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2020 DIGILAW 614 (RAJ)

Mohammed Yakub v. Abdul Rauf

2020-09-02

MAHENDAR KUMAR GOYAL

body2020
JUDGMENT Mahendar Kumar Goyal, J. - Under challenge in this writ petition is the order dated 20.04.2019 whereby, the learned Rent Tribunal, Jaipur has dismissed the application filed by the petitioner-non-applicant under Sections 45 and 73 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Act"). 2. The facts in brief are that the respondent-applicant filed an eviction application in the year 2015 against the petitioner on the grounds of bonafide necessity, default in payment of rent and nuisance. In the reply filed by the petitioner to the application, he relied upon an agreement to sell dated 22.09.2015 allegedly executed by the respondent in his favour and a rent receipt dated 10.03.2003 to show rate of rent to be Rs. 500/- per month instead of Rs. 3,200/- per month as claimed by the respondent. The respondent in his rejoinder filed on 07.04.2016, categorically denied execution of any agreement to sell dated 22.09.2015 in favour of the petitioner as well as execution of the rent receipt dated 10.03.2003 and claimed both to be forged. After closure of the respondent's evidence, the petitioner moved an application under Sections 45 and 73 of the Act of 1872 praying therein to subject the signature and thumb impression alleging the same to be of the respondent on the receipt dated 10.03.2003 and the agreement dated 22.09.2015 respectively to forensic science examination. The learned Rent Tribunal has, vide order impugned herein dated 20.04.2019, dismissed the application. 3. Assailing the order, learned counsel for the petitioner submitted that learned Rent Tribunal erred in dismissing the application on account of delay in as much as he has filed the application immediately after completion of cross examination of the respondent; wherein, he categorically denied his signature/thumb impression on the documents in question. He submits, therefore, the application could not have been held to be suffering from any delay. He further contends that it was incumbent upon the learned Rent Tribunal to have sent the documents in question for forensic science examination once there was positive assertion by him as to signature/thumb impression of the respondent on the documents and its denial by the respondent. Learned counsel for the petitioner has relied upon the following judgments to buttress his submissions:- (1) Thiruvengada Pillai versus Navaneethammal and Anr., (2008) AIR SC 1541 . (2) Velaga Sivarama Krishna versus Velaga Veerabhadra Rao and Anr., (2009) AIR A.P. 47 . Learned counsel for the petitioner has relied upon the following judgments to buttress his submissions:- (1) Thiruvengada Pillai versus Navaneethammal and Anr., (2008) AIR SC 1541 . (2) Velaga Sivarama Krishna versus Velaga Veerabhadra Rao and Anr., (2009) AIR A.P. 47 . (3) Bande Siva Shankara Srinivasa Prasad versus Ravi Surya Prakash Babu and Ors., (2016) AIR Hyderabad 118 (Full Bench). (4) Guru Govindu Versus Devarapu Venkataramana, (2006) AIR A.P. 371 . 4. Per contra, learned counsel for the respondent, supporting the judgment dated 20.04.2019, submitted that he has categorically denied execution of either of the documents in his rejoinder filed way back on 07.04.2016; still, the petitioner filed the application under the Act of 1872 with delay i.e. on 25.03.2019. Relying on judgment of a co-ordinate Bench of this Court in case of Hiralal & Ors. Versus Board of Revenue & Ors, (2015) WLC(Raj) 486 UC, learned counsel contended that law does not provide that in each and every case where a plea is taken by one of the parties as to the handwriting/signature/thumb impression being forged or of another party and denied to be so by that other party, resort to Section 45 of the Act of 1872 has to be taken. He, therefore, prayed that the writ petition be dismissed. 5. Heard learned counsels for the parties and perused the record. 6. The respondent has categorically denied execution of the agreement to sell dated 22.09.2015 as well as the rent receipt dated 10.03.2003 by him and has claimed both the documents to be forged in the rejoinder filed on 07.04.2016. In these circumstances, the learned trial Court has committed no error in holding the application to be suffering from delay as having been filed after three years from the filing of the rejoinder and the submission of the learned counsel for the petitioner that he could have filed the application seeking examination of the disputed signature/thumb impression from expert only after denial by the respondent during the course of his cross-examination, cannot be countenanced. 7. 7. The law does not provide that in each and every case where there is assertion by one of the parties as to signature/thumb impression/handwriting on a document to be of another party and its denial by the other party to be so, the Court is under an obligation to resort to have expert opinion in this regard vide Section 45 of the Act of 1872. It is trite that it is for the party to establish his assertion/allegation as to the handwriting/thumb impression/signature of a party on a document to be of that party or forged; as the case may be, by leading cogent evidence in this regard and the same cannot be established solely by subjecting the document to forensic science examination. Even otherwise also, any opinion under Section 45 of the Act, 1872 is an expert opinion only and a corroborative piece of evidence and nothing more. A co-ordinate Bench of this Court has, in case of Hiralal (supra) held as under:- "15 ..........The signatures on the documents were compared and found difference therein. I find that if comparison of the signatures can be made easily by the court, then it is not necessary to sent it for expert opinion, otherwise no sanctity will remain to section 73 of the Evidence Act. The expert opinion should be called where comparison of hand-writing and signatures by the court is difficult and a proper finding cannot be recorded. 