the Court premises itself in the presence of some responsible officer of the Court and also if necessary permit the expert to have photographic copies of documents in the presence of the responsible officer of the Court. Any lapse in taking the necessary safeguards in this direction may result in miscarriage of justice, besides creating complications”. The principle in this direction can be made applicable to the case on hand. Any lapse in taking the necessary safeguards in this direction may result in miscarriage of justice, besides creating complications”. The principle in this direction can be made applicable to the case on hand. 9. Now, the learned counsel for the revision petitioners seeks permission to send Exs.B-2 and B-23 to the handwriting expert for the purpose of comparison since the first respondent in the course of evidence has disputed her signatures. The opinion of the handwriting expert may not be a conclusive one; but at the same time, it will definitely guide the Court to come to a reasonable conclusion for effective adjudication of the dispute. The sending of original documents is deprecated and under the circumstance, the handwriting expert can be permitted to take photographic copies of the documents in the presence of the officers of the Court and thereafter, he can give the opinion. If that is not possible, then the revision petitioners themselves can arrange to take photographic copies of the documents containing the admitted signatures as well as the disputed signatures of the first respondent in the Court in the presence of Court officials and send those copies to the handwriting expert for the purpose of comparison and opinion. 10. For the reasons stated above, the revision petition is allowed and the order passed by the Court below is set aside and the Court below is directed to address the handwriting expert to take photographic copies of the documents containing the admitted and the disputed signatures of the first respondent in the presence of a responsible officer of the Court and thereafter, give the opinion. If the handwriting expert is not in a position to attend the Court and take photographic copies, then it is open to the revision petitioners to arrange a photographer to take copies of the documents in the presence of the officer of the Court and send the photographic copies of the documents containing the admitted and disputed signatures to the handwriting expert for the purpose of comparison and opinion. The revision petitioners are directed to meet the entire expenses in carrying out the work. The trial Court is directed to get the opinion in a period of three months. No costs. Consequently, C.M.P.No.15108 of 2001 is closed. S.S. ----- Petition allowed.