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2012 DIGILAW 3248 (MAD)

Selvaraja Achari v. M. Rajeswari

2012-07-24

M.VENUGOPAL

body2012
Judgment :- 1. The Revision Petitioner/Plaintiff has projected the present Civil Revision Petition as against the order dated 02.12.2009 in I.A.No.11191 of 2009 in O.S.No.7842 of 2006 passed by the Learned XVII Assistant Judge, City Civil Court, Chennai. 2. The Learned XVII Assistant Judge, City Civil Court, Chennai, while passing the orders in I.A.No.11191 of 2009 in O.S.No.7842 of 2006 on 02.12.2009, has observed in paragraph 8 to the effect that 'However the court has ample powers to compare the signatures in the alleged documents and came to a conclusion. In the present suit evidence on both sides were closed and the suit was posted for argument. Hence as trial has been commenced and document have been marked, the sale agreement Ex.A8, vakalat of the defendant and deposition of Chandran should not be sent out of the custody of the Court and hence dismissed the application without costs.' 3. The Learned Counsel for the Petitioner/Plaintiff submits that the trial Court primarily considered only the safety aspect of the documents and that in reality, it ought to have adopted a safe procedure to send the documents to the Handwriting Expert. 4. Finally, it is the contention of the Learned Counsel for the Petitioner that the reason ascribed by the trial Court in dismissing the Interlocutory Application is totally invalid and without appreciation of the legal principles laid down by the Hon'ble High Court. 5. The Learned Counsel for the Petitioner places reliance on the decision of the Hon'ble Supreme Court in S.KaladeviV. V.R. Somasundaram and others, AIR 2010 Supreme Court 1654 at page 1655 wherein it is laid down as follows: "The main provision in S.49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effect by registered instrument. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effect by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/-and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to S.49. S.3(b) of Specific Relief Act (1963) provides that nothing in 1963 Act shall be deemed to affect the operation of 1908 Act, o documents. By admission of an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, none of the provisions of 1908 Act is affected; rather Court acts in consonance with proviso appended to S.49." 6. He also seeks in aid of the decision of this Court in SelvamV. Mohamad Gani, 2008 (5) CTC 206 wherein it is held as follows: "As rightly contended by the learned counsel for the petitioner, the suit is merely one for recovery of money. It is not a Suit for fore closure. Therefore the petitioner wanted to rely upon the document in question, just for the purpose of establishing the loan transactions between the parties. In such circumstances, when the petitioner is not suing on an unregistered mortgage deed, the Court below ought to have accepted the document to be marked in evidence. This is a settled position in law. Therefore, the Court below was wrong in rejecting the Application." 7. The Learned Counsel for the Petitioner relies on the decision of this Court in P.NatarajanV. This is a settled position in law. Therefore, the Court below was wrong in rejecting the Application." 7. The Learned Counsel for the Petitioner relies on the decision of this Court in P.NatarajanV. Parasuraman and another, (2009) 4 MLJ 751 at page 752 whereinin paragraph 8 and 9, it is observed as follows: "8.In this case, peculiarly the plaintiff has not taken any steps to secure the ante litem motem signature of the defendant concerned for which, the learned counsel for the plaintiff would submit that as a plaintiff, he did not have had any opportunity of knowing about the ante litem motem signature and it is for the defendant to voluntarily place his signatures before the Court; whereupon the plaintiff would pray for referring the disputed signature to the expert for comparing the same with the ante litem motem signature of the defendant. No steps has been taken at all by the plaintiff, in that regard. It appears the party was not posted with such measures to be taken. 9. Hence, one more opportunity could be given to the plaintiff to try to secure the ante litem motem signature of the defendant and the defendant is also directed to furnish from his own endeavour his anti litem motem signatures. The lower Court, after furnishing of such particulars by the defendant, refer the matter to the expert for opinion." 