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2014 DIGILAW 235 (CAL)

Samir Hait v. Pradip Kumar Ghosh

2014-03-19

SUBRATA TALUKDAR

body2014
Judgment : Subrata Talukdar, J. Challenge in this revisional application is to the Order no.102 dated 30th June, 2010 passed by the Learned 2nd Civil Court (Junior Division) at Diamond Harbour in Title Suit no.54 of 2000. By the said impugned Order the Learned 2nd Civil Court decided the application of the opposite party-defendant dated 29th March, 2010 praying for allowing comparison by expert of his specimen signature with his purported signature as appearing in the acknowledgment due card to the notice of eviction posted to him by the petitioner-plaintiff-landlord under Section 106 of the Transfer of Property Act (for short The T.P. Act). The Learned 2nd Civil Court was pleased to hold as follows:- “such prayer was allowed earlier considering the necessity that as the defendant informed that he cannot sign in English, such Order was recalled but today defendant has stated with affidavit that his earlier information was given wrongly and in ignorance and he can give his English signature. Considering the same I am of the view that another opportunity should be given to the defendant. Hence the petition dated 29th March, 2010 is allowed with costs of Rs.300.” Sri Sandip Das, Learned Counsel has taken us to the facts of this case. Briefly, the facts are as follows:- Petitioners-plaintiffs instituted Title Suit no.54 of 2010 before the Learned 2nd Civil Court (Junior Division) at Diamond Harbour for eviction under Section 106 of the T.P. Act. The opposite party-defendant is a monthly tenant in the suit premises. The suit is one for default in payment of rent. In spite of the determination of the tenancy the opposite party-defendant did not vacate the suit premises. Meanwhile the plaintiff no.2 and her husband gifted the suit property to the plaintiff no.1 by a deed of gift executed and registered on 21st January, 2000. Thus, the plaintiff no.1 acquired title to the suit property and both the plaintiff nos. 1 & 2 have filed the suit. The opposite party-defendant appeared in the suit and filed his written statement. One of the defence taken by the opposite party-defendant is that the plaintiffs are not the owners of the suit property. A second defence is that the signature of the opposite party-defendant as appearing in the acknowledgment due card attached to the notice of eviction under Section 106 of the T.P. Act is manufactured and therefore false. One of the defence taken by the opposite party-defendant is that the plaintiffs are not the owners of the suit property. A second defence is that the signature of the opposite party-defendant as appearing in the acknowledgment due card attached to the notice of eviction under Section 106 of the T.P. Act is manufactured and therefore false. The signature in the acknowledgment due card is in English. On 20th November, 2003 the opposite party-defendant therefore filed an application for appointment of handwriting expert at a stage when evidence in the suit had commenced. By Order no. 42 dated 20th January, 2005 the Learned 2nd Civil Court was pleased to reject the application dated 20th November, 2003 observing that if the appointment of handwriting expert was found necessary the same could always be considered afterwards during the hearing of the suit. Aggrieved by the Order of the Learned 2nd Civil Court dated 20th January, 2005 the opposite party-defendant approached this Hon’ble Court by way of a civil revisional application numbered as CO 1949 of 2005.By Order dated 12th Jule, 2006 an Hon’ble Single Bench of this Court was pleased to dismiss CO 1949 of 2005 holding, inter alia, that no infirmity is found in the Order of the Learned Second Civil Court dated 21st January, 2005. This Hon’ble Court was also pleased to observe as follows:- “It is made clear that the suit should be disposed of as expeditiously as possible without giving unnecessary adjournment to any of the parties.” Thereafter again on 6th December, 2007 the opposite party-defendant filed an application for appointment of handwriting expert for comparison of his purported signature as appearing in the acknowledgement due card. The petitioners-plaintiffs filed their written statement to such application. This time the Learned 2nd Civil Court was pleased to allow the said application of the opposite party-defendant dated 6th December, 2007 for appointment of handwriting expert by its Order dated 28th February, 2008. Two dated were fixed by the Learned 2nd Civil Court for obtaining the specimen signatures of the opposite parties-defendant in open Court. Thereafter Sri Das points out that the opposite party-defendant commenced a game of ducks and drakes qua the pending proceedings. He prayed for adjournment on 7th April, 2008 and 6th May, 2008 pleading that he does not know the English language. Thereafter Sri Das points out that the opposite party-defendant commenced a game of ducks and drakes qua the pending proceedings. He prayed for adjournment on 7th April, 2008 and 6th May, 2008 pleading that he does not know the English language. In such circumstances the petitioners-plaintiffs filed an application on 6th March, 2009 before the Learned 2nd Civil Court for recalling of the Order dated 28th February, 2008 for appointment of handwriting expert and to fix a date for hearing of the suit. The Learned 2nd Civil Court upon contested hearing recalled the Order of appointment of handwriting expert passed on 28th February, 2008 by its Order no. 95 dated 5th February, 2010. The Learned 2nd Civil Court was thereafter pleased to fix a date for hearing of the suit. Subsequent to the Order no. 95 dated 5th February, 2010 when the suit was fixed for hearing, the opposite party-defendant again filed an application on 29th March, 2010 praying for appointment of handwriting expert on the ground that he knows English and can sign his name only. To such application the petitioners-plaintiffs filed a written objection. The petitioners-plaintiffs are aggrieved by the Order impugned dated 30th June, 2010 allowing the prayer of the opposite party-defendant for appointment of handwriting expert. The relevant part of the Order has already been set out herein above in this judgment. Sri Das submits that the conduct of the opposite party-defendant approbating and reprobating before the Learned Trial Court is impermissible. Such conduct has