Madras High Court
Kadirvelu Pillai vs V.Arjunan on 9 February, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 9.2.2012 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.645 of 2008 and M.P.Nos.1 & 2 of 2009 and 1 to 4 of 2011 Kadirvelu Pillai ... Appellant vs. V.Arjunan ... Respondent Appeal against the judgement and decree dated 20.11.2007 passed by the Principal Sub Judge, Pondicherry, in O.S.No.167 of 2004. For appellant :: Mr.T.K.Ramkumar for M/s.Ram & Rajan For Respondent : Mr.A.V.Arun JUDGMENT
This appeal is filed by the defendant as against the judgment and decree dated 20.11.2007 passed by the Principal Sub Judge, Pondicherry, in O.S.No.167 of 2004, which was filed for specific performance of an agreement to sell.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.
3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:
(i) The respondent herein, as plaintiff, filed the suit as against the appellant/defendant seeking the following reliefs:
"...to pass a judgement and decree in favour of the plaintiff as against the defendant:
i) directing the defendant to execute sale deed in favour of the plaintiff and to deliver possession of suit property as per the sale agreement dated 10.2.2004 executed by the defendant in favour of the plaintiff after receiving the balance sale consideration of Rs.10,00,000/- from the plaintiff.
ii) failing which the plaintiff prays this Hon'ble Court to execute the sale deed in favour of the plaintiff in respect of the schedule of property directly;
iii) for a permanent injunction restraining the defendant from alienating or encumbering the suit property in favour of third parties.
iv) to award the cost of the suit."
(ii) The defendant resisted the suit by filing the written statement. Whereupon issues were framed.
(iii) During trial, on the plaintiff's side, the plaintiff examined himself as P.W.1 along with P.W.2 and P.W.3 and Exs.A1 to A9 were marked. On the defendant's side, the defendant examined himself as D.W.1 and Exs.B1 to B7 were marked.
(iv) Ultimately, the trial Court decreed the suit.
4. Being aggrieved by and dissatisfied with the judgement and decree of the trail Court, this appeal has been filed by the defendant on various grounds.
5. The learned counsel for the appellant/defendant, by placing reliance on the grounds of appeal, would develop his arguements, the thumbnail sketch of the same would run thus:
(i) The trial Court even though placed reliance on the hand writing expert's opinion, it was not got marked at all in the way known to law.
(ii) The trial Court should not have placed reliance on such expert's opinion, without examining the expert and subjecting him to cross-examination by the appellant/defendant concerned.
(iii) The relevant documents were not sent to the expert also for the purpose of examination.
(iv) The readiness and willingness on the part of the plaintiff to prove his part of the contract was not at all considered by the trial Court under issue No.(ii).
(v) The trial Court simply took it for granted the case of the plaintiff and decreed the suit.
(vi) The oral extension of time for performing the plaintiff's part of the contract by the defendant was not proved before the Court.
(vii) Sections 16 and 20 of the Specific Relief Act was not considered by the trial Court.
(viii) The appellant/defendant specifically contended that Ex.A6-the alleged agreement to sell is a forged document. When such was the position, the trial Court was not justified in rendering judgement, placing reliance on such unproved expert's opinion.
Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the judgement and decree of the trial Court and for dismissing the original suit.
6. The learned counsel for the appellant, by inviting the attention of this Court to M.P.Nos.1 and 2 of 2011, would submit that the appellant wants to file additional documents before this Court and also seeks to mark them. Pending this appeal, M.P.1 of 2010 was filed by a third party, alleging that pending the original suit, the plaintiff entered into an agreement to sell with him relating to the suit property. However, this Court dismissed the said application, vide order dated 26.11.2010, even then the defendant wants to rely upon such agreement to sell, which emerged between the plaintiff and the third party, so as to highlight that the former was not genuinely interested in purchasing the property. Accordingly, the learned counsel would pray for setting aside the judgement and decree of the trial Court and for dismissing the original suit.
7. In a bid to shoot down and torpedo, pulverise and mincemeat the arguements as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguements, which could pithily and precisely be set out thus:
(a) The trial Court decided the lis based on, not only the expert's opinion, but also on other evidence available on record.
(b) Even at the appeal stage, the respondent/plaintiff could be given the opportunity to summon the expert and mark his opinion.
(c) The question of the appellant/defendant adducing additional evidence touching upon the pendente lite document would not arise at all.
(d) The respondent/plaintiff therefore filed two petitions, namely, M.P.Nos.3 and 4 of 2011, to receive the expert's opinion dated 15.2.2007 and to permit the plaintiff to mark the expert's opinion by summoning the expert.
