Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 52 (MAD)

Jayaraman & Others v. Limichand

2009-01-07

G.RAJASURIA

body2009
Judgment :- Anim-adverting upon the order dated 22. 2008 passed in I.A.No.8 of 2008 in O.S.No.32 of 2007 by the Subordinate Judge, Mannargudi, this civil revision petition is filed. 2. A resume of facts which are absolutely necessary and germane for the disposal of this civil revision petition would run thus: The respondent, as plaintiff, filed the suit O.S.No.32 of 2007 for specific performance of an agreement to sell. The respondent/plaintiff adduced evidence and closed his side. The petitioners/defendants, on entering upon their defence, filed an application I.A.No.8 of 2008 for sending the disputed endorsements and signatures on the agreement to sell to the expert for obtaining opinion, as according to them those endorsements and signatures are not that of theirs and they were not the author of the same. The sub Court dismissed the said application on the sole ground that the Court itself, as per Section 73 of the Indian Evidence Act can compare the disputed signatures with the admitted signatures. Being dissatisfied with and aggrieved by the said order this civil revision petition has been filed on various grounds. 3. The learned counsel for the petitioners/defendants would develop his argument to the effect that even though Section 73 of the Act empowers the Court to compare the signatures, nevertheless it is advisable to send the disputed endorsement/signatures to the expert, who by applying his expert knowledge, would be able to enlighten the Court in a much better manner. 4. However, the learned counsel for the respondent/plaintiff, placing reliance on the following judgments (i) 2006(3) CTC 39 – Central Bank of India (A Nationalised Bank), rep by its Manager N. Gururajan, vs. Antony Hardware Mart, rep.by its Proprietor, K.Subbiah and (ii) 2008(2) CTC 464 – N. Ayyasamy vs. S.K. Chinnasamy would develop his argument to the effect that at the first instance, the Court could compare the handwritings/signatures and in the event of the Court finding any difficulty, it is open for the Court to send them to the expert. 5. Whereas, the learned counsel for the petitioners/defendants would invite the attention of this Court to the decision of the Honourable Apex Court reported in 2007(2) CTC 364 Kalyani Baskar vs. M.S. Sampoornam and develop his argument that as per the view of the Honourable Apex Court, it is just and necessary to send the disputed signatures for expert opinion. 6. Whereas, the learned counsel for the petitioners/defendants would invite the attention of this Court to the decision of the Honourable Apex Court reported in 2007(2) CTC 364 Kalyani Baskar vs. M.S. Sampoornam and develop his argument that as per the view of the Honourable Apex Court, it is just and necessary to send the disputed signatures for expert opinion. 6. When all said and done, considering the pro et contra, in this factual matrix, I am of the considered opinion that the trial Court judgment is not in accordance with the view as found exemplified and demonstrated in the Division Bench judgment of this Court reported in 2006(3) CTC 39 – Central Bank of India (A Nationalised Bank), rep by its Manager N.Gururajan, vs. Antony Hardware Mart, rep.by its Proprietor, K. Subbiah. The order of the lower Court gives the impression as though the Court can itself could compare the disputed signature with the admitted signature and that there is no necessity to cite the reasons regarding the arduous nature or otherwise, in comparing the handwritings/signatures in this case. The learned counsel for the respondent/plaintiff would submit that in such a case, necessary direction might be given to the trial Court to consider the matter on the line as mandated in the Division Benchs judgment of this Court. 7. A bare perusal of the order of the lower Court would demonstrate and exemplify that the lower Court did not address itself to all these aspects and simply held as though the Court itself could compare the signatures. The lower Court should bear in mind that if it undertakes the job of an expert in comparing the disputed handwritings/signature with the admitted ones, it should necessarily advert to the various characteristics in the science concerned and finally it should arrive at a conclusion and when such a process is possible, the lower Court can refrain from sending disputed handwritings/signatures to the expert, as otherwise, the lower Court should send the same to the expert for opinion. 8. In the result, the order dated 22. 2008 passed I.A.No.8 of 2008 is set aside and the matter is remitted back to the lower Court for disposal within a period of 15 days from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petition is closed.