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2012 DIGILAW 144 (MAD)

D. Janaki v. S. Jayalakshmi

2012-01-09

R.SUDHAKAR

body2012
Judgment :- 1. This Civil Revision Petition is preferred challenging the order and decreetal order dated 18.7.2011 passed in C.M.P.No.817 of 2011 in A.S.No.367 of 2010 on the file of the V Additional Judge, City Civil Court, Chennai. 2. Heard Mrs.V.Yamunadevi, learned counsel appearing for the petitioner and Mr.N.Manoharan, learned counsel appearing for the respondent. 3. Defendant is the revision petitioner. The suit O.S.No.3522 of 2007 was filed on 14.6.2007 for recovery of money lent on a promissory note. In the trial Court, the respondent/plaintiff was examined as P.W.1 and marked Exs.A-1 to A-3 as follows:- Ex.A-1 is the promissory note dated 1.4.2006, Ex.A-2 is the Advocate notice issued by the plaintiffs counsel to the defendant and Ex.A-3 is the postal acknowledgment card of the defendant. On behalf of the revision petitioner/defendant, the defendant was examined as D.W.1 and Exs.B-1 to B-7 were marked and they are not relevant for the present issue. At the instance of the plaintiff, the court below examined one Mrs.Krishnakumari, Assistant of E.S.I. Hospital and marked Ex.X-1 series (four in number), viz., attendance register at the office of the employer of the revision petitioner/defendant signed by her in English; Leave Letter of the revision petitioner/defendant signed in Tamil, Service Records extract showing the signature of the revision petitioner/defendant signed in English and other relevant documents containing the signature of the revision petitioner/defendant 4. No expert evidence was let in by the respondent/plaintiff, except summoning the above documents relating to the signature of the revision petitioner/defendant. The trial Court dismissed the suit inter alia stating that the revision petitioner/defendant had specifically denied the signature. Therefore, the plaintiff should have filed an application to summon the handwriting expert for opinion which has not been done. The defendant was in the habit of signing both in English and in Tamil. Therefore, the plaintiff has to prove his case. On this and on other grounds, the suit was dismissed. 5. An appeal in A.S.No.367 of 2011 has been filed in August, 2010 and in June 2011 plaintiff filed C.M.P.No.817 of 2011 to appoint an Advocate Commissioner and to take the service records and other documents marked as Ex.X-1 series and the disputed signature in Ex.A-1 to the Forensic Department for comparison and to verify the signature. This application was filed under Section 45 of the Indian Evidence Act read with Order 26 Rule 1 and Section 151 CPC. This application was filed under Section 45 of the Indian Evidence Act read with Order 26 Rule 1 and Section 151 CPC. A counter has been filed by the revision petitioner-defendant. The appellate court allowed the application holding that the application is filed for the first time. Challenging the same, present revision petition has been filed. 6. Learned counsel for the revision petitioner/defendant raised the following objections:- (1) The application I.A.No.817 of 2011 filed for verification of the disputed suit document with other admitted signatures by the forensic expert is an afterthought having failed in the suit. (2) It is sufficient for the court to compare and come to the conclusion with regard to the disputed signature with the admitted signature. Therefore, it is not necessary to refer the matter to handwriting expert. (3) Having sent for official records, the respondent/plaintiff could have filed an application to summon the handwriting expert to let in evidence as well before the trial court which was not done. 7. Learned counsel for the revision petitioner/defendant relied upon the following decisions:- (1) K.R.Mohan Reddy - vs. - Net Work INC. reported in (2008) 1 MLJ 1253 (SC), (2) Basayya I. Mathad - vs. - Rudrayya S.Mathad (SC) reported in 2008(1) CTC 537 and (3) R.Elango - vs. - K.Dhanasekaran reported in (2008) 8 MLJ 299 , wherein this court held in para 9 as follows:- “(9.) A handwriting expert opinion is of weak value but it shall be considered along with all other relevant facts and materials. An expert never supplants the view of the Court, for the Courts power to compare the signatures and form its opinion is paramount and rooted in statute through Section 73 of the Indian Evidence Act. (See Ram Narain v. State of Himachal Pradesh (1974)1 MHLJ 297(SC)). The Court itself shall not assume the role of an expert (Chandran Udayar v. Kasivel (2008) 3 MLJ 897 ; (1997)1 MLJ 304 ). If the Court finds it difficult to assess it on comparison of signatures, it may take steps to secure an experts opinion (Govindaraj v. Dr.Nallasivam (supra).” 8. The Court itself shall not assume the role of an expert (Chandran Udayar v. Kasivel (2008) 3 MLJ 897 ; (1997)1 MLJ 304 ). If the Court finds it difficult to assess it on comparison of signatures, it may take steps to secure an experts opinion (Govindaraj v. Dr.Nallasivam (supra).” 