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2004 DIGILAW 843 (MAD)

G. Senbagaraman v. N. Marimuthu

2004-07-07

S.SARDAR ZACKRIA HUSSAIN

body2004
ORDER :- The revision petitioner is the defendant in O.S. No. 761 of 2002 on the file of the II Additional District Munsif Court, Salem. The revision is filed against the dismissal of I.A. No. 251 of 2003 filed by the revision petitioner under Section 45 of the Indian Evidence Act to send the document, dated 27-8-2001 said to have been entered into between the plaintiff and the defendant, to the Government Handwriting Expert, Chennai along with the admitted signatures of the defendant for his comparison and report. 2. The respondent/plaintiff filed the suit on 21-10-2002 for permanent injunction that his peaceful possession should not be disturbed by the defendant and his men. In the plaint it is set out that for the amount due to the defendant firm run in the name of Dhanalakshmi Timbers and payable by the V.M. Timbers run in the name of the plaintiff's wife and as per the request made by the defendant , the plaintiff executed the sale deed on 24-8-2001 conveying the family house and only by way of security for the amount due and payable during the business transaction, such sale deed was executed. On the basis of such sale deed , an agreement was entered into between the plaintiff and the defendant on 27-8-2001 styled as possessory agreement and as per the agreement, the defendant granted permission to the plaintiff and his family members to be in possession of the property sold and pursuant to such agreement, the plaintiff and his family members continued to be in possession of the said property. Since the defendant threatened to disposses the plaintiff and his family members from the house on 10-10-2002, which was prevented, the suit for permanent injunction was filed. 3. The suit was resisted by filing written statement on 9-2-2003. It is admitted that a sum of Rs. 3,66,184/- was due and payable by the plaintiff for V.M. Timbers run by his wife. Further, according to the defendant, only after receiving the sale consideration of Rs. 2, 33,000/- in cash, the plaintiff executed the sale deed and the plaintiffs wife and son also stood as witnesses to the sale deed. It is denied by the defendant that an agreement was entered into between the plaintiff and the defendant on 27-8-2001 styled as possessory agreement and according to the defendant, the said document is forged. 4. 2, 33,000/- in cash, the plaintiff executed the sale deed and the plaintiffs wife and son also stood as witnesses to the sale deed. It is denied by the defendant that an agreement was entered into between the plaintiff and the defendant on 27-8-2001 styled as possessory agreement and according to the defendant, the said document is forged. 4. Thereafter, the defendant filed I.A. No. 251 of 2003 on 10-4-2003 to send the suit document, viz., the agreement said to have been entered into between the plaintiff and the defendant on 27-8-2001 styled as possessory agreement, to the Government Handwriting Expert, Chennai for comparison along with the admitted signatures of the defendant. The petition was opposed by filing counter that no document executed by the defendant prior to 27-8-2001 have been filed and that the said document also cannot be sent to the Government Handwriting Expert of his opinion being the original document. 5. The Additional District Munsif after hearing both sides dismissed the petition accepting the case of the plaintiff, that no document executed by the defendant prior to the suit document have been filed along with the petition and stating the signatures in vakalath and other papers in the case bundles of the defenadant are disputed by the plaintiff. The Order is challenged in this revision. 6. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. 7. The learned counsel for the revision petitioner contended that inasmuch as the alleged suit agreement said to have been entered into between the plaintiff and the defendant styled as possessory agreement dated 27-8-2001 is disputed as not executed by the defendant and the signature in the document is forged, the signature in the said document is to be compared by the Government Handwriting Expert with the admitted signatures of the defendant in the vakalath, suit summons served upon the defendant and other papers available in the suit bundle and with the signature that can be taken in open Court. The learned counsel relied on the decision of a Division Bench of this Court in D. Pandi v. The Dhanalakshimi Bank Limited reported in (2001) 2 CTC 12 : ( AIR 2001 Mad 243 ), in which it is held :- "Evidence Act, 1872, Sections 45, 47, 67 and 73 - Section 67 requires that handwriting of person must be proved to be in his handwriting. Court can to find genuineness of hand writing seek experts opinion under Section 45. Opinion of any person acquainted with such handwriting is also relevant evidence. Court can also call upon party questioning his signature to write words and figures in Court for comparison purpose. Failure to demand such writing is not fatal to case. Court could compare disputed signature and admitted signature but if there is doubt experts opinion should be sought." 8. The learned counsel for the respondent in supporting the order of the trial Court argued that inasmuch as the defendant has not filed admitted documents executed by him prior to the suit agreement dated 27-8-2001 and considering that the signature of the defendant in vakalath and other papers in case bundle could have been made just to defeat the case of the plaintiff, the dismissal of the petition to send the suit document for comparison with the signatures in the admitted document which was not filed, has been correctly made and does not require any modification. 9. It is denied by the defendant that he executed the suit agreement styled as possessory agreement permitting the plaintiff and his family members to be in possession even after execution of the sale deed dated 24-8-2001 executed in his favour. The defendant filed his written statement on 9-2-2003 disputing the signature in the said agreement and on 10-4-2003 he also filed the petition, subject matter of this revision to send the said document to the Government Handwriting Expert at Chennai for comparison along with the admitted signatures of the defendant. The entire case of the plaintiff rests on the suit agreement styled as possessory agreement. Inasmuch as the case of the plaintiff that even after execution of sale deed dated 24-8-2001 conveying the family house to the defendant, pursuant to the said agreement they are in possession of the said property which case is totally denied by the defendant, it is just and appropriate that the document in question is compared by the Government Handwriting Expert with the signature of the defendant in the vakalath and other papers available in the case bundle and also admitted signature that can be obtained in the Court and the document can be compared by the Government Handwriting Expert in the Court and in the presence of the Chief Administerial Officer of the Court. If any document executed by the defendant prior to the suit agreement is available, the signature in the said document can also be compared by the said Government Handwriting Expert for giving his opinion and for filing report. The order of the trial Court being improper is to be set aside. 10. In the result, this Civil Revision Petition is allowed with cost. The order dated 19-6-2003 made in I.A. No. 251 of 2003 in O.S. No. 761 of 2002 by the learned II Additional District Munsif, Salem is set aside and the petition I.A. 251 of 2003 is allowed permitting the Government Handwriting Expert, Chennai to examine in the Court and in the presence of Chief Administerial Officer of the Court the signature in the suit document with the signatures of the defendant taken in open Court, in the vakalath, written statement, summons served on the defendant and in the document executed by the defendant if available and prior to the suit agreement for the purpose of filing opinion and report. The trial Court is to fix fee of the Government Handwriting Expert payable by the defendant. Consequently, the petition in C.M.P. No. 18158 of 2003 is closed.