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2009 DIGILAW 2685 (MAD)

N. Manickam v. A. Nallasamy

2009-07-27

V.PERIYA KARUPPIAH

body2009
Judgment : This revision petition has been directed against the order dated 7. 2006 passed by the Additional District Judge, (District Court-cum-Fast Tract Court No.1, Erode in I.A.No.165 of 2008 in A.S.No.2 of 2006. 2. The respondent herein (appellant/plaintiff) has filed I.A.No.165 of 2008 in A.S.No. 2 of 2006 before the lower appellate Court praying for a direction to appoint an advocate Commissioner to take the documents containing the disputed signature (suit pronote) and the admitted signature found in the vakalath filed by him and suit summon and Exhibit A-3 in the suit to the forensic department, Chennai with a direction to compare the same and to submit their opinion. 3. The lower Court, after hearing both sides, had allowed the application by appointing an advocate Commissioner with a direction to submit her report on 30.6.2008. Being aggrieved by the said decision of the lower Court, the revision petitioner (defendant) has preferred this Civil Revision Petition. 4. Heard Mr. V. Bharathidasan, the learned counsel appearing for the petitioner and Mr. N. Manoharan, the learned counsel appearing for the respondent. 5. Mr. V. Bharadhidasan, the learned counsel appearing for the petitioner/respondent would submit in his argument that the appeal has been preferred against the judgment of the lower Court and in the said appeal, appellant has filed a petition for appointment of Commissioner to send the suit promissory note in which the signature of the defendant was disputed by the respondent along with other Court documents i.e. the vakalat, suit summons and Exhibit A-3 containing the signatures of the defendant to the Forensic Science Laboratory, Mylapore, Chennai for comparing the disputed signature in the promissory note with that of the admitted signatures un the vakalat, suit summons and Exhibit A-3 in Court and to get the opinion of the hand writing expert as to the genuineness of the defendant’s signature in the suit promissory note and to file the report before the Court. He would further submit that the petitioner, who is the respondent in the appeal and defendant in the suit, had contested the said petition filed before the first appellate Court and however, the Court had ordered for the appointment of Commissioner for the petition mentioned purposes. He would further submit that the petitioner, who is the respondent in the appeal and defendant in the suit, had contested the said petition filed before the first appellate Court and however, the Court had ordered for the appointment of Commissioner for the petition mentioned purposes. He would also submit that the lower appellate Court did not consider that the disputed signature in the suit promissory note was earlier in point of time and the signature put, up by the petitioner/defendant in the vakalat, suit summons and Exhibit A-3 were during the subsequent period and the said signatures cannot be considered as the signatures of contemporaneous period and, therefore, the comparison cannot be done perfectly by the hand writing expert and he may not come to a correct conclusion, regarding the genuineness of the signature found in suit promissory note. .6. He would further submit in his argument that it is a settled law that the documents of the Court cannot be permitted to be taken outside the custody of the Court even by appointing a Commissioner for the purpose of comparing the signatures of the petitioner/defendant with that of the disputed signature. He would also submit that the lower Court ought to have considered that there was no ground for ordering the comparison of the admitted signatures of the defendant in the aforesaid Court records with that of the disputed signature in the suit pronote since the respondent/plaintiff did not prove the signature of the defendant/petitioner. The opinion of the hand writing expert with regard to the finding of the admitted signature and the disputed signatures cannot be a conclusive one, to be relied on by the counsel. He would further submit that the lower appellate Court had not gone in to the burden of proving the execution of promissory note and, therefore, it has ordered the petition filed by the respondent/plaintiff seeking for sending the documents for comparison of the signatures by hand writing expert through the Commissioner. 7. He would also cite an authority of this Court in between Central Bank of India v. Antony Hardware Mart (2006) 3 CTC 39 : (2006) 3 MLJ 567 to the principle that the burden is on the plaintiff to establish the case when the signature of the defendant has been denied in a suit document. 7. He would also cite an authority of this Court in between Central Bank of India v. Antony Hardware Mart (2006) 3 CTC 39 : (2006) 3 MLJ 567 to the principle that the burden is on the plaintiff to establish the case when the signature of the defendant has been denied in a suit document. Therefore, he would request the Court to interfere and set aside the order passed by the lower Court and thereby to allow the revision. .8. Mr. N. Manoharan, the learned counsel appearing for respondent (appellant/plaintiff) would submit in his argument that the lower Court had correctly appraised the situation and had come to a conclusion of appointing the advocate Commissioner to take the documents from the Court for comparison before the hand writing expert to the Forensic Science Department. Mylapore, Chennai and there is nothing wrong in ordering the advocate Commissioner to take safe custody of the documents from the Court and to produce the same, after the examination of those documents by the hand writing expert for comparison of signatures, into the Court. He would also submit that the respondent/plaintiff can always move the petitioner before the appellate Court, as categorically laid down by this Court in the judgment in between M. Govindaraj v. Dr V. Nallasivan (2008) 4 MLJ 176 : (2008) 2 CTC 518. He would also submit that the Court documents in which the admitted signatures of the defendant available in vakalat, summons and Ex.A3 and, therefore, there is no harm in comparing the disputed signature of the petitioner (defendant) in the suit promissory note with that of the signatures available in the aforesaid Court records. He would also cite the judgment of our Hon’ble Apex Court in between Venkata Murali Krishna Rao v. Upalli Satvathamma (2008) 4 LW 687 (SC) in support of his argument. Therefore, he would request the Court that the order passed by the lower Court is perfectly all right and nothing is available to interfere with the orders of the lower Court and, therefore, the revision has to be dismissed. 9. I have given anxious consideration to the arguments advanced on either side. 10. The revision petitioner is the defendant before the lower Court and the respondent in the appeal before the first appellate Court. The respondent herein was the plaintiff before the trial Court and the appellant before the first appellate Court. 11. 