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2025 DIGILAW 485 (HP)

Parveen Kumar v. Uday Parkash

2025-03-25

RAKESH KAINTHLA

body2025
JUDGMENT : (Rakesh Kainthla, J.) The present petition is directed against the order dated 30.12.2021 passed by learned Additional District Judge, Sirmaur District at Nahan (learned Trial Court), vide which the application filed by the petitioner (applicant/plaintiff before the learned Trial Court) under Section 73 of Indian Evidence Act read with Section 151 of Code of Civil Procedure (in short ‘CPC’) for comparison of the signatures of respondent No.1 (original defendant No.1) was dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present petition are that a civil suit is pending before the learned Trial Court for specific performance of the Agreement dated 16.02.1987 entered between Maharani Durga Devi and Smt. Nalini Devi through their General Power of Attorney-defendant No.1. The matter was listed for the evidence when the applicant/plaintiff filed an application under Section 73 of the Indian Evidence Act for sending the signatures of defendant No.1 to the handwriting expert for comparison. It was asserted that defendant No.1 had received an amount of ?15,00,000/- and delivered the possession of the land to the applicant/plaintiff. The sale deed could not be executed because of some litigation amongst the co-sharers. The applicant/plaintiff came to know that the matter between co-sharers was decided before this Court and the property agreed to be sold to the applicant/plaintiff was given to defendants No.2 to 4 to defeat the plaintiff’s rights. The defendants had prior knowledge of the existence of the agreement. They refused to execute the sale deed despite tendering the amount to them. Defendant No.1 denied the execution of the agreement in the written statement. He was called upon to admit or deny the contents of the agreement and the defendants through their counsel denied their signatures. The record of handwriting and signatures is available in the form of a written statement, Vakalatnama and other documents filed before the Court. The comparison of the signatures is essential in view of the denial; hence, the application. 3. The application was opposed by filing a reply taking preliminary objections regarding lack of maintainability and the application having been filed to delay the disposal of the suit. The contents of the application were denied on merits. The comparison of the signatures is essential in view of the denial; hence, the application. 3. The application was opposed by filing a reply taking preliminary objections regarding lack of maintainability and the application having been filed to delay the disposal of the suit. The contents of the application were denied on merits. It was asserted that defendant No.1 had specifically denied the execution of the agreement to sell in his reply to the legal notice. The evidence of the plaintiff was closed by the order of the Court. The evidence of defendant Nos. 2 to 4 is to be led. It is for the plaintiff to prove the due execution of the agreement and they cannot be permitted to fill up the lacuna by filing the application; hence, it was prayed that the present application be dismissed. 4. The learned Trial Court held that the science of comparison of handwriting is not perfect. The property was transferred in a compromise. The plaintiff has to prove the execution of the agreement to sell by examining the scribe and other witnesses. Section 73 of the Indian Evidence Act would not help the plaintiff in proving the document, therefore, the application was dismissed. 5. Being aggrieved from the dismissal of the application, the applicant/plaintiff have filed a present petition asserting that the learned Trial Court misread and misappreciated the material on record. Defendant No.1 had admitted the execution of the agreement and denied his signatures over it. The only remedy available to the applicant/plaintiff was to get the signatures compared by a handwriting expert. Learned Trial Court failed to pass a reasoned order. It failed to exercise the jurisdiction vested in it. Therefore, it was prayed that the present petition be allowed, the order passed by the learned Trial Court be set aside and the documents be sent for comparison. 6. I have heard Mr Suneet Goel, learned Senior Counsel assisted by Mr Vivek Negi, learned counsel for the applicant/plaintiff, Mr Ashok Kumar Tyagi, learned counsel for legal representatives of the original respondent/defendant No.1, Mr Nitin Thakur, learned counsel for respondents/Defendants No.2 to 4 and Mr Satish Sharma, learned counsel for respondents No.6(i) to 6(iii). 7. Mr. Suneet Goel, learned Senior Counsel for the applicant/plaintiff submitted that the learned Trial Court erred in dismissing the application. 7. Mr. Suneet Goel, learned Senior Counsel for the applicant/plaintiff submitted that the learned Trial Court erred in dismissing the application. Defendant No.1 denied his signatures on the agreement and it was essential to send the documents for comparison with the admitted handwriting of defendant No.1. Therefore, he prayed that the present petition be allowed and the document be sent for comparison. He relied upon the judgment of Hon’ble Supreme Court in Fakhrudin versus State of Madhya Pradesh, 1966 SCC Online SC 55 and Ajit Savant Majagvai v. State of Karnataka , ( 1997) 7 SCC 110: 1997 SCC OnLine SC 122 at page 122 in support of his submission. 8. Mr. Ashok Kumar Tyagi, learned counsel for legal representatives of defendant No.1 submitted that defendant No.1 has died and he is unable to provide his specimen handwriting and signatures for comparison. The primary responsibility to prove the agreement lies upon the plaintiff and learned Trial Court had rightly held that this responsibility cannot be discharged by sending the document to the handwriting expert; hence, he prayed that the present petition be dismissed. 