Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 370 (GAU)

Pawan Kumar Sethia v. Sakala Devi Thakur

2015-03-25

HRISHIKESH ROY

body2015
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. J. Sarma, the learned Counsel appearing for the petitioner (defendant No. 2). Also heard Mr. S.P. Roy, the learned Counsel appearing for the respondents, who have filed the Title Suit No. 316 of 2005 for ejectment and recovery of arrear rent from the defendants. According to the plaintiffs, the suit premises was let out initially on 1.11.1999 with monthly rent fixed at Rs. 3,200/- and the rent amount was revisable by 20% at the end of 3 years. When the suit was filed, the monthly rent was Rs. 5,000/- p.m. and the pleaded case of the plaintiffs is that the defendants did not pay rent after February, 2003. 2. In the W.S. filed by the defendant No. 2, the claim of Rs. 3,200/- being the monthly rent was denied. According to the defendant No. 2, the rent was originally only Rs. 401/- p.m. but at the stage when the suit was filed, the monthly rent was raised to Rs. 900/- through mutual understanding. According to the defendants the plaintiffs never issued any receipt for payment of rent and electricity charges. Amongst the documents furnished by the defendants with their W.S., the rent agreement purported to be signed by Anil Kumar Sharma, the son of the original landlord Brahma Thakur was proved as Exbt. A(1). Since the subject matter of the present proceeding is the Exbt. A(1) document, the same is extracted here in below for ready reference:- "Dated - 5.11.1996 I give my shop on rent basis to M/s. Mahabir Bhandar on monthly rent of Rs. 401.00 (Rupees four hundred and one only) for eleven month and at the end of this period this shop is again required to the tenant's in the matter of rent and other points we discus on that basis. I received Rs. 401.00 (Rupees four hundred and one only) from Mahabir Bhandar for the month of 30th November, 1996. 3. After closure of evidence and at the stage of argument of the suit, the defendants filed an application on 7.7.2011 (Annexure-4), under Section 151 of C.P.C. to send the rent agreement to the handwriting expert, to compare the signature of Anil Kumar Sharma in the exhibit, with the specimen signature of the Executant. The defendant averred in his application that the Exbt. The defendant averred in his application that the Exbt. A(1) is a vital document to show the precise monthly rent payable for the suit premises and this exhibit will throw light on a vital aspect of the case since arrear rent is also claimed in the ejectment proceeding. 4. However the learned Civil Judge No. 1, Kamrup, Guwahati considered the application to have been filed at a belated stage by the defendants and since the process will delay the disposal of the suit, the application for sending the Exbt. A(1) document to the Director of Forensic Science Laboratory, was rejected through the impugned order dated 29.8.2014 (Annexure-6). 5.1 Assailing the legality of the order rejecting the defendants application, Mr. J. Sharma, the learned Counsel submits that when monthly rate of rental is disputed, the Exbt. A(1) document will facilitate the Court to determine the correct amount and since this exhibit was listed amongst the documents appended to the W.S., the plaintiffs should not object to comparing the signature of the Executor, in the Exbt. A(1) rent agreement. 5.2 The defendants submit that the relevancy of the exhibit was never examined by the Court and the learned Counsel refers to Section 45 of the Evidence Act, project that the opinion of the handwriting expert is a relevant fact, in deciding the suit for ejectment on the plea of rent default. 5.3 The petitioner contends that the Exbt. A(1) is not a simple rent receipt but is an agreement-cum-rent receipt and therefore the defendants' plea that rent receipt was never issued should not lead to an inference that, the agreement-cum-rent receipt was created fraudulently, by the defendants. 6.1 Representing the plaintiffs (respondents), Mr. S.P. Roy, the learned Counsel submits that the instant suit was filed in 2005 and when the evidence in the case was concluded in 2010 itself, the defendants should not have waited till July 2011, to file the application for opinion of the handwriting expert on the Exbt. A(1) document and this is contended to be a delaying tactics by the defendants, in the long pending ejectment suit. A(1) document and this is contended to be a delaying tactics by the defendants, in the long pending ejectment suit. 6.2 The respondents contend that opinion of the handwriting expert is not conclusive or necessary and the Court itself could have compared the signature of Anil Kumar Sharma, under Section 73 of the Evidence Act and accordingly it is argued that it is not essential to seek the opinion of the handwriting expert, for a fair determination of the dispute. 6.3 The further submission of Mr. S.R. Roy is that the payable rent will eventually be determined by the Court and for this issue, handwriting expert's opinion on Exbt. A(1) is unnecessary. 7. While the opinion of the handwriting expert is relevant under Section 45 of the Evidence Act, in all cases, it is not essential to solicit the opinion of the expert to prove or disprove the disputed writing (State of Gujarat vs. Vinava Chandra Chhota Lal Pathi, AIR 1967 SC 778 ). 