(e) Considering the pro et contra, the lower Court rendered a reasoned judgement, warranting no interference in the appeal.
8. According to the learned counsel for the respondent/plaintiff, if this Court finds that additional evidence is required on the side of the respondent/plaintiff, the same could be taken before the appellate Court itself and the matter may not be remanded back to trial Court.
9. Heard both sides.
10. The points for consideration are as under:
(i) Whether the trial Court was justified in placing reliance on the expert's opinion on Ex.A6, the disputed document, without summoning and examining the expert concerned, as per Section 60 of the Indian Evidence Act.
(ii) Whether the trial Court rendered its judgement without adhering to Sections 16 and 20 of the Specific Relief Act.
(iii) Whether there is any perversity or illegality in the judgement and decree of the trial Court?
11. Indubitably and indisputably or at least the undeniable facts could pithily and precisely be set out thus:
The whole kit and caboodle of facts and figures, as found transpired from the case put forth by the respondent/plaintiff is to the effect that the plaintiff and the defendant allegedly entered into an agreement to sell, as contained in Ex.A6-the agreement to sell dated 10.2.2004, which is an unregistered one; however the defendant failed to perform his part of the contract but started disputing Ex.A6 itself. Whereupon the suit was filed by the plaintiff.
12. The contention of the defendant precisely was to the effect that Ex.A6-the agreement to sell is a forged and fabricated document. Whereupon, the plaintiff filed necessary application before the lower Court for getting expert's opinion on Ex.A6.
13. As per the judgement of the lower Court, Ex.A6 was sent to the handwriting expert along with the documents containing the sample signatures for getting opinion and his report also was obtained. But that was not marked.
14. At this juncture, I would like to recollect and call up Section 60 of the Indian Evidence Act, which is extracted hereunder:
"Sec.60. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to say--
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may,if it thinks fit, require the production of such material thing for its inspection."
(emphasis supplied)
15. It is palpably and pellucidly, glaringly and clearly evident that opinion of an handwriting expert will not automatically become evidence unless he is examined before the Court. His examination before Court is sine qua non for marking his report and treating it as evidence. He has to be examined but his report should be treated as no evidence. But, in this case, in paragraph No.20 of the judgement, the lower Court, despite consciously knowing that the expert's opinion was not marked by summoning the expert, did choose to rely upon it to render the judgement.
16. Incidentally, I would like to point out that the duty of the Court is not to simply place reliance on expert's opinion. Section 45 of the Indian Evidence Act also is extracted hereunder:
"Sec.45.Opinions of experts When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts."
17. At this juncture, I would like to refer to the decision of the Hon'ble Apex Court reported in (2008) 4 SCC 530 [Thiruvengadam Pillai vs. Navaneethammal and another]; certain excerpts from it would run thus:
"16. When 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 and where the court is in a position to identify the characteristics of fingerprints, 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.
17. The decision in Murari Lal and Lalit Popli 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. 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.
19. The trial court had analysed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of Pws. 1 to 3. We therefore of the view that the decision of the High Court, reversing the decision of the first appellate Court, does not call for interference."
18. There is also one other decision rendered by me reported in 2008 (3) CTC 470 [Ganapathy Thevar v. Shanmuga Thevar]; certain excerpts from it would run thus:
"14. .......The Court cannot assume the role of an expert in comparing the disputed handwriting with that of the admitted ones. No doubt, the Court as per Section 73 of the Evidence Act, in certain circumstances could exercise its power with caution. In such an event, it is the bounden duty of the Court to specify clearly as to what are the salient features based on which the finding is arrived at.
15. It is common knowledge that the science of analysing the questioned documents contemplates certain principles and theories. Here, both the Courts below were not objective in analysing the impugned handwriting.
16. No carte blanche is given to any Court to simply compare the disputed handwriting with that of the admitted handwritings and arrive at a subjective satisfaction about the similarities and dissimilarities. There should have been reasons set out for arriving at such conclusion, but here, both the Courts below have not resorted to such a procedure. The subjective satisfaction of both the Courts below cannot be taken in favour of the defendant."
19. A mere poring over and perusal of the cited provision of law and the aforesaid decisions would unambiguously and unequivocally, pellucidly and palpably make the point clear that before placing reliance on an expert's opinion, the Court should give reasons for that. It is open for the Court either to accept or reject the expert's view on sound reasons. On bare subjective satisfaction, the Court would not be justified in placing reliance on expert's opinion. Only after recording the objective reasons, the Court can place reliance on the expert's opinion. Here in the impugned judgement, the trial Judge has not done so.
