IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.10.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD) No.2819 of 2008 and M.P.No.1 of 2008
K.Natarajan
Sole Proprietor of
Radhakrishna Engineering Company,
No.1,V.N. Industrial Estate,
Bharathi Nagar, Peelamedu,
Coimbatore. ... Petitioner
Vs.
1.Mrs.R.Indira
2.R.Ramachandran
3.R.Bharathan ... Respondents
This Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the Order dated 07.08.2008 passed in I.A.No.467 of 2008 in O.S.No.433 of 2005 on the file of the Additional District Court(Fast Track Court No.III) Coimbatore.
For Petitioner : Mr.K.Kalyanasundaram
For Respondents : Mr.Sai Bharath
*****
O R D E R
This Civil Revision Petition has been filed by the petitioner/plaintiff to set aside the Order dated 07.08.2008 passed in I.A.No.467 of 2008 in O.S.No.433 of 2005 on the file of the Additional District Court(Fast Track Court No.III) Coimbatore.
2. The plaintiff in O.S.No.433 of 2005 is the revision petitioner before this Court. The suit in O.S.No.433 of 2005 has been filed by the petitioner herein/plaintiff for Specific Performance by directing the defendants to execute and register the sale deed in respect of the suit property and also for permanent injunction. Written statement has been filed by the respondents herein/defendants and the suit is being contested. Pending suit, an application in I.A.No.467 of 2008 was filed by the respondents/defendants to send the suit document No.1 the alleged agreement to sale to compare the signature available in that agreement with the admitted signature of their father by sending the same to the Forensic Science Department. The said application was resisted by the petitioner/plaintiff by filing a counter. The trial Court by order dated 04.08.2008 allowed that application with the condition to pay Rs.1,500/- as costs. Aggrieved by the same, the above civil revision petition has been filed by the plaintiff in the suit.
3. This Court on 21.08.2008 ordered notice and granted interim stay. The respondents have entered appearance through their counsel.
4. I have heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents and I have also gone through the documents filed in support of their submissions.
5. The learned counsel appearing for the petitioner/plaintiff submits that in the suit filed by the petitioner/plaintiff for Specific Performance in the year 2005, written statement was filed by the respondents/defendants on 21.04.2006 denying the execution of the sale agreement. Thereafter, an application in I.A.No.467 of 2008 was filed by the respondents/defendants during August,2008 to send the suit document No.1, the alleged agreement to sale to compare the signature with the admitted signature of their father by the Forensic Department. On the objection raised by the petitioner/plaintiff, the trial Court allowed the application with the condition to pay Rs.1,500/- as costs. The learned counsel appearing for the petitioner further submits that the trial Court allowed the application by passing a non speaking order with cost mechanically. According to him, not only the application filed by the respondents/defendants during August,2008 is highly belated, but also the trial Court has not adverted to the fact that the application is not necessary. Therefore the trial Court ought not to have allowed the application and the attempt made by the respondents/defendants to disprove the case of the plaintiff is unnecessary. Moreover, the learned counsel for the petitioner submits that there is no admitted document of the contemporaneous period produced by the respondents/defendants for sending the same for comparison to the forensic department. In support of his submissions, the learned counsel appearing for the petitioner/plaintiff relied on the decision reported in 2006(4) CTC 850 (N.Chinnasamy Vs. P.S.Swaminathan) Therefore, he prays for setting aside the order passed by the trial Court.
6. Per contra, the learned counsel appearing for the respondents/defendants would submit that the respondents denied the execution of sale agreement and to prove their case, that the sale agreement is a rank forgery, they filed the application in I.A.No.467 of 2008 to send the suit document No.1, the alleged agreement to sale to compare the same with admitted signature of their father by the Forensic Department. Therefore, according to him, the trial Court has rightly allowed the application and there is no infirmity nor illegality in the order passed by the Court below warranting interference by this Court under Article 227 of the Constitution of India.
7. I am unable to accept the submissions made by the learned counsel appearing for the respondents/defendants.
8. In a suit for Specific Performance, it is for the plaintiff to establish his case and prove the sale agreement was validly executed by the defendants and he is entitled to get the sale deed executed in his favour pursuant to the sale agreement. Moreover, the suit in O.S.No.433 of 2005 was filed in the year,2005 and the written statement was filed in the year 2006 and thereafter in the year 2008 only, the respondents/defendants filed an application for sending the suit document No.1, the alleged agreement to sale to compare the same with admitted signature of their father by the Forensic Department. Moreover, as rightly contended by the learned counsel appearing for the petitioner/plaintiff no admitted document of the contemporaneous period of the sale agreement was submitted along with the petition for comparison. Therefore, the delay and non submission of the relevant document without the admitted document of the contemporaneous period would disentitle the respondents/defendants herein. But, the trial Court
without adverting to these well established principles, allowed the application mechanically. Accordingly, the order passed by the Court below on 04.08.2008 is set aside and the civil revision petition stands allowed.
9. In 2006(4) C.T.C. 850 (cited supra), I have held that application filed belatedly are objectionable, that too, without referring to any documents containing admitted signature. It is further held in the above judgment that when defendants dispute the signature in the document relied on by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature. The relevant portion reads as under:
“32. From the above judgments, the following principles have emerged:
(1) Section 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 experitise 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 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 circumstance 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 handing 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 Section 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.”
10. In the result, the civil revision petition is allowed. No costs. Consequently, connected M.P.No.1 of 2008 is also closed. Considering the fact that the suit is of the year,2005, I direct the
S. RAJESWARAN, J.
vaan/rrg
trial Court viz., the Additional District Judge(Fast Track Court No.III) Coimbatore to dispose of the suit in O.S.No.433 of 2005 on merits and in accordance with law within a period of four months from the date of receipt of a copy of this order.
13.10.2008
Index : Yes/No
Internet: Yes/No
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To
The Additional District Judge,
Fast Tract Court No.III,
Coimbatore.
CRP(PD)No.2819 of 2008
28.08.2008