8. Apart from the above, the Learned Counsel for the Petitioner cites the following decisions: (a) In R.Pannerselvam V. A.Subramanian and another, (2009) 4 MLJ 399 , in paragraph 14 and 15, it is held as follows: "14. The question arises as to whether the Court can pick holes in the case of the defendant and grant decree in favour of the plaintiff. The answer is at once clear that the plaintiff should prove his case. In view of the trite proposition of law that the plaintiff has to stand or fall on his own pleadings and evidence. It is has to be seen as to whether the plaintiff proved his possession. 15. The answer is at once clear that the plaintiff should prove his case. In view of the trite proposition of law that the plaintiff has to stand or fall on his own pleadings and evidence. It is has to be seen as to whether the plaintiff proved his possession. 15. As such, the defendant's own witness D.W.3, who happened to be the Panchayat President clearly and categorically pointed out that the defendants have not been in possession and enjoyment of the suit property at any point of time and as such, it is crystal clear that the defendants have falsely pleaded as though they are in possession of the suit property and that enures to the benefit of the plaintiff in proving his case that he has been in possession and enjoyment of the suit property." (b) In V.K.Sridhar V. C.R.Shankar & another, AIR 2010 (NOC) 697 (MAD.), it is, inter alia, held that 'Though Court can embark upon process of comparison of signature u/S.73 of the Indian Evidence Act, opportunity sought for by the plaintiff to establish the signature should be given and the act of Court sending the document to experts for comparison is proper'. (c) In ChandranUdayar V. Kasivel, 2009-2-L.W.611 at page 612, it is held as follows: "It cannot be gainsaid that an expert opinion is nonetheless opinion evidence. As a matter of fact, the power of court to compare signatures should be sparingly used and with caution. It is true that opinion of a handwriting expert is relevant as per Section 45 of the Evidence Act, but that too is not conclusive. There can be no doubt that an expert witness in an adversary litigation can furnish information to the judge on matters calling for expertise." 9. In response, it is the submission of the Learned Senior Counsel for the Respondent/Defendant that the Respondent/Defendant had denied that she executed the Sale Agreement dated 16.06.1995 and also denied the other plea of the Petitioner/Plaintiff that her husband Chandran had signed as a witness in the agreement. As a matter of fact, it is further contended that she never agreed to sell the property and there was no necessity to enter into any agreement. 10. As a matter of fact, it is further contended that she never agreed to sell the property and there was no necessity to enter into any agreement. 10. According to the Learned Senior Counsel for the Respondent/ Defendant that the unstamped Sale Agreement dated 16.06.1995 was marked subject to objection in the main suit, where the stage is now set for advancement of arguments on both sides. Furthermore, the Respondent/Defendant's husband Chandran admittedly is not a party in O.S.No.7842 of 2006 before the trial Court and also that he was examined as D.W.2 and denied his signature of attestation in the said Sale Agreement. Therefore, the plea of the Respondent/Defendant is that Ex.P.8-Unstamped Agreement is of no relevance to arrive at a decision in the main suit. 11. The Learned Senior Counsel for the Respondent/Defendant cites the decision of this Court in Yasodammaland another V. Janaki Ammal, AIR 1968 Madras 294 wherein it is held that 'Even if a contesting party is in wrongful possession of unstamped document, since Section 35 of the Indian Stamp Act, 1899 operates as clear bar, relief cannot be granted to other party on the ground that it was not able to validate document by payment of penalty'. 12. She also relies on the decision in ManickamV. Chinnasamy and 6 others, 2011 (5) CTC 206 , wherein in paragraph 19 to 21, this Court has observed as follows: "19. It is to be borne in mind that the objections/questions as to the admissibility of a certain document ought to be determined by a Court of Law, when they come up for consideration or determination instead of admitting the evidence in the first instance tentatively and observing the questions till the completion of the trial of the case. Ruling as to the admissibility of a document to be received in evidence must be short one. If the ruling is rendered by a Court of Law, then, there should not be any further hindrance of the conduct of a trial. If need be, a fuller reason may be given in the Judgment as per decision Ponnammal Ammal V. Modern Stores, Tirunelveli through Partner Mahadev Iyer and others, AIR (37) 1950 Madras 62. 