9. I have given anxious consideration to the arguments advanced on either side. 10. The revision petitioner is the defendant before the lower Court and the respondent in the appeal before the first appellate Court. The respondent herein was the plaintiff before the trial Court and the appellant before the first appellate Court. 11. For convenience sake, the ranks of the parties before the trial Court is being used. 12. According to the case of the defendant before the Courts below that he had denied the execution of the promissory note and after a full fledged trial, the trial Court held that the plaintiff did not prove the signature of the defendant in the suit promissory note and, therefore, it dismissed the suit. Aggrieved plaintiff had preferred appeal before the lower Appellate Court questioning the judgment and decree of the trial Court and at the same time, he has also filed a petition for appointment of Commissioner for taking the disputed signature of the defendant in the suit promissory note along with the admitted signatures available in the Court records mentioned supra, to the hand writing expert at Madras for comparison and also to get the report of the hand writing expert and to submit the same before the Court. The said plea of appointment of commissioner as sought for by the plaintiff was allowed by the first appellate Court and against which the present revision has been preferred by the petitioner herein, the defendant. 13. The first appellate Court had ordered the appointment of Commissioner in respect of Comparison of the disputed signature with the signatures of the defendants in Court records which are admittedly put by the defendant in the subsequent years. According to the judgment cited by the learned counsel for the respondent/plaintiff in Venkata Murali Krishna Rao v. Upalli Satvathamma (supra), it has been categorically pointed out by the Hon’ble Apex Court as follows. “……Again the petitioner filed LA.No.546 of 2006 purportedly under Section 45 of the Act with a prayer to send Exhibits B-1 to B-12 to Government Expert for comparison of the signatures of C.W.1 appearing thereon with his admitted signatures appearing on the deposition as well as summons served on him ……. The High Court dismissed the application primarily on the ground that the Intention of the appellant is to protract the litigation….. The High Court dismissed the application primarily on the ground that the Intention of the appellant is to protract the litigation….. In the said judgment, it has been categorically mentioned that the order passed by the High Court in dismissing the application seeking for sending the documents for hand writing expert by holding that the application was filed to protract the litigation was set aside the Hon’ble Apex Court and there is no dispute in respect of the period of documents questioned and the admitted signatures found in the deposition and suit summons. In the said case, there was no dispute that the disputed signatures were not of contemporaneous period. However, in this case, the suit promissory note is sufficiently earlier to the suit documents, namely, the vakalat. Suit summons, and Exhibit A-3 which were admittedly subsequent in nature. Therefore, they are not considered to be contemporaneous documents. However, in the judgment of this Court in between Ammani Ammal v. Dhanalakshmi Bank Limited and Others (2008) 2 MLJ 395 : MANU/TN/0830/2008 it has been discussed that the disputed signatures and the admitted signatures should have been of the contemporaneous period, the signatures of different period cannot be sent for any comparison by a hand writing expert. The relevant passage in the aforesaid judgment would run as follows at p.414 of MLJ: “44. Even though Section 73 of the Indian Evidence Act permits the Court to compare the disputed signatures with that of the admitted signatures 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 signatures 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 signatures of a person by lapse of time and, as such, the petitioner was justified in objecting to the comparison of her signatures in the disputed documents with that of her present signatures.” 14. Therefore, it is clear that the judgment of our Hon’ble Apex Court cited supra alone is exclusively applicable to the facts of this case. Moreover, the documents of this Court cannot be sent outside the premises of the Court. Therefore, it is clear that the judgment of our Hon’ble Apex Court cited supra alone is exclusively applicable to the facts of this case. Moreover, the documents of this Court cannot be sent outside the premises of the Court. The appointment of Commissioner for taking the documents from the custody of the Court for having compared by the hand writing expert will not also be safe. The Advocate Commissioner cannot be present at the Forensic Science Laboratory through out during the examination of signatures by the hand writing expert and to watch over the documents concerned for its safety and to get those documents after such comparison for returning them to the Court. Therefore, sending the documents outside the Court through the Advocate Commissioner, for the purpose of comparison of signatures by the hand writing expert is also not safe. The first appellate Court ought not to have considered the plea of the plaintiff who is to prove the signature of the defendant by adducing cogent oral evidence to prove his case. The opinion of the hand writing expert as to its genuineness of the disputed signature of plaintiff will not in any way prove the execution of the suit promissory note. It could be possible only by adducing oral evidence regarding the execution of the said document. The defendant had denied the signature in the suit promissory not filed by the plaintiff. It is for the defendant to disprove the case that the said signature found in the suit promissory note was not belonging to him in the event of the plaintiff proved the signature of the defendant. For that purpose, he could ask the Court to compare the disputed signature in the promissory note with that of the admitted signatures available in the documents of contemporaneous period. Here, the plaintiff himself has asked for the comparison of the disputed signature with that of the admitted signatures of the defendant laid in different periods. For these points, the lower appellate Court should not have ordered for the appointment of Commissioner for taking the suit promissory note with the disputed signature of the defendant for comparison with the admitted signatures in the Court records and to file the report of the hand writing expert. However, it has been ordered by the first appellate Court, which is certainly not in accordance with law. However, it has been ordered by the first appellate Court, which is certainly not in accordance with law. Therefore, it has become necessary for this Court to interfere with the order passed by the lower Court and set aside the same. 15. Accordingly, the order of appointment of Commissioner to take the suit promissory note with the disputed signature and the Court records containing the admitted signatures to the hand writing expert for comparison and to get opinion in the form of report for filing the report into Court is set aside and thus the revision is allowed. 16. In fine, the Civil Revision Petition is allowed. No costs.