Madras High Court
V.Pandi vs M.Thyagarajan on 18 July, 2012
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 18-07-2012
CORAM
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
C.R.P.PD.Nos.2317 TO 2320 OF 2012
C.R.P.PD.Nos.2317 to 2319/2012 :
1.V.Pandi
2.D.Dass
3.M.Sivakumaran
4.P.Ramasamy ... Petitioners
-vs-
1.M.Thyagarajan
2.S.Doraisamy
3.A.Palanisamy
4.V.Srinivasan
5.P.Govindasamy
6.M.Palanisamy
7.S.S.Kaliappan
8.G.Ganapathy
9.B.Easwaran
10.R.Dharmalingam ... Respondents
C.R.P.PD.No.2320/2012 :
1.S.Parthasarathy
2.V.Pandi
3.D.Dass
4.R.Ayyasamy
5.M.Sivakumaran
6.M.Arumugam
7.P.Ramasamy
8.Selvaraj
9.R.Nagendiran ... Petitioners
-vs-
1.The Coimbatore Periar District Dravida
Panchalai Thozhilar Munnetra Sangam,
rep.by its General Secretary Mr.S.Duraisamy,
No.69, Tatabad, 3rd Street,
Coimbatore.
2.S.Doraisamy
3.M.Thyagarajan
4.R.Dharmalingam
5.K.Ramachandran
6.Gunasekaran
7.A.Palanisamy
8.G.Ganapathy
9.P.Govindasamy
10.M.Palanisamy
11.S.S.Kaliappan
12.V.Srinivasan ... Respondents
Petitions under Article 227 of the Constitution of India.
For petitioners in all C.R.Ps.: Mr.P.Wilson,
Senior Counsel,
Mr.B.Ullasavelan.
For respondents in all C.R.Ps.: Mr.N.G.R.Prasad.
COMMON ORDER
While C.R.P.PD.Nos.2317,2318 and 2319 of 2012 are filed against the orders of the Principal District Judge, Coimbatore, dated 27.02.2012, passed in I.A.Nos.2414 of 2011,113 and 208 of 2012 respectively in O.S.No.615 of 2010, rejecting the prayer of the petitioners to direct the Official Receiver to take possession of the suit trade union's properties situated at Udumalpet and Tiruppur, and to adjourn the suits till the Official Receiver takes possession of the entire properties of the suit Sangam, C.R.P.PD.No.2320 of 2012 is filed against the order of even date passed in I.A.No.209 of 2012 in O.S.No.228 of 2010 on the file of the same Court, in and by which the prayer to send the documents, namely, the election notice Ex.B-45, along with the documents which are marked as Exs.A1,A2,A5,A16,A21,A24 to A26,B2,B10 to B27, B31,B40,B41 and the admitted signatures of Duraisamy, 2nd plaintiff-PW1, contained in the vakalath, written statement, additional written statement, affidavit, deposition of P.W.1 in O.S.No.228 of 2010 and affidavits in I.As.565 of 2010,556 of 2010 and 567 of 2010, to the signature expert for comparison with the signature in Ex.B45 and to report, was rejected.
2. The case of the petitioners, who are the plaintiffs in O.S.No.615 of 2010 and defendants in O.S.No.228 of 2010, is that though there was direction by this Court in C.M.A.Nos.1308 and 1309 of 2010 to the Official Receiver to take possession of the suit properties, some of the properties are yet to be taken possession of. Hence, they filed the applications in I.A.Nos.2414 of 2011 and 113 of 2012 under Section 151 CPC and I.A.No.208 of 2012 under Order 17 Rule 1 read with Section 151 CPC in addition to I.A.No.209 of 2012 under Section 73 of the Indian Evidence Act read with Section 151 CPC for the prayers as stated above.
3. The above applications of the petitioners were dismissed by the trial Court, holding that the Official Receiver has to take possession of the properties as has been directed by the Hon'ble High Court in C.M.A.Nos.1308 and 1309 of 2010 and therefore no further direction need be passed. With regard to I.A.No.209 of 2012, the trial Court held that Ex.B-45 is only a photo copy and therefore it cannot be sent to the signature expert for comparison, in addition to holding that the applicants have let sufficient evidence in support of their case.