8. Learned counsel for the respondent/plaintiff on the other hand contended that the application I.A.No.817 of 2011 has been filed in terms of Section 45 of the Indian Evidence Act, which reads as follows:- “(45.) Opinions of experts:- When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of hand-writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.” The application is not filed under Order 41 Rule 27 CPC. There is no question of letting in additional evidence. The reason for seeking the opinion of expert is on the ground that the court below failed to give a finding with regard to the admitted signature with the disputed signature in clear terms. Therefore, it has become necessary for the plaintiff to file the application to get the expert opinion on the documents already on record. 9. He further stated that the power of the appellate court either on its own motion or on the application to get expert opinion has been considered and accepted by this Court in several decisions which are as follows:- (1) K.R.Chinnasamy - vs. - K.R.Chinnasamy reported in 2011(2) MWN (Civil) 637 following the earlier decision in N.Chinnasamy vs. P.S.Swaminathan reported in 2006 (4) CTC 850, (2) Palaniammal - vs. - Palaniswami reported in (2003)3 MLJ 408 and (3) K.V.Easwaran and another - vs. - T.S.T.Anand reported in 2005(1) T.N.L.R 516 (Mad.). 10. At the outset, it has to be pointed out that the order under challenge passed by the first appellate court in the interlocutory application is not a non speaking order, but a detailed order after considering the rival contentions. The reasons have been clearly spelt out by the first appellate court as to why the application filed is being considered. To give a precise view of the same, the relevant portion of the order is extracted hereunder:- “8) ..... The reasons have been clearly spelt out by the first appellate court as to why the application filed is being considered. To give a precise view of the same, the relevant portion of the order is extracted hereunder:- “8) ..... No doubt, the court for its decision may look in to the documents for comparison and may come to a conclusion whether it tallies with the signature or not but it does not mean that the court should first look in to the document and give its opinion and if it is satisfied then only the said documents shall be referred to an expert. In the instant case, the petitioner/appellant had summoned the official records pertaining to the respondent/defendant to find out the signature and produce before the court for its satisfaction in order to look in to the documents for comparison and to come to a conclusion whether it tallies with the signature or not. As adverted supra, it does not mean that the court should first look in to the documents and gives its opinion. 9) The learned counsel for the petitioner/appellant in a categorically terms had submitted that even if the disputed documents and the admitted documents are looked in to with a naked eye one could easily had stated that the signature found in the admitted documents and in the disputed documents are of the one and the same person. In the instant case, the learned II Assistant Judge, City Civil Court, is not in a position to arrive the conclusion that those signatures are of the one and the same person. Therefore, the documents should have referred to an expert on the basis of the requisition submitted by the party who goes to prove the execution of Ex.A-1 promissory note. Admittedly, no such application has been filed by the petitioner/appellant before the trial court and this is the very first time had moved the petition. Therefore, there is no bar to refer the documents for comparison. 10) For the reasons stated above, the point is answered to that effect that the petitioner has shown sufficient cause to appoint advocate commissioner to get the admitted documents and the disputed documents compared by handwriting expert of Forensic Sciences Department, Mylapore, Chennai.” 11. Therefore, there is no bar to refer the documents for comparison. 10) For the reasons stated above, the point is answered to that effect that the petitioner has shown sufficient cause to appoint advocate commissioner to get the admitted documents and the disputed documents compared by handwriting expert of Forensic Sciences Department, Mylapore, Chennai.” 