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2018 DIGILAW 3825 (MAD)

G. Venkatesan v. K. S. Ravichandran

2018-10-22

M.V.MURALIDARAN

body2018
JUDGMENT M.V.Muralidaran, J. Civil Revision Petition No.1131 of 2018 is directed against the order dated 2.8.2017 passed in I.A.No.273 of 2014 in O.S.No.1 of 2012 on the file of the learned Sub-Court, Sriviliputhur. Civil Revision Petition No.844 of 2018 has been filed against the order dated 8.2.2018 passed in I.A.No.844 of 2017 in I.A.No.273 of 2014 in O.S.No.1 of 2012 on the file of the learned Sub-Court, Sriviliputhur. 2. The petitioners herein are defendants and the respondent is the plaintiff in the suit. 3. For the sake of convenience, the parties are referred to as they are arrayed in the suit. 4. The plaintiff has filed the suit for declaration to declare that the suit property belongs to him and for permanent injunction restraining the defendants and their men, agents and servants from in any manner interfering with the peaceful possession and enjoyment of the suit property. 5. The defendants have filed I.A.No.273 of 2014 under Order 26, Rule 10(A) read with Section 151 CPC to send for the sale deed dated 29.6.1973 filed by the plaintiff, document bearing No.1533/1973 dated 2.12.1975, document bearing No.2479/1975 on the file of the learned Rajapalayam Sub Registrar Office and the plaint in O.S.No.499 of 1974 on the file of the learned District Munsif Court, Srivilliputhur for comparison of the signature of Danushkodiraja and obtain expert opinion. 6. By an order dated 2.8.2017, the trial Court allowed the petition by observing that if needs the trial Court can itself compare the disputed signature of Danushkodiraja found in the sale deed dated 29.6.1973 with an admitted signature found in the book maintained by the Sub Registrar dated 22.8.1973. While observing so, the trial Court directed to take a photo copy of the relevant book page of the document No.1533 of 1973 dated 22.8.1973 for comparison and ordered to return the same to the Sub Registrar. Aggrieved by the same, the defendants have preferred C.R.P.No.1131 of 2018. 7. Thereafter, the defendants have filed I.A.No.844 of 2017 in O.S.No.273 of 2014 under Section 151 CPC read with Section 45 of the Indian Evidence Act seeking to appoint an advocate commissioner to produce the original documents from the Court to the Forensic Science Department and to get the report from the department for comparison of the signature of Danushkodiraja. 8. Thereafter, the defendants have filed I.A.No.844 of 2017 in O.S.No.273 of 2014 under Section 151 CPC read with Section 45 of the Indian Evidence Act seeking to appoint an advocate commissioner to produce the original documents from the Court to the Forensic Science Department and to get the report from the department for comparison of the signature of Danushkodiraja. 8. By an order dated 8.2.2018, the trial Court dismissed the petition by observing that since the defendants have not filed any appeal against the order passed in I.A.No.273 of 2014 and in view of the observation made in I.A.No.273 of 2014, the present petition was not maintainable and thus, dismissed the same. Aggrieved by the same, the defendants have preferred C.R.P.No.844 of 2018. 9. It is to be noted that after the order passed in I.A.No.844 of 2017 dated 8.2.2018, on 6.6.2018, the defendants have filed C.R.P.No.1131 of 2018 against the order passed in I.A.No.273 of 2014. Both the revisions were taken up together and heard. 10. I heard Mr.R.Devaraj, learned counsel for the defendants/revision petitioners and Mr.P.Arun Jayatram, learned counsel for the respondent/plaintiff in both the Civil Revision Petitions. I have also gone through the material papers available on record. 11. Learned counsel for the defendants contended that the trial Court having allowed I.A.No.273 of 2014 with certain modification, ought not to have directed that if required, the Court can itself compare the disputed signature of Danushkodiraja with the admitted signature found in the document dated 22.8.1973. 12. Per contra, the learned counsel for the respondent submitted that as per Section 73 of the Indian Evidence Act, the Court is empowered to compare the disputed signatures with the admitted signatures and the trial Court has rightly observed so. Therefore, there is no necessity to interfere with the orders of the trial Court. 13. Section 45 of the Indian Evidence Act reads as follows: "45. Opinion of experts. When the Court has to form an opinion upon a point of foreign law or of science or art, or as identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identity of handwriting or finger impressions] are relevant facts." 14. In Devaraju Padayachi v. Sivasankara Padayachi, (2004) 4 CTC 699 , this Court held as under: "5. ... In Devaraju Padayachi v. Sivasankara Padayachi, (2004) 4 CTC 699 , this Court held as under: "5. ... In such circumstances, I am to point out that if the disputed document and the alleged signature of the decree holder in the receipt are examined by a handwriting expert and opinion is received, it would be easier for the Principal District Munsif, Cuddalore to have an opinion about the truth and genuineness of the disputed receipt and the alleged signature of the decree holder therein or otherwise. Such an expert opinion would give much more clarity for arriving at a decision upon the truth and genuineness of the disputed receipt. But, unfortunately, neither the decree holder nor the judgment debtor has taken steps to get such expert opinion before the Principal District Munsif, Cuddalore. In such circumstances, irrespective of the fact that the Judge can compare the signature, it would be better for the Judge viz., Principal District Munsif, Cuddalore to get the expert opinion after examination of the disputed receipt and comparison of the signature therein with the admitted one of the decree holder which may help further to find out the truth and genuineness of the signature." 