4. Learned Senior Counsel for the petitioners would contend that the trial Court has erred in rejecting the prayer of the petitioners to direct the Official Receiver to take possession of the suit trade union's properties situated at Udumalpet and Tiruppur, and to adjourn the suits till the Official Receiver takes possession of the entire properties of the suit Sangam. He would also contend that the rejection of the prayer of the petitioners by the trial Court to send the documents, namely, the election notice Ex.B-45, along with the documents which are marked as Exs.A1,A2,A5,A16,A21,A24 to A26,B2,B10 to B27, B31,B40,B41 and the admitted signatures of Duraisamy, 2nd plaintiff-PW1, contained in the vakalath, written statement, additional written statement, affidavit, deposition of P.W.1 in O.S.No.228 of 2010 and affidavits in I.As.565 of 2010,556 of 2010 and 567 of 2010, to the signature expert for comparison with the signature in Ex.B45 and to report, was illegal. In support of his contentions, he would rely upon the following decisions of this Court :
(i) Karvannan v. Gopal Padayachi, 2001 (3) CTC 408 :
"16.....When the plaintiff himself has not asked the court to take specimen signature of the defendant, for getting them compared by the expert, learned munsif seems to have directed the defendant to affix his signature in a document and he has also marked certain admitted records connected with the case wherein the signatures of the defendant were also found. He has proceeded to compare the specimen signature obtained by him and has commented upon it. The plaintiff has not explained as to why he has not sought for the opinion of the expert in respect of the alleged signature obtained in Ex.A.1. Therefore, the court need not have taken the trouble of comparing the signature. No doubt, it is open to the court to compare and come to a conclusion. But even such conclusion has to be based on reasonings and must be the comparison on the disputed signature with the admitted signature. So, there has been total misreading of evidence and material records have not been given due consideration, whereas the oral evidence adduced on the side of the plaintiff has been accepted without giving sufficient reasons. The conclusion and reasoning of the courts below appear to be perverse and anyhow not supported by material evidence. Therefore, I am of the opinion that this court is very well justified in interfering with the finding and conclusions of the courts below by allowing the second appeal. On the other hand, there are documentary evidence in respect of the case of the defendant, which has not been properly considered by the courts below. Therefore, I have no hesitation in reversing the judgment and decree of the courts below."
(ii) Central Bank of India v. Antony Hardware Mart, 2006 (3) CTC 39 :
"14.In the judgment in D.Pandi v. The Dhanalakshmi Bank Limited, by its Manager, having office at No.105, Mount Road, Madras-102,2001 (2) CTC 12 : 2001 (2) L.W.334, the Division Bench of this Court by relying upon a judgment of the Supreme Court of India in Gulzar Ali v. State of H.P., 1998 (2) SCC 192, has held as follows :
"In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Two modes are indicated by law in Sections 45 and 47 of the Evidence Act. Section 45 of the Act permits expert opinion to be regarded as relevant evidence and Section 47 permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. In this regard the following conclusion of the Supreme Court in Gulzar Ali v. State of H.P., 1998 (2) SCC 192, is relevant. Their lordships have held that it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections, namely Sections 45 and 47."
The Division Bench has further held that it is clear that though normally the Court should not take upon itself the responsibility of comparing the disputed signature with that of the admitted signature, undoubtedly, the Court is competent to compare the disputed signature with the admitted signature in view of Section 73 of the Act. However, if the Court has any doubt, it is incumbent on it to leave the matter to the opinion of an expert."
(iii) S.Murugesan v. V.Vijay Sai and Others, 2006 (5) CTC 560 :
"20.Section 73 of the Indian Evidence Act contemplates that the Court may compare the disputed signature, writing or seal of a person with the signature, writings or seals which have been admitted or proved to the satisfaction of the Court to have been written or made by that person. The Court may rely upon its own comparison of the signatures, writing or seal. There is no legal bar to the Court for using its own eyes to compare the disputed signature, writing or seal with the admitted signature, writing or seal under Section 73 of the said Act. Thus, the Trial Court after careful comparison of Ex.A-3 to A6 with Ex.A-1, came to the conclusion that the signatures found in Ex.A-1 and Exs.Aa-3 to A6 are not one and the same and they are not tallying with the admitted signature of the 1st Defendant."
