Himachal Pradesh High Court
Chand Rani & Another vs Ram Lal (Deceased) Through Kamla Thakur on 22 May, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
CMPMO No. 117 of 2017
Decided on : 22.5.2017
Chand Rani & another .....Petitioners.
Versus
Ram Lal (deceased) through Kamla Thakur. ....Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1Yes.
For the petitioners: Mr. Desh Raj Thakur, Advocate.
For the respondent: Mr. Sanjeev Kuthiala, Advocate.
Sureshwar Thakur, J (oral)
In pursuance to the learned trial Court allowing an application preferred before it, by the defendant/counter claimant for sending the disputed signatures of the plaintiff for comparison by the hand writing expert with the plaintiff's admitted signatures, the CFSL concerned, on hence receiving the relevant writings of the plaintiff, proceeded to purvey its report, the relevant portion whereof is extracted hereinafter:-
"It has not been possible to reach at any conclusion regarding authorship or otherwise of the disputed signatures in the red enclosed portions stamped & 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 30/05/2017 00:00:04 :::HCHP
...2...
marked Q1 to Q7 in comparison with the supplied .
standard writings and signatures in the red enclosed portions similarly stamped & marked S1 to S4 and A1 to A7 for the manifest reasons that the supplied admitted signature marked A7 appended on last page of statement dated 27.11.2002 of PW1 i.e. Sh. Ram Lal is in English Capital letters whereas rest of the supplied admitted English signatures as well as supplied specimen English signatures are in cursive English writings except admitted signature marked A6 and specimen signatures marked S3 & S4 which are in Hindi whereas all the questioned signatures are in English, as such, the signatures marked A6, A7, S3 and S4 are not found to be suitable for an effective comparison with the supplied questioned signatures. Further, on inter-se comparison of supplied admitted signatures marked A1 to A5 and specimen signatures marked S1 & S2 it appears that the specimen signatures are too simplified and also appears to be hastily written, therefore, resulting into difficulty in studying and inter-se examination of commonly occurring letters & their combinations between both sets of signatures before correctively considering them as suitable & sufficient standard signatures of Sh. Ram Lal. As such, the supplied specimen and admitted signatures do not collectively constitute suitable and sufficient standards for the purpose of effective scientific comparison with disputed signatures."
Wherein it obviously showed its inability to pronounce a firm opinion qua the common or the variant authorship of the disputed and the admitted documents. It appears that the CFSL, Shimla ::: Downloaded on - 30/05/2017 00:00:04 :::HCHP ...3...
despite being possessed with the admitted writings of the plaintiff, .
occurring on the mortgage deed of 1985, execution whereof hence is in contemporanity with the disputed/contentious execution of other documents by him, did not either proceed to hold its comparison with the relevant disputed signatures nor it made a firm order with respect to the common or the variant authorship r to of the disputed/admitted hand writings of the plaintiff, rather it was led to seek elicitation of such further admitted hand writings of the plaintiff, holding contemporanity with the purported execution by him of contentious/disputed documents. Since it is submitted at the Bar, that the plaintiff is no longer surviving, hence it is obviously not possible to get his specimen hand writings besides with more than 30 years' elapsing since the purported execution of the relevant documents by the plaintiff, elapse of immense time whereof, not rendering it possible for the LRs of the plaintiff or for the defendant, to elicit the admitted writings of the deceased plaintiff appertaining to the period when the execution of his admitted writings borne on the mortgage deedhence occurred. Consequently, when the aforesaid admitted writings of the plaintiff occurring on the mortgage deed, appear to be his singularly available admitted hand writings, hence when ::: Downloaded on - 30/05/2017 00:00:04 :::HCHP ...4...
they also hold contemporanity with the relevant disputed writings, .
therefore, in view of the aforesaid untenable inability expressed by CFSL Shimla, it is deemed fit to re-send them to the CFSL Hyderabad for enabling it to after its making their relevant comparison, its making an opinion qua their variant or common authorship by the plaintiff.
2. The learned counsel for the defendant has contended that the learned trial Court, holds an empowerment under the provisions of Section 73 of the Indian Evidence Act to suo moto make comparison of the disputed hand writings of the plaintiff with his admitted hand writings, hence this Court ought not to proceed to make an order for re-sending to the hand writing expert concerned, the relevant documents for their interse comparison by him. However, the aforesaid submission cannot be accepted, given with evidently the hand writing expert at the CFSL concerned, for reasons set forth in his report declining to make a firm opinion with respect to the authoring of the disputed documents, by the plaintiff, hence with the expert concerned, declining to furnish his opinion on the admitted/disputed writings of the deceased plaintiff, it would be legally unbefitting for the learned Court to hence enter upon their inter-se comparison, by ::: Downloaded on - 30/05/2017 00:00:04 :::HCHP ...5...
relying upon the provisions of Section 73 of the Indian Evidence .
Act, which stands extracted hereinafter:-
"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. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. 1[This section applies also, with any necessary modifications, to finger-impressions.]"
Conspicuously also when the afore extracted provisions, though predominantly empower the Court concerned, to make the relevant comparison yet when the relevant comparison would occur, only on its directing the persons concerned present in the Court to write certain words/figures in its presence. In other words, when the power vested in the Court concerned would arise on satiation of the sine qua none spelt therein, comprised in the the person concerned whose authoring of relevant words/figures ::: Downloaded on - 30/05/2017 00:00:04 :::HCHP ...6...
are disputed, is present in the Court concerned, for purveying his .
signatures and writings to it, whereupon, only their apt comparison can be tenably made by the court concerned.
However, since the plaintiff is no longer surviving, he cannot be directed by the Court concerned to submit before it, his specimen signatures, writings or figures, nor hence the Court concerned, plaintiff.
r to can within the ambit of Section 73 of the Indian Evidence Act, proceed to compare them with the disputed writings of the Consequently, the aforesaid reason assigned by the learned trial Court for declining relief to the petitioner herein, is ridden with a gross legal frailty. The petition is allowed.
Impugned order is set aside. The pending application(s), if any, stand disposed of.
22nd May, 2017 (Sureshwar Thakur),
(kck) Judge.
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