20. An objection that the mode of proof is irregular or initial should be taken before the document is admitted. If need be, a fuller reason may be given in the Judgment as per decision Ponnammal Ammal V. Modern Stores, Tirunelveli through Partner Mahadev Iyer and others, AIR (37) 1950 Madras 62. 20. An objection that the mode of proof is irregular or initial should be taken before the document is admitted. When a document is exhibited before the trial Court, a party against whom it is being brought on record is entitled to question it on the ground of its inadmissibility if after the admission of a particular document it is later on found to be an irrelevant or inadmissible one, in the eye of law, it may be rejected at any stage of the suit as per Order 13 Rule 3 of Civil Procedure Code. 21. It is the duty of a Court of Law to exclude all irrelevant or inadmissible evidence even if no objection has been taken by the opposite side." Also, this Court, in the aforesaid decision, in paragraphs 24, 31, 32 and 34, has laid down as follows: "24. The general plea in law is that an objection must be raised before the document is admitted during the course of the trial. However, if a document which cannot be admitted into evidence because of the impediment in law but the same is admitted into evidence without objection, always it is open to a Court of Law to arrive at a finding that the said document is legally inadmissible one. 31. As per Section 35 of the Indian Stamp Act dealing with instruments not duly stamped inadmissible in evidence etc., a Court of Law has an independent liability to decide the question of stamp duty, even if the parties fail to take up the point as per decision Gita Devi Shah V. Chandra Moni Karnani, AIR 1993 Calcutta 280, 284. 32. Generally, when an issue as to the admissibility of a document is raised on the footing that it has not been stamped or has not been properly stamped it has to be decided then and there when the document has been tendered in evidence. When a dispute/ controversy is raised as to the admissibility of a stamped document, the person challenging the admissibility of the said document ought to be vigilant in not allowing the said document to be marked or admitted in evidence by the Court. 34. When a dispute/ controversy is raised as to the admissibility of a stamped document, the person challenging the admissibility of the said document ought to be vigilant in not allowing the said document to be marked or admitted in evidence by the Court. 34. The bar contemplated by Section 36 of the Indian Stamp Act is not applicable where an instrument has been rejected as an inadmissible in evidence on account of a wrong order of the Court. Indeed, Section 36 of the Indian Stamp Act cannot be construed in such a fashion as to override the ingredients of Section 105 of the Civil Procedure Code, as per decision Mannalal V. Sitambernath, 1961 Jab LJ 851 : 1961 MPLJ 169 ." 13. At this stage, the Learned Counsel for the Petitioner/Plaintiff brings it to the notice of this Court that before the trial Court penalty was paid to Ex.P.8-Sale Agreement and the said document was marked subject to objection. 14. Advancing his arguments, it is the submission of the Learned Counsel for the Petitioner/Plaintiff that the Respondent/Defendant has issued a Lawyer's Notice to the Revision Petitioner/Plaintiff wherein it was mentioned that on 16.06.1995, the Petitioner/Plaintiff entered into an agreement with the Respondent/Defendant to purchase her property viz., the one consisting of house and ground bearing Door No.30/A, Bharathi Nagar 2nd Street, Villivakkam, Chennai – 600 049 for a price of RS.1,20,000/- and further, a sum of Rs.3001/- was paid to the Respondent/Defendant as advance. Moreover, the Petitioner /Plaintiff agreed to pay the balance sum of Rs.1,17,000/- on or before 16.12.1995 and to get the sale deed in respect of the said property executed etc. 15. Also, it is contended on behalf of the Petitioner that in the said Lawyer's Notice, it was stated that the Petitioner/Plaintiff failed to perform his part of the contract and that the Respondent/Defendant was ready and willing to fulfil her part of the contract and therefore, the contract unimplementable on the expiry of the time fixed for the completion of the transaction and also that the advance paid by the Petitioner/Plaintiff stood forfeited etc. 16. 16. The strenuous contention of the Learned Counsel for the Petitioner/Plaintiff is that in the aforesaid Lawyer's Notice dated 29.12.1997 it was mentioned that the Petitioner/Plaintiff was put in possession of a portion of the said premises for residential occupation on 01.01.1996 and the tenancy for the said portion commenced on 01.01.1996 and the monthly rent of Rs.300/- was fixed [exclusive of electricity consumption charges] and that the rent was paid only upto 30.06.1996 and thereafter, there was default in payment of monthly rent commencing from 01.07.1996. 