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2012 DIGILAW 2464 (MAD)

Thangavelu v. R. Natesan

2012-06-15

G.RAJASURIA

body2012
JUDGMENT :- 1. Animadverting upon the order dated 9.2.2012 passed by the Principal District Court, Namakkal, in I.A.No.2 of 2012 in A.S.No.105 of 2011, this civil revision is filed. 2. Heard both sides. 3. The facts as stood uncurtained in this matter could succinctly and precisely be set out thus: (i) O.S.No.18 of 2008 was filed by the revision petitioners herein for declaration and for injunction in respect of an immovable property. During the pendency of the suit, expert opinion was obtained in respect of the purported signature of the Power of Attorney of the vendor in the concerned sale deed, executed in favour of D1 and D2 therein. Subsequently, the suit was decreed in favour of the plaintiffs. (ii) D1 and D2 filed the appeal in A.S.No.105 of 2011 as against the judgment and decree passed in the said suit. The said A.S. is still pending. (iii) While so, I.A.105 of 2011 in A.S.No.105 of 2011 was filed by the same D1 & D2 for getting the left thumb impression of the executant of the aforesaid sale deed, which was executed in their favour and it was allowed on 23.12.2011, As against which, C.R.P. was filed for nothing but to be dismissed. (iv) Thereafter, it appears, Dw4-the person who purportedly executed the impugned sale deed appeared for the purpose of giving his left thumb impression to the Sub-Registrar concerned, as per the the earlier order dated 23.12.2011 passed in I.A.No.105 of 2011 and at that time, the learned counsel for the defendants 1 and 2 was present, but the counsel for the plaintiffs was not present. Even then, the Sub-Registrar purportedly obtained the left thumb impression of D.W.4 and sent it to the Court; whereupon the Court, passed the order, vide order dated 9.2.2012 in I.A.No.2 of 2012, for sending the thumb impression in the said sale deed concerned, to the expert. 4. Being aggrieved by and dissatisfied with the order dated 9.2.2012 passed in I.A.No.2 of 2012, this revision has been filed on various grounds. 5. The learned counsel for the revision petitioners/plaintiffs would pyramid his argument by contending that absolutely there is no authenticity in the process of obtaining the left thumb impression of D.W.4 as it was purportedly taken in the absence of the counsel for the plaintiffs and that itself is against the order dated 23.12.2012 passed in I.A.No.105 of 2011. 6. 5. The learned counsel for the revision petitioners/plaintiffs would pyramid his argument by contending that absolutely there is no authenticity in the process of obtaining the left thumb impression of D.W.4 as it was purportedly taken in the absence of the counsel for the plaintiffs and that itself is against the order dated 23.12.2012 passed in I.A.No.105 of 2011. 6. Whereas, the learned counsel for the respondents/D1 & D2, in a bid to make mincemeat of the argument as put forth by the learned counsel for the revision petitioners would pilot his arguments, which could tersely and briefly be set out thus: (i) D.W.4 is normally residing in Malaysia and only for the purpose of giving his sample left thumb impression, he came over to India, but on that day there was boycott of the Court by the Advocates and since he was bound to return back to Malaysia on the same day evening, he appeared on the same day before the Sub-Registrar concerned; however, the learned counsel for D1 and D2 was present, but the counsel for the plaintiffs was absent. (ii) There was no fault on the part of the defendants or D.W.4 in that process. 7. At this juncture I would like to refer to Section 73 of the Indian Evidence Act. "Sec.73. Comparison of signature, writing or seal with others admitted or proved – In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions. 8. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger-impressions. 8. A mere poring over and perusal of the above provision would unambiguously and unequivocally, pellucidly and palpably highlight and spotlight, in addition to shed lighting the fact that it is the duty of the Court to see that the thumb impression is taken in the presence of the Judge in the Court and it cannot be delegated. The law empowered the Judge, under Section 73 of the Act, to take such thumb impression for comparison purpose. 9. At this juncture, my mind is reminiscent and redolent of the following maxims: (i) 'Delegata potestas non potest delegari' – A delegated authority cannot be delegated; a delegated power cannot itself be delegated. (ii) 'Delegatus non potest delegdare' – A delegate (or deputy) cannot appoint another; a delegate cannot himself delegate. 10. Unless law empowers the Judge to delegate his function, it cannot be delegated to any other person. The Sub-Registrar of documents, in the process of the Court exercising power under Section 73 of the Act, is having no role to play at all and this fundamental principle was not at all taken note of by the appellate Judge concerned, while passing the order. 11. To say the least, this sort of practice should be deprecated in unmistakable terms and it should not be repeated. 12. The Sub-Registrar should not have taken the purported thumb impression of D.W.4 in the absence of the counsel for the plaintiffs concerned, because the direction of the Court was only to the effect that such thumb impression should be taken in the presence of both side advocates and not in the absence of any one. The lower Court should have considered that aspect also, but failed to consider it and simply passed the order dated 9.2.2012, warranting quashment at the hands of this Court. 13. Wherefore, the order dated 9.2.2012 passed in I.A.No.2 of 2012 is set aside and the Principal District Court, Namakkal is directed to adhere to the following procedure. The lower Court should have considered that aspect also, but failed to consider it and simply passed the order dated 9.2.2012, warranting quashment at the hands of this Court. 13. Wherefore, the order dated 9.2.2012 passed in I.A.No.2 of 2012 is set aside and the Principal District Court, Namakkal is directed to adhere to the following procedure. The appellate Court Judge, namely, the Principal District Judge, Namakkal, in the open Court, in his presence, shall take the left thumb impression of D.W.4 on he being directed to appear in his Court directly, as per Section 73 of the Indian Evidence Act, and thereafter, the sample left thumb impression so taken shall be sent to the expert concerned through the Commissioner with the concerned documents, as per the usual practice. 14. Accordingly, the matter shall be processed. For appearance of D.W.4, the learned Judge concerned shall issue summons or direction fixing a date for his appearance, after ascertaining from both sides their convenience to appear before the Court. 15. The plaintiffs shall bear half of the to and fro expenses, so to say, half of the air travel expenses (economic class) of D.W.4 between Malaysia and Chennai and that cost shall be paid by the plaintiffs immediately to D.W.4 on his appearing before the Court, for which course both sides agreed before me. 16. The civil revision petition is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.