15. In the above decision this court held that irrespective of the fact that the Judge can compare the signature, it would be better for the Judge to get the opinion of the expert after examination and comparison of the signature with the admitted one. 16. The provision under Section 73 of the Indian Evidence Act reads as follows:- "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." 17. Thus, it is clear that the said provision of law gives ample power to the trial Court to compare the disputed signatures with the admitted signatures of Danushkodiraja and then come to an independent conclusion based on such comparison. Thus, it is clear that the said provision of law gives ample power to the trial Court to compare the disputed signatures with the admitted signatures of Danushkodiraja and then come to an independent conclusion based on such comparison. If in any event, the trial Court finds it difficult to arrive at any definite conclusion even after such comparison, it is open to either of the parties to take the document to a handwriting expert for comparison and offering his opinion on this aspect of the matter. Hence this Court is of the considered view that the trial Court was right in observing that if required the Court can compare the disputed signature of Danushkodiraja with the admitted signature found in the book page bearing document No.1533 of 1973. 18. In N.Chinnasamy v. P.S.Swaminathan, (2006) 4 CTC 850 , the learned Single Judge of this Court, after referring to various decisions of this Court and the Hon'ble Apex Court has given certain guidelines, which read thus: "(1) Sec.73 of the Indian Evidence Act authorises the court to compare the disputed signature with the admitted signature in order to come to its own conclusion. (2) It is always safe for the court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons. (3) The practice of sending original documents in the custody of the courts to the handwriting experts is a highly objectionable one and a very very bad procedure. (4) The proper procedure would be to permit the handwriting expert to inspect the document in the court premises itself in the presence of some responsible officers of the court. (5) If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the court. (6) When examination of the disputed documents within the court's premises, is not possible due to genuine difficulties expressed by the expert, the court has to find out the alternative way of achieving the object for the purpose of doing justice. (7) In such circumstances as mentioned above, the application has to be treated as an application for an appointment of the commissioner in whose presence the examination of the disputed document has to be conducted by the expert. (7) In such circumstances as mentioned above, the application has to be treated as an application for an appointment of the commissioner in whose presence the examination of the disputed document has to be conducted by the expert. (8) When the investigation cannot be conveniently conducted within the premises of the court and the same has to be carried out in the laboratory of the Forensic Department of the Government of Tamil Nadu, it is necessary to appoint a commissioner to conduct the investigation of the document in his presence. (9) Filing application for examination of documents by handwriting expert at a late stage thereby protracting and holding up the proceedings is highly objectionable. (10) Merely because of the reasons that the trial court has by itself compared the admitted signature and the disputed signature invoking Sec.73 of the Indian Evidence Act there is no bar or ban for the first appellate court for sending the documents to get the expert opinion. (11) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document. (12) When the defendant denies the signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert." 19. After summarising the above guidelines, the learned Single Judge, on examination of the facts and circumstances of the said case, observed as under: "38. ..... Further the opinion of the handwriting expert alone is not the deciding factor in finding out the genuineness of the sale agreement dated 15.2.94 and the same could be tested by examining the attesting witnesses and also in some other modes and it is the duty of the plaintiff to establish his case by letting in sufficient oral and documentary evidence." 20. The Court itself shall not assume the role of an expert. However, if the Court finds it difficult to assess it on comparison of signatures, it may take steps to secure an expert's opinion. The Court itself shall not assume the role of an expert. However, if the Court finds it difficult to assess it on comparison of signatures, it may take steps to secure an expert's opinion. No prejudice would be caused to either parties when the trial Court first compare the disputed signature of Danushkodiraja with the admitted signature found in the book page bearing document No.1533 of 1973 produced before the trial Court and if the trial Court finds it difficult to assess it on comparison of signatures, then it may take steps to secure an expert's opinion. 21. In the result: (a) both the Civil Revision Petitions are allowed and the orders in I.A.No.273 of 2014 in O.S.No.1 of 2012 dated 2.8.2017 and I.A.No.844 of 2017 in O.S.No.1 of 2012, dated 8.2.2018 on the file of the learned Sub-Court, Srivilliputhur, are set aside; (b) the trial Court is directed to compare the disputed signature of Danushkodiraja with the admitted signature found in the book page bearing document No.1533 of 1973 dated 22.8.1973 to arrive at the right conclusion. If in any event, the trial Court is unable to reach any definite conclusion after comparison of such signature of Danushkodiraja and the signature in dispute, a suitable direction may be given to the petitioners to take the document to the forensic laboratory for comparison by a handwriting expert in order to obtain the expert opinion; (c) the trial court is also directed to dispose of the suit within three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.