the effect of delaying the suit. The opposite party-defendant has deliberately shifted his stand on the point of his signature and his alleged lack of the knowledge of the English language from time to time. Sri Das submits that the Learned Trial Court plainly fell into error by allowing the second application of the opposite party-defendant for appointment of handwriting expert when earlier such application had been refused by the same Court and such refusal had been upheld by the Hon’ble High Court. Sri Das submits that the Learned Trial Court plainly fell into error by allowing the second application of the opposite party-defendant for appointment of handwriting expert when earlier such application had been refused by the same Court and such refusal had been upheld by the Hon’ble High Court. Sri Das further submits that the reasonable course of action on the part of the Learned Trial Court would have been not to entertain the second application of the opposite party-defendant for appointment of handwriting expert in the face of its earlier Orders and the Order of the Hon’ble High Court and further taking into account the stand of the opposite party-defendant that he was not conversant at all with the English language. By his conduct the opposite party-defendant has held Title Suit no. 54 of 2000 to ransom. Sri Suprabhat Bhattacharya, Learned Advocate for the opposite party-defendant has argued that there is no infirmity in the Order of the Learned Trial Court. The Learned Trial Court is always competent at any stage for its satisfaction and to arrive at a proper conclusion on the signature by appointing a handwriting expert. Similarly the opposite party-defendant is entitled in law to agitate such a point before the Learned Trial Court. Sri Bhattacharya argues that unless the signature is confirmed to be the signature of the opposite party-defendant and the factum of acknowledgment of notice being an integral part of a suit under Section 6 of the T.P. Act is settled, no interference is called for in the Order of the Learned Trial Court dated 30th June, 2010. Considered the rival submissions and the materials on record. This Court cannot help but notice the shifting and contradicting stand of the opposite party-defendant on the issue of his signature in the acknowledgment due card being canvassed from time to time before the Learned Trial Court. This Court also notices that by Order dated 21st January, 2005 the Learned Trial Court had rejected the opposite party-defendants application for appointment of handwriting expert at that stage. Being aggrieved the opposite party-defendant had approached this Hon’ble Court and by the Order dated 12th July, 2006 this Hon’ble Court while dismissing CO 1949 of 2005 had held as follows:- “The examination of the concerned document by the handwriting expert can always be done at any stage of the proceedings. Being aggrieved the opposite party-defendant had approached this Hon’ble Court and by the Order dated 12th July, 2006 this Hon’ble Court while dismissing CO 1949 of 2005 had held as follows:- “The examination of the concerned document by the handwriting expert can always be done at any stage of the proceedings. The Court is always empowered to look into the documents and take help of expert opinion, suo motu, without any application being filed by any of the parties for the interest of justice.” This Court is conscious of the fact that the confirmation of the signature of the defendant-opposite party in the acknowledgment due card is important to the proceedings under Section 106 of the T.P. Act. This Court has been made acutely conscious of the further fact that due to shifting of the stand of the opposite party-defendant from time to time -just like a sand dune- the Hon’ble Trial Court is being thwarted from coming to a quick and just conclusion on the authenticity of the signature as claimed by the opposite party-defendant. Since, as observed by this Hon’ble Court in its Order dated 12th July, 2006 it is the satisfaction of the Learned Trial Court which is paramount on the issue of the authenticity of the signature and such satisfaction can be exercised at any stage of the hearing, this Court does not think it fit to interfere at this stage with the Order impugned no. 102 dated 30th June, 2010. This Court is also acutely aware of the fact that the defendant-opposite party has thwarted the Learned Trial Court from time to time from exercising such satisfaction on pretexts which, ex facie, appear to this Court to be frivolous. It is also accepted by this court that the Learned Trial Court may find it difficult to proceed with a free mind in the progress of the suit unless a fair opportunity has been granted to the defendant-opposite party to confirm his signature in spite of the shifting stand taken by him. It is ex facie quite apparent to this Court that the defendant-opposite party, being under legal cover is exploiting to the hilt the limitations of any Court which is under a legal obligation to arrive at the confirmation of a signature when one of the contesting parties has raised such issue. It is ex facie quite apparent to this Court that the defendant-opposite party, being under legal cover is exploiting to the hilt the limitations of any Court which is under a legal obligation to arrive at the confirmation of a signature when one of the contesting parties has raised such issue. This Court therefore does not interfere with the Order impugned dated 30th June, 2010. This Court further directs that an opportunity granted by the Learned 2nd Civil Court to the opposite party-defendant for comparison of his English signature by appointing a handwriting expert by allowing his application dated 29th March, 2010 shall be availed of by the opposite party-defendant subject to the payment of costs of Rs. 10, 000 and not Rs. 300 as directed by the Learned 2nd Civil Court. Order dated 30th June, 2010 is accordingly modified. The Learned 2nd Civil Court shall fix preemptory dates for comparison of the signature as allowed by it and then shall proceed with the hearing of the suit. Since the suit is of the year 2000 this Court feels it is necessary to direct disposal of the same within a period of six months from date without granting any unnecessary adjournment to any party and subject to its calendar. CO 2874 of 2010 is thus disposed of. There will, however, be no order as to costs. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.