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2008 DIGILAW 2925 (MAD)

Ramathal v. Savithri

2008-08-12

S.RAJESWARAN

body2008
Judgment :- This Civil Revision Petition has been filed by the petitioner/defendant to set aside the order dated 13.09.2007 passed by the learned Additional District and Sessions Judge, Fast Track Court No-4, Coimbatore at Tirupur in I.A.No.1758 of 2007 in O.S.No.384 of 2005. 2. The defendant in O.S.No.384 of 2005 is the revision petitioner before this Court. The suit in O.S.No.384 of 2005 has been filed by the respondent/plaintiff for Specific Performance of the sale agreement dated 23.01.2004. Written statement has been filed by the petitioner/defendant and the suit is being contested. Pending suit, an application in I.A.No.1758 of 2007 has been filed by the petitioner/defendant to summon the Sub Registrar, Nallur to produce document No.3082/2003 which is the sale deed executed by the revision petitioner in favour of one Muthulakshmi on 310. 2003, which contained her admitted signature and thumb impression. The said application was resisted by the respondent/plaintiff by filing a counter. The trial Court by order dated 13.09.2007 dismissed that application. Aggrieved by the same, the above civil revision petition has been filed. 3. This Court on 112. 2007 ordered notice. The respondent/plaintiff has entered appearance through counsel. 4. I have heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent and I have also gone through the documents filed in support of their submissions. 5. The learned counsel appearing for the petitioner submits that by dismissing the application filed by the petitioner/defendant for summoning the Sub Registrar, Nallur for producing the admitted document for the purpose of comparing the signature and thumb impression, an opportunity has been denied to the petitioner/defendant to establish her case and disprove the case of the plaintiff. Therefore, according to the learned counsel appearing for the petitioner/defendant the order passed by the Court below suffers from infirmity and illegality warranting interference by this Court under Article 227 of the Constitution of India. 6. Per contra, the learned counsel appearing for the respondent/plaintiff submits that the trial Court in paragraph 11 of the order dated 13.09.2007 has clearly stated that for effective/comparison of disputed signatures contained in a document, admitted documents containing contemporaneous signatures should be produced by the party seeking experts opinion. But the revision petitioner has not done so and hence according to the learned counsel, the trial Court has rightly dismissed the application. But the revision petitioner has not done so and hence according to the learned counsel, the trial Court has rightly dismissed the application. In support of his contentions, the learned counsel appearing for the respondent/plaintiff relied on two decisions in Central Bank of India Vs. Antony Hardware Mart, and another reported in 2006(3) CTC 39 and in Ammani Ammal Vs. Dhanalakshmi Bank Limited, and others reported in 2008(1) CTC 816 . 7. The defendant in O.S.No.384 of 2005 is the revision petitioner. The case of the respondent/plaintiff in O.S.No.384 of 2005 is that she entered in to a written agreement of sale on 30.05.1990 with the revision petitioner to purchase the suit schedule properties for a sum Rs.21 lakhs. She paid a sum of Rs.4 lakhs as advance on 30.05.1990 itself and the balance was to be paid within 10 months. As there was no pathway or cart track to reach the property, the respondent herein filed a suit in O.S.No.323 of 1993 for the Cart Track rights against the revision petitioner. During the pendency of the suit, it was agreed that the revision petitioner should provide a cart Track to reach the suit property and the advance amount of Rs.4 lakhs need not be returned. But later on it was agreed that the respondent herself should make her own arrangement to provide a cart Track. Thereafter, another sale agreement dated 23.01.2004 was entered in to for the same sale consideration of Rs.22 lakhs on 23.01.2004 and on that day another sum of Rs.2 lakhs was paid to the revision petitioner and the balance of Rs.16 lakhs should be paid within two years. As the revision petitioner has not come forward to receive the balance amount and execute the sale deed, O.S.No.384 of 2005 has been filed by the respondent herein. 8. The revision petitioner in her written statement denied that she executed any sale agreement on 23.01.2004 and according to her, she was not aware of the existence of the sale agreement dated 23.01.2004 till she received a notice dated 28.02.2005 from the respondent herein. Hence, she prayed for dismissal of the suit. Pending suit two applications were filed by the revision petitioner in I.A.No.1430 of 2007 and I.A.No.1758 of 2007 for summoning the Sub-Registrar, Nallur to produce a Sale deed containing her thumb impression and for sending the documents for experts opinion respectively. Hence, she prayed for dismissal of the suit. Pending suit two applications were filed by the revision petitioner in I.A.No.1430 of 2007 and I.A.No.1758 of 2007 for summoning the Sub-Registrar, Nallur to produce a Sale deed containing her thumb impression and for sending the documents for experts opinion respectively. The trial Court by order dated 13.09.2007 dismissed both the applications. But the revision has been filed only against the order in I.A.No.1758 of 2007 only, which was filed for issuing the summons for producing the above said documents. 