9. Mr. Nitin Thakur, learned counsel for respondents/defendants No.2 to 4 adopted the submissions made by Ashok Kumar Tyagi and submitted that the applicant/plaintiff was aware of the denial of the signatures by defendant No.1. His evidence was closed by the order of the Court. He filed the application to nullify the effect of the order of the Court, which is not permissible; hence, he prayed that the present petition be dismissed. 10. Mr Satish Sharma, learned counsel for respondents No.6(i) to 6(iii) adopted the submissions made by learned counsel for defendant Nos. 1 and 2 to 4 and prayed that the present petition be dismissed. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The scope of jurisdiction exercised by the High Court under Article 227 of the Constitution of India was explained by the Hon’ble Supreme Court in Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181 as under: 15. 11. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 12. The scope of jurisdiction exercised by the High Court under Article 227 of the Constitution of India was explained by the Hon’ble Supreme Court in Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181 as under: 15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [ Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943 ] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, or reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [ Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69 ] The jurisdiction exercised is like correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. 16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 ] has observed : (SCC pp. 101-102, para 6) “6. The scope and ambit of the exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India are examined and explained in several decisions of this Court. 101-102, para 6) “6. The scope and ambit of the exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India are examined and explained in several decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them legally. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.” 13. This judgment was followed by this Court in Sanjeev Kumar vs. Suman Jain 2022 (3) Shim. LC 1455. 14. The applicant had asserted in para 1 of the application that defendant No.1 denied the execution of the agreement in his written statement. Learned counsel for the defendants denied the signatures of his client during the admission and denial of the documents, therefore, the plaintiff was aware of the fact that defendant No.1 had denied his signatures. He has not given any explanation for filing the application belatedly. 15. It was submitted that notice containing the averment regarding the agreement to sell was admitted and the agreement to sell was admitted by implication. It is not necessary to deal with this submission because it is a matter to be appreciated after trial. He has not given any explanation for filing the application belatedly. 15. It was submitted that notice containing the averment regarding the agreement to sell was admitted and the agreement to sell was admitted by implication. It is not necessary to deal with this submission because it is a matter to be appreciated after trial. SufÏce it to say that if there is any such admission, there is no necessity to send the agreement to a handwriting expert for comparison. 16. It was laid down by the Hon’ble Supreme Court in Fakhrudin (supra) that writing can be proved by the testimony of a person in whose presence the document was written. This is direct evidence and if it is available, the evidence of any other kind is rendered unnecessary. It was observed: “10. Evidence of the identity of handwriting receives treatment in three sections of the Indian Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (S. 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwriting on a scientific basis. A third method (S. 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person.” (Emphasis supplied) 17. Therefore, the learned Trial Court had rightly held that the burden is upon the applicant/plaintiff to prove the signatures of defendant No.1 by the direct evidence by examining the scribe of the document or the witness in whose presence the document was signed. The recourse can be had to the comparison of the document if the direct evidence is not available. The recourse can be had to the comparison of the document if the direct evidence is not available. It is trite to say that the best evidence has to be led and the other evidence can be led if the best evidence is not available. Since, in the present case, there is no averment that the scribe or the witness is not available, therefore, the recourse cannot be had to the comparison of the signatures by referring the document to the Expert. Learned Trial Court had rightly pointed out that the evidence of the handwriting expert is an opinion, which can supplement the other evidence. Since, in the present case, better evidence is available, therefore, the recourse could not be had to the report of the Expert. 18. Hence, the learned Trial Court had rightly dismissed the application filed by the applicant/plaintiff and no interference is required with the order passed by the learned Trial Court in the exercise of the supervisory jurisdiction. 19. Consequently, the present petition fails and the same is dismissed. 20. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing, whatsoever, on the merits of the case. 21. The parties through their respective counsel are directed to appear before the learned Trial Court on 23.04.2025 22. The file be sent forthwith so as to reach the learned Trial Court well before the date fixed.