20. The learned counsel for the appellant/defendant would point out that while trying to get opinion from the expert, appropriate documents containing admitted sample signatures were not sent.
21. I am at a loss to understand as to what the defendant was doing before the trial Court. The defendant also should have been vigilant enough in taking precautions. Ante litem motam documents bearing admitted signatures, should be the basis for comparison of signatures and rendering opinion.
22. I recollect and call up the following maxim:
"Vigilantibus et non dormientibus jura subveniunt' - The laws aid the vigilant, not those who sleep.
23. Be that as it may. Now then it is clear that the trial Court, despite knowing about the defects, simply over looked those defects and rendered the judgement, warranting interference by this Court.
24. The learned counsel for the respondent/plaintiff would appropriately and appositely, convincingly and legally submit that holus-bolus an expert's opinion should not be upturned and fresh opinion sought for. The expert concerned should be summoned, at the first instance, and he should be examined. The expert is expected to give reasons in support of his opinion. Whereupon the party concerned, at their discretion, can cross-examine the expert. Thereafter if the Court is of the opinion that necessary ante litem motam sample documents containing admitted signatures were not sent earlier and that there are defects in the opinion of the expert, then only the Court could call for fresh report by sending additional documents.
25. Here, as expected by the learned counsel for the respondent/plaintiff, retaining the appeal, in the facts and circumstances of the case, and directing the lower Court to do the needful, as contemplated supra, would not be proper. Furthermore, if all those exercises are to be undertaken by this Court itself, it would be amounting to converting the appellate Court into a trial Court. Over and above that the appellant/defendant also filed petitions to adduce additional documents.
26. I would like to point out that Order 41 Rule 27 of the C.P.C. would contemplate that additional evidence is permissible if at all the ingredients contemplated in those provisions are satisfied.
27. I would like to point out that while deciding issue No.(ii), the lower Court has not even had in its mind Sections 16 and 20 of the Specific Relief Act and also the decisions emerged thereunder.
28. At this juncture, I would like to recollect the following decisions of the Honourable Apex Court emerged under Sections 16 read with Section 20 of the Specific Relief Act:
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus:
"40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations."
(ii) (2011) 1 SUPREME COURT CASES 429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus:
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
29. In fact, the trial Court, in paragraph No.23, has held as follows:
"23.. . . . . . . . . Mere pleadings is sufficient to prove his readiness and willingness to perform his part of the contract. ................" (emphasis supplied)
30. The Apex Court's judgement referred to supra would highlight that mere pleadings is not sufficient to prove readiness and willingness on the part of the plaintiffs in a suit for specific performance, but there should be proof to that effect.
31. I would also like to refer to the following judgement of the Honourable Apex Court:
(2010) 8 SCC 423 [ Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries and others) ]. Certain excerpts from it would run thus:
10. ....................."An objection to the admissibility of the document can be raised before such endorsement is made and the court is obliged to form its opinion would depend, the document being endorsed, admitted or not admitted in evidence. In support of the submission he relied upon a decision of this Court in R.V.E.Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P.Temple where it was observed as follows: (SCC p.764, para 20) "20. .....The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself is inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court." (emphasis in original).
15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded."
32. A bare running of the eye over the above precedents would also exemplify and demonstrate that marking is different from proving a document or report. As such, the lower Court Judge should have kept himself appraised of the current provisions of law.
33. Wherefore, I am of the view that the judgement and decree of the trial Court should be set aside and matter remitted back to the trial Court with the following directions:
The lower Court itself shall summon the handwriting expert, at the cost of the plaintiff; whereupon, both the parties should be given opportunity to cross-examine the expert, if they so desire.
34. Regarding the additional evidence is concerned, it is for the parties to approach the lower Court with necessary affidavits and petitions; whereupon the same had to be decided on merits. The trial Court shall dispose of the matter within a period of three months from the date of receipt of a copy of this order. Both the parties shall appear before the trial Court on 12.3.2012.
35. The appeal is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petitions are closed.
Msk 9.2.2012
Index:Yes
Internet:Yes
Note to Office:
Issue order on 17.2.2012
To
The Principal Sub Judge, Pondicherry.
G.RAJASURIA,J.
msk
A.S.No.645 of 2008
and
M.P.Nos.1 & 2 of 2009
and 1 to 4 of 2011
9.2.2012