16 .If the plea taken by the respondents that in all cases an expert opinion should be taken then it would mean that even in a case where signatures are altogether different, then also, sending the matter to the expert would be nothing but an effort of the court to shirk from its responsibility as has been given under section 73 of the Evidence Act." 8. This Court is in complete agreement with the observations of the co-ordinate Bench in the aforesaid case. The judgments relied upon by the learned counsel for the petitioner have no applicability/are not helpful to the case of the petitioner. In case of Thiruvengada Pillai (supra), the Hon'ble Apex Court has held as under:- "15. While 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. In case of Thiruvengada Pillai (supra), the Hon'ble Apex Court has held as under:- "15. While 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 where the court is in a position to identify the characteristics of finger prints, 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. The decision in Muralilal (supra) and Lalit Popli (supra) 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. 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 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." 9. The aforesaid observations were made by the Hon'ble Apex Court, in the circumstances wherein, the Court below has proceeded to compare the thumb impression under Section 73 of the Act of 1872, an occasion which has not arisen in the present case. 10. The Full Bench of the Hyderabad High Court has, in case of Bande Siva Shankara Srinivasa Prasad (supra), held as under:- "21. We accordingly answer the reference as under: It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/ signature under Section 45 of the Indian Evidence Act, 1872. The Court is however not barred from sending the disputed handwriting/ signature for comparison to an expert merely because the time gap between the admitted handwriting/signature and the disputed handwriting/signature is long. The Court must however endeavour to impress upon the petitioning party that comparison of disputed handwritings/signatures with admitted handwritings/signatures, separated by a time lag of 2 to 3 years, would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. That being said, there can be no hard and fast rule about this aspect and it would ultimately be for the expert concerned to voice his conclusion as to whether the disputed handwriting/ signature and the admitted handwriting/signature are capable of comparison for a viable expert opinion. The view expressed by the Division Bench in Janachaitanya Housing Limited v. Divya Financiers, (2008) AIR A.P. 163 , as to the stage of the proceedings when an application can be moved by a party under Section 45 of the Indian Evidence Act, 1872, continues to hold the field and there is no necessity for this Full Bench to address that issue." 11. The learned counsel for the petitioner failed to satisfy this Court as to how the observations of Full Bench in Para 21 are helpful to his case; rather, the reference was unserved in no uncertain terms that it is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion. In case of Guru Govindu (supra), the Hon'ble High Court of Andhra Pradesh was pleased to hold that it is not necessary to reckon an application filed under Section 45 to be suffering from delay if it is not filed soon after the written statement is presented. The aforesaid judgment has no applicability in the present case. 12. The reliance placed by the learned counsel for the petitioner on the judgment of the Hon'ble Andhra Paradesh in case of Velaga Sivarama Krishna (supra), wherein, in para 7, the Hon'ble Court has held that whenever a party disputes the signature on a particular document, two remedies are open to him, either to request the Court to compare the signatures or to file an application to send the document to the expert for comparison and if second option is chosen, it must be sent for comparison, as no prejudice is caused to the either party. As per the facts of this case, the application seeking forensic science examination was filed at the earliest which is not so in the present case. Even otherwise also, a co-ordinate Bench of this Court has, in the case of Hiralal (supra), held that it is not necessary in each and every case to subject any disputed signature/thumb impression to forensic science examination. This Court therefore is not inclined to accept the proposition laid down by the Hon'ble Andhra Pradesh High Court. 13. The order impugned dated 20.04.2019 does not suffer from any illegality or perversity warranting interference by this Court under its supervisory jurisdiction vide Article 227 of the Constitution of India. Resultantly, the writ petition is dismissed.