17. Under those circumstances, when the Respondent/Defendant had denied her signature in Ex.P.8-Unregistered Sale Agreement, her husband-Chandran also examined as a witness on the Defendant's side had denied his signature and therefore, his signature, as a first witness in Ex.P.8, had to be necessarily sent for examination by the Handwriting Expert at Forensic Science Laboratory, Chennai - 4 for obtaining an Expert's opinion along with deposition signed by him on 19.01.2009 before the trial Court, in order to find out the truth of the matter in issue. 18. Admittedly, the suit O.S.No.7842 of 2006 was filed by the Petitioner/Plaintiff before the trial Court against the Respondent/ Defendant praying for the relief of Permanent Injunction restraining the Respondent/Defendant, their men, agents etc. from in any way interfering with the peaceful possession and enjoyment of the suit property bearing Old No.19, New No.30/85, Bharathi Nagar 2nd Street, Villivakkam, Chennai – 49. 19. In the main Suit, the oral evidence of witnesses and documentary evidence were let in and marked on both sides before the trial Court. The suit is ready for final disposal by the trial Court. What remains is that the trial Court is to hear the arguments of both sides and to pronounce its final verdict in the main suit. 20. A perusal of the Plaint shows that even though the Petitioner/ Plaintiff had claimed the relief of Permanent Injunction against the Respondent/Defendant, it is evident that the Petitioner/Plaintiff had also averred in para 6 of the Plaint that he had acquired title to Plot No.214 by adverse possession and that the Respondent/Defendant had no right over the superstructure of the house and the Respondent/ Defendant was admitting to dispossess the Petitioner/Plaintiff from the suit property and take possession of the same. 21. 21. The Respondent/Defendant, in the Written Statement, had taken a stand that the Petitioner/Plaintiff projected his claim under his father, who was bound by the decree in O.S.No.569 of 1998 on the file of the XI Assistant Judge, City Civil Court, Chennai and that the said suit ended in dismissal. Subsequently, A.S.No.221 of 2004 was filed on the file of the Learned II Additional Judge, City Civil Court, Chennai, which was also dismissed. In any event, the Petitioner/Plaintiff was only a trespasser. Also, it was denied by the Respondent/Defendant that she had not received Rs.3001/- or any other amount as advance from the Petitioner/Plaintiff and further, he could not seek injunction against the true owner viz., the Respondent/Defendant. 22. As regards the plea of the Petitioner/Plaintiff to direct the Office of the trial Court to transmit Ex.P.8, bearing the signature of A.Chandran (Respondent/Defendant's husband) as first witness along with the depositions signed by him on 19.01.2009, it is to be pointed out that although there is no legal impediment for a Judge employing his naked eyes to compare the disputed writing with an admitted one, he ought to exercise great care, caution and circumspection as a matter of prudence and must be hazy to rest his conclusion/finding mainly on comparison made by himself. The normal right course of action is to obtain an opinion and assistance of an Expert. A Court of Law, indeed, has power to compare the disputed signatures/writings, although, it should not enter into that field, in the considered opinion of this Court. After all an Expert's opinion is an opinion evidence only. It can seldom, if ever, take the place of substantive evidence. Before a Court of Law acting on such evidence, it is its duty to see if it is corroborated either by means of a direct or circumstantial or a corroborated evidence. There is no obligation on a Court of Law to rely on Expert evidence, especially when there is other positive evidence in a given case. The evidence of an Handwriting Expert like any other evidence is to be appreciated, scrutinised in accordance with law and accepted only if it is found trustworthy. The settled view is that an opinion of an Expert cannot be more so reliable than the statement of witness of fact. Also, that a finding cannot be rendered based on the testimony of an Expert alone. 23. The settled view is that an opinion of an Expert cannot be more so reliable than the statement of witness of fact. Also, that a finding cannot be rendered based on the testimony of an Expert alone. 