9. Before proceeding further let me consider the decisions relied on by the learned counsel for the respondent. In 2006(3) CTC 39 (CS), a Division Bench of this Court held as under:- "At the out set, we want to point out that the Trial Court has committed an error in comparing the signatures in Ex.A-2 and Ex.A-5 with the admitted signature of the defendant in the vakalath and written statement. In the judgment in Somasundaram v. Palani, 1999(3)CTC 156, this Court has held as follows: "Even though the Court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed in to Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison." It is settled law that the disputed signature can be compared with admitted signature, which were contemporaneous and not with the admitted signatures obtained subsequent to the date of the disputed signature. By lapse of time, there may be some difference in the signature of a person. Only based on that principle, the above said judgment has been rendered by the learned single Judge of this Court. Therefore, the Trial Court erred in comparing the signatures in Ex.A2 and Ex.A5 with the signatures found in the Vakalath and written statement of the defendant. Only based on that principle, the above said judgment has been rendered by the learned single Judge of this Court. Therefore, the Trial Court erred in comparing the signatures in Ex.A2 and Ex.A5 with the signatures found in the Vakalath and written statement of the defendant. In 2008(1)CTC 816(CS) another Division Bench of this Court held as under:- "The Debts Recovery Appellate Tribunal took the task of comparing the signature of the petitioner and observed that there is no variation between the admitted signature and the disputed signature. When there is a serious dispute with regard to the signature, it is always advisable for the Court or Tribunal to refer the matter to an expert. Of course, Section 73 of the Indian Evidence Act permits the Court to compare the signature. However in cases like present one, where the signatures are found in so many documents, and execution of mortgage itself is in dispute, tit is better to send those documents for expert opinion." "Even though Section 73 of the Indian Evidence Act permits the Court to compare the disputed signature with that of the admitted signature, such signature can be compared only with admitted signatures available which are prior in point of time. The Debts Recovery Appellate Tribunal did not compare the signature with the admitted signature which were contemporaneous and therefore, the learned Senior Counsel appearing for the petitioner is right in his submission that there may be some difference in the signature of a person by lapse of time and as such, the petitioner was justified in objecting to the comparison of her signature in the disputed documents with that of her present signature." 10. From the above, it is very clear that it is settled law that disputed signatures can be compared with admitted signatures which are contemporaneous in nature and not with the admitted signature obtained subsequent to the date of the disputed signatures. Further it is for the plaintiff to establish the case if the plaintiff claims that document is validly executed. It is no doubt true that Section 73 of the Evidence Act permits the Courts to compare the signatures, but in complicated cases, where the signatures are found in so many documents and the execution of the document itself is in dispute, it is better to send those documents for expert opinion. 11. It is no doubt true that Section 73 of the Evidence Act permits the Courts to compare the signatures, but in complicated cases, where the signatures are found in so many documents and the execution of the document itself is in dispute, it is better to send those documents for expert opinion. 11. In the light of the above settled legal principles, now let me consider the facts of the present case. 12. The respondent herein claims that she entered in to a sale agreement with the petitioner on 30.05.1990 and thereafter another sale agreement for the very same property on 23.01.2004. Based on this sale agreement dated 23.01.2004, the suit has been filed for Specific Performance. The revision petitioner though admitted the sale agreement dated 30.05.1990 disputed the very execution of sale agreement dated 23.01.2004. To prove that the signature contained in the sale agreement dated 23.01.2004, she filed I.A.No.1758 of 2007 to summon the Sub Registrar to produce the Sale deed executed by her on 310. 2003 in favour of one Tmt.Muthulakshmi, which contained her admitted signature and thumb impression. 13. From the above, it is very clear that the admitted signature was of the period October,2003 and the disputed document was executed on 23.01.2004 and therefore it cannot be said that the signatures of contemporaneous period. Further, it is for the respondent/plaintiff to prove her case and even though the suit was filed in 2005 itself, these applications have been filed in August,2007, i.e., one year after filing the written statement in August,2006. That apart I.A.No.1430 of 2007 filed by the petitioner herein for sending the document for experts opinion was also dismissed by the trial Court in the very same order dated 13.09.2007, but that order was not challenged by the revision petitioner. 14. Therefore, I do not find any merit in the above civil revision petition and the same is dismissed. No costs. Consequently, connected M.P. is also dismissed. 15. Since, the suit is of the year 2005, I direct the trial Court viz., the learned Additional District and Sessions Judge, Fast Track Court No.IV, Tirupur to dispose of the suit in O.S.No.384 of 2005 on merits and in accordance with law within a period of six months from the date of receipt of a copy of this order.