Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 4080 (MAD)

Mehboob Bi v. Natesa Padayachi

2010-09-08

R.S.RAMANATHAN

body2010
Judgment :- 1. The defendant in O.S.No.80 of 2005 on the file of the Learned 1st Additional Subordinate Judge, Villupuram., is the revision petitioner. The respondent/plaintiff has filed the above suit for recovery of Rs.1,71,500/- from the revision petitioner on the basis of a mortgage deed executed by the defendant/revision petitioner. The defendant/revision petitioner filed a statement stating that the interest for a period from 15.09.1999 to 02.03.2004 at the rate of 36% p.a. was calculated on Rs.1,00,000/- and that was paid and receipt was also issued by the plaintiff to that effect on 02.03.2004. But the defendant, did not file the said document along with the written statement but later, filed an application to receive the document and that was allowed. During the trial, the plaintiff denied the execution of the document dated 02.03.2004, alleged to have been executed by him in favour of the defendant/revision petitioner and therefore, the defendant filed an application in I.A.No.504 of 2006 in O.S.No.80 of 2005 for comparing the signature of Ex.B1 viz., the receipt with admitted documents of the plaintiff and that petition was allowed by the Lower Court and the Lower Court passed the following order " TAMIL" 2. Therefore, it is seen from the Lower Court order that the parties are directed to produce the contemporaneous document for a comparison. Later on, the defendant filed an application in I.A.No.288 of 2008 stating that the she is not able to get the contemporaneous document executed by the plaintiff and therefore, the signature in Ex.B1, which is disputed by the plaintiff could be compared with the admitted signature of the plaintiff, in the plaint as well as in the vakalat, that application was dismissed by the Lower Court, holding that in I.A.No.504 of 2006, an opportunity was given to the defendant to produce the signature of the plaintiffs contemporaneous document dated 02.03.2004 and in that application, the defendant did not pray for comparing the signature of the plaintiff found in the vakalat or in the plaint with that of the Ex.B1 and therefore, in I.A.No.504 of 2006 no order has been passed to compare the signature of the plaintiff found in vakalat and in the plaint with the disputed signature found in Ex.B1., and if the revision petitioner is aggrieved, she would have filed revision against the said order and without filing the revision, the present application is not maintainable. Aggrieved by the same, this revision is filed. 3. It is contended by Ms. P.T.Asha, the learned counsel appearing for the revision petitioner that the she was not aggrieved by the order passed in I.A.No.504 of 2006 and she tried her best to get the documents executed by the plaintiff in and around the date of execution of Ex.B1, viz., 02.03.2004 and since she was not able to get the document, the present application is filed for comparing the signature found in Ex.B1, with that of the admitted signature of the plaintiff in the plaint and vakalat in the suit. 4. On the other hand, Mr.K.Muthukumarasamy, the learned counsel appearing for the respondent submitted that the document which was marked as Ex.B1, is a created document and though it was stated in the written statement, the document was not produced along with the written statement and subsequently, it was filed and the Lower Court has directed to compare the signature found in Ex.B1, with that of contemporaneous document and without filing any contemporaneous document, it is not open to the revision petitioner to file another application for comparing the signature of the plaintiff found in Ex.B1, with that of the signature found in the plaint as well as in the vakalath. He has further submitted that if the revision petitioner is aggrieved by the order passed in I.A.No.504 of 2006, she ought to have taken the matter on revision and therefore, the consequent application for the very same relief is not maintainable. The learned counsel for the respondent also relied upon the judgments of this Court reported in 2008 (3) M.L.J 168 in [ (Sakthivel Vs. Dhandapani) ( Mad-N O C) ] and 2009 (5) L..W. 271 in (Xavier (deceased), X.Herald Vs. Vaidooriyam & 8 others) in which it has been held that the disputed signature can be compared with admitted signature and not the admitted signature obtained subsequent to the date of the disputed signature and therefore, signature found in Ex.B1, cannot be compared with the signature found in the pliant as well in the vakalath, as they came into existence at a later point of time. 5. Heard both sides. 6. 5. Heard both sides. 6. It is not doubt true that the signature found in the disputed document has to be compared and the same can be compared with the documents which are executed in and around the same period or prior to the execution of that document. Further, in all such cases, the person, who disputes his signature will file an application to compare the signature found in the disputed document with that of his admitted signature. Under those circumstances, the Courts have held that the admitted signature must been come into existence, prior to the date of the disputed signature. But, in this case, the defendant produced the document alleged to have been signed by the plaintiff and the plaintiff disputes his signature in that document. The defendant for the purpose of comparing the signature of the plaintiff found in that document filed I.A.No.504 of 2006 to compare the signature found in Ex.B1, with that of the document containing admitted signature of the plaintiff. That petition was ordered by the Lower Court directing the parties to produce contemporaneous documents. As rightly submitted by the learned counsel for the revision petitioner, it is not possible for the revision petitioner to produce the contemporaneous document or document executed by the plaintiff prior to the Ex.B1, and if at all any documents were executed by the plaintiff in and around 02.03.2004 or earlier to that, the plaintiff must be having those documents in his possession and the plaintiff would have produced those documents to prove that the signature found in those documents is different from the signature found in the disputed in Ex.B1. 7. Hence, when the plaintiff is not able to produce those documents, one cannot except the defendant to produce such documents to prove the signature found in Ex.B1, as that of the plaintiff. Further, as per the judgments referred to above , though the signature found in the disputed documents must be compared with the admitted signature as stated supra, when the signature is disputed by the party and when he filed an application for comparison, the Courts have held that the disputed signature can be compared only with the earlier document and not with the documents, which were executed at a later point of time. But, in this case, the plaintiff has not come forward with the application to compare the signature found in Ex.B1, and that the defendant has come forward with the application to send the document for comparison with that of the admitted signature of the plaintiff. The plaintiff has admittedly, signed in the vakalath as well as in the plaint and therefore, taking into consideration the facts and circumstances of the case, in the absence of another document executed by the plaintiff in and around 02.03.2004 or earlier to that there is no other way to compare the signature of the plaintiff except with the admitted signature found in the plaint as well as in the vakalath. Therefore, the Lower Court ought to have directed that the signature found in Ex.B1, has to be compared with the admitted signature of the plaintiff in the plaint as well as in the vakalath. Further, having allowed the application in I.A.No.504 of 2006, for comparison, the Lower Court ought to have allowed the application and ought to have directed the Expert to compare the signature found in Ex.B1 along with the signature found in the plaint and in the vakalat signed by the plaintiff. Therefore, the order passed by the Lower Court is set aside and the Lower Court is directed to appoint an Expert and the Expert is directed to compare the signature found in Ex.B1, along with the signature of the plaint as well as in the vakalath and on the basis of the Experts report , and after giving opportunity to the parties to adduce further evidence, the case can be disposed of. 8. The Lower Court is directed to appoint an Advocate Commissioner to compare the signature of the plaintiff as stated above with the help of an Expert within a period of two weeks from the date of receipt of a copy of this order and shall dispose of the same within a period of four weeks from the date of the report from the Expert. The Lower Court is also directed to dispose of the suit on merits without being influenced by any of the observation made in this revision. 9. With these observations, this revision is disposed of. However, there shall be no order as to costs.