Madras High Court
Chandran Udayar vs Kasivel on 4 March, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2008 CORAM THE HON'BLE Mr.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.1680 of 2003 and C.M.P.No.11326 of 2003 Chandran Udayar ... Petitioner / Respondent /Plaintiff Vs. Kasivel ... Respondent/Defendant/Appellant This petition has been filed under Section 115 of Civil Procedure Code to set aside the judgement and decree dated 11.11.2002 made in A.S.No.184/2001 on the file of Principal District Court, Villupuram District, Villupuram reversing the judgement and decree dated 18.07.2001 made in O.S.No.82/1999 on the file of First Additional District Munsif Court, Thirukoilur. For Petitioner : Mr.Thirugnanam For Respondent : Mr.C.N.Anbuchozhan O R D E R
The Civil Revision Petitioner / Respondent / Plaintiff has filed the present revision before this Court as against the judgement and decree dated 11.11.2002 passed by the learned Appellate Authority viz., Principal District Judge, Villupuram in A.S.No.184/2001 in O.S.No.82/1999, on the file of learned First Additional District Munsif, Thirukoilur.
(2) The Revision Petitioner / Plaintiff has filed a suit in O.S.No.82/1999 on the file of the learned First Additional District Munsif, Thirukoilur against the Respondent / Appellant / Defendant for a recovery of a sum of Rs.24,610/- with interest thereto, along with costs, on the basis of execution of a Promissory Note dated 10.07.1996 by the Respondent / Defendant. After contest, the Trial Court passed the judgement dated 18.07.2001 in favour of the Revision Petitioner / Plaintiff.
(3) Aggrieved against the judgement dated 18.07.2001 passed by the learned Trial Court viz., learned First Additional District Munsif, Thirukoilur, in O.S.No.82/1999, Respondent / Defendant filed A.S.No.184/2001 on the file of learned Appellate Authority viz., Principal District Judge, Villupuram. The learned Appellate Authority viz., the Principal District Judge has allowed the appeal in A.S.No.184/2001 on 11.11.2002, reversing the judgement and decree of the learned First Additional District Munsif, Thirukoilur made in O.S.No.82/1999 dated 18.07.2001 and resultantly dismissed the suit.
(4) According to the learned counsel for the Revision Petitioner / Plaintiff, the Appellate Court has erred in coming to the conclusion that the suit Promissory Note is a fabricated one and that the Appellate Court has committed an error in comparing the signature found in Ex.A1 Promissory Note with the admitted signature without getting the opinion of an expert and that the reasoning assigned by the Appellate Court in dismissing the suit are unsustainable both in law and on facts of the case and therefore prays for allowing the Civil Revision Petition.
(5) The main grievance of the Revision Petitioner / Plaintiff is that when once the execution of Promissory Note is established in the case, the burden shifts on the Respondent / Defendant in regard to the execution and non receipt of consideration and these were not taken into consideration by the Appellate Court, which has resulted in miscarriage of justice.
(6) Before the Trial Court on the side of the Revision Petitioner / Plaintiff P.W.1 to P.W.3 were examined and Ex.P1 to P3 were marked. On the side of the Respondent / Defendant, DW1 was examined and Ex.B1 and B2 were marked.
(7) It is the plea of the Respondent / Defendant that he never borrowed any amount from the Revision Petitioner / Plaintiff and that the suit Promissory note is a rank forgery and a close relative of the Revision Petitioner/Plaintiff one Natarajan, asked the Respondent/Defendant to sell his house and since the Respondent/Defendant refused the same, with connivance and assistance of their yesman the suit Promissory Note has been fabricated. The further stand of respondent / defendant is that the signature in the Pronote does not belong to him.
(8) It is pertinent to point out that the Trial Court has opined that 'the discrepancy found in the evidence of PW2 Pandurangan, in regard to the writing of the Promissory Note will not affect the totality of the case', and that the signature of the defendant found in the Promissory Note has been established through the PW2 Pandurangan (witness in the Promissory Note) and PW3 Natarajan (writer of the pronote) and has come to the further conclusion that the Respondent / Defendant has received the consideration amount of Rs.20,000/- and executed the Promissory Note and decreed the suit accordingly.