8. The Apex Court in Fakhruddin vs. Madhya Pradesh, AIR 1967 SC 1326 declared that evidence on the identity of the handwriting can be considered under Section 45, 47 and 73 of the Evidence Act. When handwriting is disputed the direct evidence of a person witnessing the writer is the best way to clinch the issue and then other evidence may be unnecessary. The authenticity can also be proved by an individual who is familiar with the handwriting of the writer of the document. Additionally the testimony of an expert, who is competent to compare the handwritings on scientific basis, can be the 3rd mode of proof. 9. What follows from above is when the signature on a document is disputed by the writer under Section 73 of the Evidence Act the Court can compare the disputed signature with other signatures available in the case records. Thus when conclusion can be reached quickly by the Court itself under Section 73, the opinion of the handwriting under Section 45 expert may be a superfluous exercise, in a given case. 10. The law certainly permits comparison of handwriting on a questioned document under Section 45, 47 or 73 of the Evidence Act. But when the Court itself compares the signature under Section 73, the Judge doesn't do so as a scientific expert. 10. The law certainly permits comparison of handwriting on a questioned document under Section 45, 47 or 73 of the Evidence Act. But when the Court itself compares the signature under Section 73, the Judge doesn't do so as a scientific expert. But on the other hand, the handwriting expert possesses the scientific knowledge to give a trained opinion on the disputed signature. Although the opinion of the expert is not legally conclusive, it will certainly have its weight in a situation, when the Court is confronted with the genuineness of signature on a questioned document. 11. It was observed in Ramesh Chandra Agrawal vs. Regency Hospital Limited, (2009) 9 SCC 709 that the law of evidence is designed to ensure that the Court considers that evidence, which will enable it to reach a reliable conclusion but the expert must be within the recognized field of expertise and the acceptability of the expert evidence, must be based on reliability principle. 12. In this case there is serious dispute amongst the parties on the rate of monthly rent and one exhibit is produced by the defendants to show that the payable rent was Rs. 401/- p.m. But while rejecting the defendants' application, the learned Trial Judge failed to take into account whether the Exbt. A(1) document has any relevance, in deciding the ejectment suit. 13. The only reason for the impugned rejection order is the expected delay in disposal of the suit and while time will certainly be needed to secure the opinion of the expert, it can't be overlooked that the defendants' application was filed on 7.7.2011 and for last about 4 years, the suit has not proceeded any further from that stage only because, the parties are disputing on the need for the expert's opinion. 14. According to me, the concerned exhibit can help the Court to decide on a relevant aspect of the case by weighing the evidence of the handwriting expert and therefore the Court's non-consideration of the relevancy aspect of the Exbt. A(1) in my opinion, has resulted in a jurisdictional error. 15. Moreover to ascertain the correct facts, the Court can always invoke Section 151 of C.P.C. at any stage of the proceeding and the factum of delay in disposal of the suit, could not have been made the basis for rejection of the defendants' application. 16. A(1) in my opinion, has resulted in a jurisdictional error. 15. Moreover to ascertain the correct facts, the Court can always invoke Section 151 of C.P.C. at any stage of the proceeding and the factum of delay in disposal of the suit, could not have been made the basis for rejection of the defendants' application. 16. It must also be observed that while the pleaded case of the plaintiffs is that no rent receipt was ever issued by the landlord, the Exbt. A(1) can't be described as a rent receipt simplicitor but it is more like a rental agreement-cum-receipt. Therefore the defendants stand doesn't entirely rule out the possibility of existence of the Exbt. A(1) document and no adverse inference can be drawn on this aspect on account of the defendant's pleadings. 17. For the foregoing discussion, I find that the petitioner has made out a case for interfering with the impugned order dated 29.8.2014 (Annexure-6) and accordingly the same is quashed. The defendants' Petition No. 2350/2011 is for the opinion of the handwriting expert on the Exbt. A(1) document, is therefore granted. But the Court should ensure that the expert opinion is secured urgently and no undue delay should be caused in disposal of the suit. Considering the long pendency, the learned Trial Court is requested to make an earnest effort to dispose of the ejectment suit within 3 months of receipt of the report from the handwriting expert. It is ordered accordingly. With the above order, the Revision petition stands allowed. The Registry should forward a copy of this order to the learned Civil Judge No. 1, Kamrup, Guwahati. Petition Allowed.