11. Prima facie, the first appellate Court has allowed the application on the ground that the trial court has not given a positive conclusion on the signature, namely, the disputed signature in Ex.A-1 which is in Tamil and the admitted signatures in Ex.X-1 series, two of which is in English and one in Tamil. Though the trial court has power under Section 73 of the Indian Evidence Act to verify the signatures, since no clear finding has been given, the appellate Court thought it fit to accept the plaintiffs plea for expert opinion on the documents already marked before the trial Court. This exercise by the appellate court cannot be stated as letting in additional evidence in terms of Order 41 Rule 27 CPC., because it is the primary duty of the court to decide as to whether the disputed signature and the admitted signature were signed by one and the same person. The court has power to compare the signatures and form its opinion under Section 73 of the Indian Evidence Act. However, if the court finds it difficult to assess it on comparison of signatures, then it may take steps to secure an experts opinion and that was confirmed vide decision in Govindaraj - vs.-Dr.Nallasivam reported in (2008)4 MLJ 476. 12. As to the power of the appellate court to send the documents for experts opinion, there appears to be no bar and that has been consistently held by this court in several decisions, viz., in N.Chinnasamy - P.S.Swaminthan reported in 2006(4) CTC 850 and it was followed in K.R.Chinnasamy - vs. - K.R.Chinnasamy reported in 2011(2) MWN (Civil) 637 in para 19 and it reads as follows:- “(19.) In N.Chinnasamy v. P.S.Swaminathan, 2006(4) CTC 850 , Mr.Justice S.Rajeswaran, after referring to various decisions of this Court and the Apex Court and other High Courts has laid down several principles and guidelines to be followed wen the Defendant denies his signature in the written statement. The following are some of the guidelines laid down therein. The following are some of the guidelines laid down therein. “(10.) Merely because of the reasons that the Trial Court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar or ban for the First Appellate Court for sending the documents to get the expert opinion. (11.) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document. (12.) When the Defendant denies the signature in a particular document which is very much relied on by the Plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert.” 13. No prejudice will be caused to the revision petitioner/defendant, as the evidence of the expert is only advisory in character. It is primary duty of the court to form an opinion after getting such an opinion and that is the scope of Section 45 of the Indian Evidence Act as has been stated by the Apex Court in State of H.P. - vs. - Jai Lal and others reported in AIR 1999 Supreme Court 3318, para 17 and 18 reads as follows:- “(17.) Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. (18.) An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.” 14. For the reasons given by the first appellate court in the interlocutory application, which has prima facie come to the conclusion that the trial court did not give a positive conclusion on the admitted and the disputed signature in spite of exercise of power under Section 73 of Indian Evidence Act, the application filed by the respondent/plaintiff was accepted. Therefore, the first appellate court has rightly exercised its power under Section 45 of the Evidence Act so as to enable it to form an opinion as to the genuineness of the handwriting which is disputed by the revision petitioner/defendant. Section 45 of the evidence Act clearly gets attracted to the facts of the present case and the application and the order passed by the first appellate court in the interlocutory application is justified. For the reasons stated in the order under challenge, this court finds no irregularity or error of law to interfere with the order under challenge. 15. Finding no merit, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 16. For the reasons stated in the order under challenge, this court finds no irregularity or error of law to interfere with the order under challenge. 15. Finding no merit, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed. 16. In order to get rid off the fear of the revision petitioner/defendant that the application is filed to protract the litigation, the court below is directed to follow the procedure prescribed in paras 37 and 38 of the decision in K.R.Chinnasamy - vs. -K.R.Chinnnasamy reported in 2011(2) MWN (Civil) 637, which reads as follows:- “(37.) Further, in the light of certain guidelines given in the decision reported in Muniraj v. Velu, 2009(2) MWN (Cr.) DCC 88, the Court below is hereby directed to send for the document mentioned in I.A.No.50 of 2006 and after the said document is received in Court, the lower Court shall appoint an Advocate Commissioner for the following purposes: a. To carry the relevant documents in connection with this case personally in a sealed cover, b. and produce the same before the Forensic Expert, c. leave it in his custody under his acknowledgment for as many days as the Forensic Expert may require; d. collect the record from the Forensic Expert on the day as may be fixed by him; and e. bring it back and lodge it with the Court. (38.) The lower court shall direct the Forensic Expert to complete the examination of the signatures within ten days from the date of depositing the same by the Advocate Commissioner.”