(9) The learned Appellate Authority viz., the Principal District Judge, Villupuram, in the judgement in A.S.No.184/2001 dated 11.11.2002 has inter-alia observed that ' a material discrepancy has come out from the oral evidence of P.W.1 to 3 with regard to the time when the suit Promissory Note was executed etc.,' He has also further observed that ' comparison of disputed signature with the admitted signatures should also be done in the light of the discrepancies in evidence of plaintiff's witnesses'. In short, the learned Appellate Authority viz., Principal District Judge, Villupuram has held that 'oral evidence of PWs 1 to 3 remain with material contradictions as to the time of execution of Ex.A1 as well as purchase of stamp and paper for Ex.A1 by defendant. Ex.A1 does not appear to be genuine on the face of it. The disputed signature do not tally with the admitted signatures. There is no room to believe that Ex.A1 bears signatures of defendant. Comparison of signatures by this Court on the back drop of circumstances in this case has paved way to hold that Ex.P1 is a fabricated document.' Moreover, learned Appellate Authority, viz Principal District Judge, Villupuram has observed that 'All the signatures in Ex.B1, B2, Vakalat of defendant, written statement his deposition and Ex.A3 are similar. They are all entirely different from the signature available in Ex.A1' (10) The learned counsel for the Respondent / Defendant cited the decision 2005(3) CTC Page 12 in P.Sood & co., (Manufacturing, represented by its Partner, Krishna Kumar Sood, 218, Linghi Chetty Street, Chennai 1 Vs. Peerchand Misrimalji Bhansali, Prop., Meena Metals, No.74, C.P.Road, Bombay 400 054, wherein it is held as follows:
Evidence Act, 1872, Section 45 Expert opinion Signature in particular document disputed by defendant Defendant had denied signature even in reply notice and also in written statement Plaintiff ought to have taken steps for examination of a disputed signature by handwriting expert.
(11) He also relied on 2007-2-L.W.450 between Sakthivel, Petitioner Vs.Dhandapani, Respondent wherein in it is interalia laid down as follows:
A person's signature may change or vary with the passage of time and the signature of the person concerned involved in the case on hand is not an exception to this common phenomenon Apart from that, burden is on the plaintiff to prove that the alleged Promissory note was executed by the defendant It is for him to take necessary steps, if signature found in the promissory note is denied by the defendant Defendant has filed the petition belatedly He has not filed the petition at the earliest point of time particularly before the suit was decreed exparte Enormous delay and latches on the part of the respondent/defendant thereby protracting and holding up the proceedings had been lost sight of by the court below Order set aside/CRP allowed.
(12) In 1997(1) MLJ 133 between Kamalesan Vaidyar, Appellant Vs.P.Eswara Pillai, Respondent, among other things it is held as follows:
'Therefore, it cannot be legitimately contended in this case that the decision by the courts below came to be rendered entirely on the basis of a comparison undertaken by the learned trial judge without the assistance of a hand-writing expert. It may also be stated at this stage that the need for the court taking the assistance of a hand writing expert is not a must in all cases as a matter of course and as an universal principle or requirement. Whenever there is a dispute raised with reference tot he execution or dispute relating to the signature found in the document under contest. If there are other facts sufficient to prove due execution when de hors the need for comparison or taking the assistance of the expert the burden is on equally the person denying the execution of the document, to have a handwriting expert examined on his side. After all proof of signature of the executant is only to prove due execution and if such execution could be proved, as in this case successfully by other materials and the comparison was undertaken by the court only incidentally to have the position doubly assured the same cannot be said to be a serious infirmity. Adopting or giving credence to such a stand taken for the appellant would, in my opinion, result in grave injustice and the courts, therefore, must also be left with some discretion without in every case being driven invariably to the necessity of getting an expert's opinion before deciding a case. As a matter of fact, even in the cases adverted to, never it was held that either the Courts have no power or that it is precluded from doing so, in law. That is why, in all the judgments courts in the Country were administering caution to courts, subordinate to be more prudent and observe great circumspection, in such cases. In this case, in my view, the learned trial judge has exercised his discretion in this regard reasonably and no infirmity could be pointed out on this account with the finding recorded by the courts below that the suit pro-note was really executed by the defendant. Consequently, I see no merit in the challenge made to the judgement of the learned trial judge.' (13) It cannot be gainsaid that an expert opinion is nonetheless opinion evidence. As a matter of fact, the power of court to compare signatures should be sparingly used and with caution. It is true that opinion of a handwriting expert is relevant as per Section 45 of the Evidence Act, but that too is not conclusive. There can be no doubt that an expert witness in a adversary litigation can furnish information to the judge on matters calling for expertise.