(iv) P.Mani v. P.Viswanathan, 2008 (3) CTC 831 :
"49.In regard to the other plea raised on behalf of the appellant/plaintiff that dis-inheritance of others cannot be a suspicious circumstance it is to be pointed out that when the appellant/plaintiff takes the benefit under the Will, it is for him to prove and establish that the Will of the testatrix, Alamelu is natural and free from suspicious circumstances. Another important aspect to be noted in the case is that P.W.1 Mani viz., appellant/plaintiff has availed leave on 17.09.1986, the day on which the Will of Alamelu got registered in the Sub-Registrar's Office. Though P.W.1-appellant/plaintiff in his evidence has deposed that he availed the leave on 17.09.1986 for the purpose of visiting his village, his evidence is hardly to be believed, in the considered opinion of this Court. Admittedly, at the time of Will dated 17.09.1996 Alamelammal, the mother of P.W.1-appellant/plaintiff was about 70 years old. In fact, though P.W.1-appellant/plaintiff has stated in his evidence that he has not found out to whom his mother gave instructions for preparing the Will and though P.W.2-Kuppusamy in his evidence has stated that he was not told as to who drafted the Will etc., their evidence are not worthy of acceptance by this Court, in our considered opinion. As a matter of fact, P.W.2-Kuppusamy and the second attesting witness Palani and the third attesting witness Rajendran are only interested persons (P.W.2 residing opposite to P.W.1's house, Rajendran, the attestor working as Checking Inspector in the Transport Corporation and other attestor, Palani being a friend of P.W.1). Furthermore, a perusal of signature of Alamelammal in Tamil found in Exs.D.2 to D.4 are quite different from that of Ex.C.1.Xerox copy of the Will produced by witness Ravichandran, Junior Assistant of Sub-Registrar's Office, in our considered opinion."
(v)Arul Jothi & Co., rep.by its partner M.Chinnasamy and Others, 1998 (1) CTC 432 :
"5.Miss.Mals, learned counsel for the appellants vehemently contended that there was no material to show that the arrangement between the parties was open, mutual and running and the acknowledgment in March 1978 could not be in respect of earlier transactions, unless it was established that the parties had mutual, open and current account. It should be immediately pointed out that this point was not raised in defence before the trial Court or was canvassed before the lower appellate Court. It is therefore not open to the appellants to raise a new point for which no basis at all had been laid before the Courts below. It is next contended by the learned counsel for the appellants that the Courts below had compared the signature found in Ex.A24 with the admitted signature of the second appellant and in view of the latest Supreme Court decision reported in O.Bharathan v. K.Sudhakaran, 1996 (2) SCC 704 this would be a very unsafe method. The learned counsel also pointed out that this decision had been followed by a learned single Judge of this Court reported in Dhanakodi Padayachi v. Muthukumaraswami, 1997 (1) L.W.402. The decision of the Supreme Court arose under Election proceedings and the Supreme Court held that it was very unsafe in election matters to rely on mere comparisation of signatures to reach a finding regarding the genuineness of the signature. The case arose under Election proceedings will not apply to civil proceedings. No doubt, Raju, J.has followed the said decision. A Bench of this Court in Kanthirathinam v. Sajjadi Begum,1989 (1) L.W.552 has referred to the decision of the Supreme Court reported in Murarilal v. State of Madhya Pradesh, AIR 1980 SC 531 and held that there is nothing wrong in the Courts themselves making comparison of signatures to ascertain whether the documents in question are genuine or not. The next contention raised by the learned counsel is that the acknowledgment by the second defendant would not bind the first appellant firm and its other partners. In support of the contention the learned counsel relied on the judgment of this Court in Ramavel v. Pandian Automobile Private Limited, AIR 1973 Mad.359. This was referred to by the Courts below also and as has been rightly pointed out by the lower appellate Court that was a case in which a cheque payment was made by some third party and the same was sought to be treated as an acknowledgment of liability and this was not countenanced by the Court. The facts of that case will not apply to the facts of the present case. We have the high authority of a Veerabhadraswami @ Veerabhadrulu, 34 Mad.373 where there were circumstances available in the case, to hold that the acknowledgment by a partner could be taken as a valid acknowledgment in the absence of direct evidence of a specific authority by one partner with regard to the other partner. It has been found by the lower appellate Court that circumstances in the present case warranted such an interference. The learned District Judge relied on Exs.A-25 to A-32 which were orders for supply of goods from the plaintiff firm and they were all placed by the second appellant. He had acted on behalf of the first appellant firm and the other partners in placing orders for supply of goods from the respondent firm. It clearly showed that the second appellant had authority to act and acknowledgement on behalf of the first appellant firm. Now that it has been held that there was a proper and valid acknowledgment by the second appellant binding the other appellants and the acknowledgment had been made within three years and the last of the dealings between the parties and the suit having been filed within 3 years from the date of Ex.A-24, the finding reached by the lower appellate Court that the suit was not barred by limitation has to be upheld. I have alrelady found that there was enough material to come to the conclusion that the second appellant signed Ex.A-24 in his capacity as a partner and on behalf of the partnership firm, namely, the first appellant.
