Friday, 25 December 2015

Court should not reject application for sending disputed handwriting to handwriting expert only on ground of delay

I am of the considered opinion that obtaining handwriting expert's opinion in the facts and circumstances of this case would certainly help the Court to arrive at a consistent and firm conclusion. A plain reading of the order of the lower Court would convey the idea that the lower Court dismissed the I.A. on the sole ground that there was delay in applying to the Court by the defendant for getting the assistance of the handwriting expert. In such a case, the mere delay should not be taken as material, for the reason that as per the defendant's version, he awaited the plaintiff to take steps to obtain handwriting expert's opinion, but in this case, he did not do so. Hence, when the matter was posted for defence, he chose to invoke the power of the Court under Order 26 Rule 10(a) of CPC and to get assistance of handwriting expert to find out whether the purported signature of the defendant is that of his admitted signature. Even though Section 73 of the Indian Evidence Act might contemplate that the Court itself could compare the disputed signature with that of the admitted signature, nonetheless, the Court should be slow in resorting to such a procedure, to the effect judicial views are found set out in catena of decisions of the Hon'ble Apex Court reported in 1992 (3) SCC 701 (State of Maharashtra thro CBI Vs. Sukhdev Singh @ Sukha and Others).
Madras High Court
Karuppa Gounder vs Kuppusamy on 5 March, 2009
Citation: AIR2009Mad122
Inveighing the order dated 24.10.2008, passed by the Subordinate Judge, Bhavani in I.A.No.293 of 2008 in O.S.No.66 of 2007, this civil revision petition is focussed.
2. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The respondent filed the suit O.S.No.66 of 2007 for specific performance of the agreement to sell dated 06.10.2006. The defendant also entered appearance and filed written statement. During the pendency of the trial it appears I.A.No.293 of 2008 was filed by the defendant under Order 6 Rule 10(a) of CPC seeking the following relief:
"To appoint a handwriting and finger print expert, whose address is mentioned hereunder as Commissioner to compare the petitioner's signature found in the Registered sale deed, date4d 19.03.1984 Doc.No.484/1984 with his signature found in the suit agreement of sale marked as Ex.A1 to file a report to pass other suitable orders."
After hearing both sides, the lower Court dismissed the I.A.
3. Being disconcerted and aggrieved by the order of the lower Court, this revision has been filed on various grounds, inter alia thus:
The order of the lower Court is against law, weight of evidence and all probabilities of the case in view of the fact that earlier the revision petitioner/defendant was hoping that the plaintiff would take steps to obtain the handwriting expert's opinion relating to the purported signature of the defendant found in the agreement to sell as the defendant denied his signature; inasmuch as the plaintiff had not taken any steps, the defendant did choose to file such an application, but the lower Court failed to appreciate the same in proper perspectives.
4. Despite printing the names concerned, none appeared.
5. A plain poring over and perusal of the relevant facts would exemplify and evince that the revision petitioner/ defendant even at the time of replying to the pre suit notice as well as in the written statement filed in the suit took up the consistent stand that the purported signature in the agreement to sell is not that of his and in such a case, the plaintiff himself could have taken steps to obtain handwriting expert's opinion in that regard, but he did not do so. Hence the defendant had come forward with such an I.A. for taking the assistance of handwriting expert, but the lower Court dismissed it.
6. I am of the considered opinion that obtaining handwriting expert's opinion in the facts and circumstances of this case would certainly help the Court to arrive at a consistent and firm conclusion. A plain reading of the order of the lower Court would convey the idea that the lower Court dismissed the I.A. on the sole ground that there was delay in applying to the Court by the defendant for getting the assistance of the handwriting expert. In such a case, the mere delay should not be taken as material, for the reason that as per the defendant's version, he awaited the plaintiff to take steps to obtain handwriting expert's opinion, but in this case, he did not do so. Hence, when the matter was posted for defence, he chose to invoke the power of the Court under Order 26 Rule 10(a) of CPC and to get assistance of handwriting expert to find out whether the purported signature of the defendant is that of his admitted signature. Even though Section 73 of the Indian Evidence Act might contemplate that the Court itself could compare the disputed signature with that of the admitted signature, nonetheless, the Court should be slow in resorting to such a procedure, to the effect judicial views are found set out in catena of decisions of the Hon'ble Apex Court reported in 1992 (3) SCC 701 (State of Maharashtra thro CBI Vs. Sukhdev Singh @ Sukha and Others).
7. It is also a point to be noted that the respondent/ plaintiff has not filed any counter opposing the said I.A. In the result, the impugned order dated 24.10.2008 is set aside by allowing this civil revision petitioner and consequently I.A.No.293 of 2008 shall stand allowed as under:
"An Advocate Commissioner shall be appointed:
(a) To carry the relevant documents in connection with this case personally in a sealed cover;
(b) and produce the same before the Forensic Expert;
(c) leave it in his custody under his acknowledgment for as many days as the Forensic Expert may require;
(d) collect the record from the Forensic Expert on the day as may be fixed by him;
(e) bring it back and lodge it with the Court.
The Forensic Expert is directed to complete the examination of the records in any event, within 48 hours after the depositing of the same by the Advocate Commissioner with him.
No costs. Consequently, connected miscellaneous petition is closed.
05.03.2009 Index : Yes Internet : Yes To Subordinate Judge, Bhavani G.RAJASURIA, J.

gms C.R.P.(PD)No.3904 of 2008 05.03.2009
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