(14) At this juncture it is quite apt to cite the decision AIR 1979 SC 14 and 15, between State (Delhi Administration), Appellant V. Pali Ram, Respondent, whereby and whereunder it is observed as follows:-
'It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may from its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or jury to determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence.' (15) In fact when the evidence of a handwriting expert is not corroborated, court can furnish corroboration by comparing the handwriting and come to a conclusion in the considered opinion of this court. When an expert opinion is given, it is the duty of the court to see for itself and with the assistance of an expert come to its own conclusion whether it can safely be held that the two writings are by the same person. No wonder, the handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing in regard to the points of similarity and dissimilarity in the two sets of writing, the court should then compare the handwriting with its own eyes for a proper assessment of the value of the total evidence.
(16) It is not out of place to point out although there is no legal bar to a judge using his own eyes to compare disputed writing with the admitted writing, even without the aid of evidence of any handwriting expert, the judge should as a matter of prudence and caution, hesitate to base his finding with regard to the identity of handwriting and therefore it is not advisable that a judge should take upon himself the task of comparing the admitted writing with the disputed one in order to find out whether the two agree with each other and prudent course is to obtain the opinion and assistance of an expert.
(17) In short, the opinion of handwriting expert may be relied upon along with other various items of external and internal evidence relating to document in question. Moreover, handwriting expert opinion is not conclusive and should be given some consideration and weight when it is corroborated by other evidence, in the considered opinion of this court.
(18) As far as the present case is concerned, the Trial Judge viz., the First Additional District Munsif, Tirukoilur in the judgement in O.S.No.82/1999 dated 18.07.2001 and the learned Appellate Authority viz., the Principal District Judge, Villupuram in the judgement in A.S.No.184/2001 dated 11.11.2002 have arrived at a different conclusion in regard to the execution of a Promissory Note and it is the categorical finding of the learned Appellate Court viz., Principal District Judge, Villupuram that the Ex.P1 Pronote dated 10.07.1996 is a fabricated document. Admittedly, in the instant case handwriting expert's opinion has not been obtained in regard to suit Pronote dated 10.07.1996. Suffice it to point out that the weight of evidence of expert depend upon reasonableness and scientific quality.
(19) Be that as it may, in view of the divergent views taken by the courts below and in view of the fact that court is not supposed to function as an expert witness to compare the disputed writing, this Court without expressing any opinion on the merits of the case, is of the firm opinion that the Pronote dated 10.07.1996 is necessarily to be sent for obtaining the opinion of handwriting expert (on the facts and circumstances of the case) and in that view of the matter, this court allows the Civil Revision Petition by setting aside the (1)Judgement passed by the learned Trial Judge viz., the First Additional District Munsif, Tirukoilur dated 18.07.2001 in O.S.No.82/1999, and (2)Judgement passed by the learned Principal District Judge, Villupuram in A.S.No.184/2001 dated 11.11.2002 to prevent aberration of justice and in furtherance of promoting substantial cause of justice. Resultantly, this court remits the matter back to the Trial Court viz., the learned First Additional District Munsif, Tirukoilur for disposal in accordance with law. Further, the Revision Petitioner / Plaintiff is directed to take steps for obtaining the opinion of handwriting expert by filing necessary application before the Trial Court, in order to prove that the alleged Pronote has been executed by the defendant in view of the specific denial of signature by the defendant found in the Pronote. The Trial Court, after obtaining the report of handwriting expert in the matter and taking his assistance is to arrive at a conclusion in disposing of the case by providing adequate opportunity to both parties to let in further oral and documentary evidence in accordance with law. Bearing in mind the facts and circumstances of the case, the parties are directed to bear their own costs in this revision. Consequently, the connected miscellaneous petition is closed.
M.VENUGOPAL, J.
asr
20. Further, the Trial Court viz., the First Additional District Munsif, Tirukoilur after restoring O.S.No.82/1999 to its file, is directed to dispose of the same within 6 months from the date of receipt of copy of this Order, uninfluenced by the observations made by this Court in this revision.
04.03.2008 Index : Yes Internet : Yes To
1)The First Additional District Munsif, Tirukoilur
2)The Principal District Judge, Villupuram Order in C.R.P.(NPD) No.1680 of 2003