Boorasamy Naidu v. Kannusamy Naidu and Company represented by its Proprietor, R. Bashayam Naidu
2002-03-01
K.GOVINDARAJAN
body2002
DigiLaw.ai
JUDGMENT: The unsuccessful respondent before the lower appellate Court has filed this second appeal. 2. The plaintiff filed a suit for recovery of a sum of Rs.10,370.20 with interest as acknowledged under Ex.A-7. The defendant contested the suit contending inter alia that under Ex.A-7, the defendant had not executed any such acknowledgment and he is not liable to pay any amount. According to him, after 1979, the defendant did not have any transaction with the plaintiff. 3. The trial Court as suggested on behalf of the defendant, compared the signatures in Ex.A-7 and Ex.A-3, came to the conclusion that the defendant did not execute the said acknowledgment and on that basis, dismissed the suit. Hence, the plaintiff filed an appeal in A.S.No.103 of 1989. The lower appellate Court after comparing the admitted signature of the defendant with the signature under Ex.A-7, found that the signature in Ex.A-7 is the signature of the defendant, and on that basis, reversed the judgment and decree of the trial Court and allowed the appeal. Hence, this second appeal. 4. The substantial questions of law that were framed in this case are as follows: (i) Has not the subordinate Judge erred in reversing the well considered judgment and decree of the trial Court, in arriving at a conclusion about the genuineness of Ex.A-7 endorsement without following the principles laid down in the case reported in State (Delhi Administration) v. Pali Ram, A.I.R. 1979 S.C. 14 and without even looking into the admitted signature found place in Exs.A-1 to A-3 and disputed signature found place in Ex.A-7 properly? (ii) Are not the judgment and decree of the lower appellate Court against evidence and perverse, particularly when each and every letter of the defendant’s signature contained in admitted documents Exs.A-1 to A-3 and the disputed one Ex.A-7 totally vary? (iii) When the burden is on the plaintiff to prove Ex.A-7 endorsement as genuine and when no step is taken by the plaintiff to prove Ex.A-7, whether the lower appellate Court is right in holding that Ex.A-7 alleged endorsement is genuine, particularly when even for a naked eye, the admitted signature and disputed signature totally vary? 5. The learned counsel appearing for the appellant has submitted that the lower appellate Court is not correct in comparing the signatures by itself without getting assistance from the expert.
5. The learned counsel appearing for the appellant has submitted that the lower appellate Court is not correct in comparing the signatures by itself without getting assistance from the expert. In support of his submission, the learned counsel relied on the judgment in O.Bharatahan v. K.Sudhakaran, A.I.R. 1996 S.C. 1140 and State (Delhi Administration) v. Pali Ram, A.I.R. 1979 S.C. 14. 6. In O.Bharatahan v. K.Sudhakaran, A.I.R. 1996 S.C. 1140, the Apex Court while dealing with the order passed in th election petition by the High Court, found that the learned Judges has erred in taking up himself the task of comparing the disputed signatures in the counter-foil without getting the aid or evidence an expert or a person conversant with disputed signatures. 7. But in Murarilal v. State of M.P., A.I.R. 1980 S.C. 531, such a practice has been approved. In the said judgment the learned Judges have held as follows: "The argument that the Court should not venture to compare writing itself, as it would thereby assume to itself the role of an expert is entirely without force. Sec.73 of the Evidence Act expressly enable the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call ex parte and the vices science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plan duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the Court is no expert. Where there is none, the Court will have to seek guidance from some authoritative text book and the Court’s own duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings. 8.
Where there is none, the Court will have to seek guidance from some authoritative text book and the Court’s own duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings. 8. Moreover, in the present case, as submitted by the counsel for the respondent (the trial Court, at the instance of the defendant, compared the signatures and decided the suit in favour of the defendant. Since the lower appellate Court had decided the case as against the defendant, now such a plea has been raised, stating that the Court should not have compared the signature. When the lower appellate Court has come to a conclusion that the signature in Ex.A-7 is that of the defendant, I am not inclined to interfere with the said finding. 9. The learned counsel appearing for the appellant further submitted that the suit is barred by limitation, as the defendant did not have any transaction after 1979. But Ex.A-7 was executed on 12.4.1983. If that date is taken into consideration the suit is filed well within the time prescribed under the Limitation Act. Once the lower appellate Court is able to come to a conclusion that Ex.A-7 had been executed by the defendant, the submission that the suit is barred by limitation cannot be accepted. 10. I do not find any reason to interfere with the judgment and decree of the lower appellate Court. Hence, this second appeal is dismissed. No costs.