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2012 DIGILAW 2808 (MAD)

M. Arumugam v. S. N. Ranganathan

2012-07-04

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 03.08.2011 passed in I.A.No.370 of 2009 in A.S.No.138 of 2005, by the learned First Additional Subordinate Judge, Coimbatore, this civil revision petition is focussed. 2. A thumbnail sketch of the germane facts in a few broad strokes, could be encapsulated thus: The revision petitioner herein filed the suit O.S.No.1739 of 2004 seeking recovery of money. Ultimately after contest, the decree was passed, as against which appeal A.S.No.138 of 2005 was filed by the respondents/appellants/defendants herein. According to the learned counsel for the respondents/appellants/defendants, appeal notice was served through RPAD, however the learned counsel for the revision petitioner would state that the purported signature in the postal acknowledgment is not that of his client. The lower Court dismissed the I.A.No.370 of 2009 which was filed to get the delay of 1247 days condoned in filing the application to get set aside the ex parte decree passed in the A.S., which was dismissed purely based on the comparison made by the Court relating to the admitted signature of the plaintiff with that of his purported signature in the acknowledgement card and that too, without furnishing any reason. 3. Being aggrieved by and dissatisfied with the said dismissal order in I.A.No.370 of 2009, this revision has been focussed on various grounds. 4. The learned counsel for the petitioner would implore and entreat that the valuable right of the plaintiff should not be set at nought by simply refusing to condone the delay in filing the application to get the ex parte decree passed in A.S. and that too purely based on comparison of the purported signature with the admitted signature of the revision petitioner by the appellate Court. 5. Whereas, the learned counsel for the appellants/defendants would pyramid his argument by contending that absolutely there is no merit in this revision, for the reason that four years after the passing of the decree in O.S.No.1739 of 2004, the E.P. was filed and even before filing of such E.P. by the revision petitioner herein, the appellate Court set aside the judgment in O.S.1No.1739 of 2004 and the revision petitioner cannot feign or play possum as though no notice was served in the A.S. Accordingly, he would pray for the dismissal of the revision petition. 6. 6. The point for consideration is as to whether the lower appellate Court was justified in dismissing I.A.No.370 of 2009 after comparing the purported signature of the revision petitioner in the postal acknowledgement with that of his admitted signature? 7. I would like to fumigate my mind with the following decision of the Hon'ble Apex Court reported in (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another]; certain excerpts from it would run thus: "16. When there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. 17. The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. 17. The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal. 19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of Pws. 1 to 3. We therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference." 8. A mere poring over and perusal of the cited precedents supra would reveal that the Court was not expected to simply by resorting to Section 73 of the Indian Evidence Act hold that the Court had got subjectively satisfied relating to the genuineness of the disputed signature. In this case, the order of the lower appellate Court would reveal that without assigning any reason whatsoever, the appellate Court gave finding relating to the genuineness of the disputed signature in the postal acknowledgement. Wherefore, such a finding is untenable. However, taking into account the fact that the suit itself was for recovery of a sum of Rs.27,167/-and that the revision petitioner is only seeking an opportunity of being heard in the appeal, I am of the view that a strict approach is not required. Taking a lenient view, I am of the considered opinion that the delay of 1247 days could be condoned, subject to payment of Rs.2,000/-(Rupees two thousand only) payable by the petitioner to the respondents, within a period of one week from the date of receipt of a copy of this order. On such compliance, the appellate Court shall do well to see that the appeal is taken and disposed of within a period of one month thereafter. Both sides shall co-operate with the appellate Court. With the above direction, this civil revision petition is disposed of. No costs.