23. In Rajinedr Bajaj V. Indian Tanning Industries, AIR 2008 Delhi 62 (64) [DB], it is held that'Where the Court compared the signatures of the defendant on disputed document with the signatures appearing on written statement and affidavit, and the discrepancies were apparent to the naked eye, the non-examination of the handwriting expert was held of no consequence'. 24. It is noted that the injunction suit filed by the Petitioner/ Plaintiff is not a complete/comprehensive suit. Admittedly, he has not filed a suit for specific performance against the Respondent/Defendant. In an injunction suit, the Petitioner/Plaintiff cannot make an endeavour to claim the relief of suit for specific performance. He has to prove the injunction suit independently. Further, it is not out of place for this Court to make a pertinent mention that a person in exclusive possession cannot be presumed to be a tenant on that score. 25. In view of the fact that the suit O.S.No.7842 of 2006 is admittedly pending for hearing the arguments of both sides and taking note of the fact that Ex.P.8-Sale Agreement was marked subject to objection by the trial Court and also bearing in mind another fact that the Petitioner/Plaintiff had not so far filed any suit for specific performance based on the Sale Agreement dated 16.06.1995 and instead had only instituted the present Suit O.S.No.7842 of 2006 seeking the relief of Permanent Injunction simpliciter against the Respondent/Defendant, this Court, to promote substantial cause of justice, opines that in view of the available oral and documentary evidence on record, it is for the trial Court to render a categorical finding as to the proof, relevancy and admissibility of the Ex.P.8-Sale Agreement. Further, a fuller/detailed reasoning could be assigned by the trial Court at the time of delivering the Judgment in the main suit. Even if a document was marked without objection as to its admissibility, in law, it was open to a Court of Law to render a finding whether it has relevancy and the same is legally admissible one subject to proof in the manner known to law. In law, marking of a document under the Indian Evidence Act, 1872 is one thing. In law, marking of a document under the Indian Evidence Act, 1872 is one thing. To prove the contents of the document is another thing. Merely, marking of a document Ipso facto will not dispense with the proof of the said document. In a suit seeking for the relief of Permanent Injunction by a Plaintiff, as on date of filing of the suit, the Revision Petitioner/Plaintiff must be in possession. It is for the trial Court to render a finding in this regard while delivering Judgment in the pending main Suit O.S.No.7842 of 2006 and therefore, this Court is not expressing any opinion on the merits or otherwise of the case. 26. After hearing the arguments on both sides and when the trial Court delivers the Judgment in the main suit at that point of time, it can deal with the arguments and counter arguments advanced on both sides as regards the admissibility of Ex.P.8-Sale Agreement and also in regard to other facts whether the Sale Agreement dated 16.06.1995 was signed by the Respondent/Defendant and also whether her husband had signed as a first witness in the said document and it is for the trial Court to come to a reasoned, independent, dispassionate and ultimate conclusion by applying its judicial thinking mind. In that view of the matter, there is no compulsion or any necessity or need forcing the trial Court to send Ex.P.8-Sale Agreement to be examined by the Handwriting Expert at Forensic Science Laboratory, Chennai to obtain an Expert opinion [together with the depositions signed by the Respondent/Defendant's husband on 19.01.2009]. Accordingly, the Civil Revision Petition is devoid of merits. 27. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court viz., XVII Assistant Judge, City Civil Court, Chennai dated 02.12.2009 in I.A.No.11191 of 2009 in O.S.No.7842 of 2006 is affirmed by this Court for the reasons assigned in this Revision. Further, the trial Court is directed to take up the main Suit in O.S.No.7842 of 2006 and to hear the arguments on both sides and to pronounce Judgment within a period of two months from the date of receipt of copy of this order. Further, the trial Court is directed to take up the main Suit in O.S.No.7842 of 2006 and to hear the arguments on both sides and to pronounce Judgment within a period of two months from the date of receipt of copy of this order. Liberty is given to both parties to raise all factual and legal pleas/ issues before the trial Court during the course of hearing of the arguments in the main Suit and the trial Court is directed to provide adequate opportunities to both parties in this regard. Consequently, connected Miscellaneous Petition is closed.