The acknowledgment in Ex.A-24 would be sufficient acknowledgment of the liability of the appellants to the respondent firm. Consequently all the substantial questions of law have to be answered against the appellants and the second appeal will stand dismissed. However, there will be no order as to costs."
5. Per contra, learned counsel for the respondents would submit that the orders passed by the trial Court are in accordance with law and no interference is called for with those orders. He would cite a decision of this Court reported in 2007 (5) MLJ 1417 in the case of J.Naval Kishore v. D.Swara Bhadran and Others, wherein it has been held as under :
"44. For more than one reason, we are unable to accede to the above contention. During trial, only xerox copy of the alleged family arrangement (Ex.P-8) was produced. Though the original is said to be in possession of Sumerji brother-in-law (sister's husband), neither the original was produced nor the Sumerji was examined. As per Section 67 of the Evidence Act, unless the non-production of original is satisfactorily explained, secondary evidence cannot be looked into. The possibility of manipulation in xerox copy cannot be ruled out. In the Tamil Nadu Industrial Investment Corporation Ltd., Chengai Transport Branch rep.by its Branch Manager v. N.Swaminathan and Others, 2002-4-L.W.147 one of us (F.M.I.K.J.) has observed that xerox copy is neither inferior in character vis-a-vis the originals and held as under :
"It will have to be borne in mind that xerox copies will not always tally with the originals and we cannot rule out the possibility of any interpolation being made in the xerox copies. In other words, xerox copies being inferior in character vis-a-vis originals, the dispensation of filing of the originals cannot be considered only under exceptional circumstances and not as a matter of routine."
6. I have heard the learned counsel for the parties and also gone through the records.
7. At the outset, it is to be stated that the petitioners as plaintiffs filed the suit in O.S.No.615 of 2010 on the file of the trial Court, praying for injunction restraining the respondents/defendants from interfering with the functioning of the plaintiffs as office bearers of Kovai-Periyar District Dravida Textile Mill Workers Progressive Sangam. Prior to the filing of the said suit, the respondents as plaintiffs filed the suit in O.S.No.228 of 2010 for a declaration that the election held on 24.03.2010, electing the petitioners herein and others as office bearers of Coimbatore Periyar District Dravida Panchalai Tholilalor Munnetra Sangam is ultra vires, for permanent injunction restraining the petitioners from projecting themselves as office bearers of the Sangam, and for mandatory injunction directing the petitioners to hand over all the documents, accounts, bank pass books, cheque books, minute book, statutory books etc. to the second plaintiff.
8. Both the above suits viz., O.S.No.615 of 2010 and O.S.No.228 of 2010 are tried together and evidence has been recorded. Both sides have also closed their evidence and the suits are posted for arguments.
9. At that stage, the petitioners filed applications in question viz., I.A.Nos.2414 of 2011 and 113 of 2012 before the trial Court to direct the Official Receiver to take possession of the suit trade union's properties situated at Udumalpet and Tiruppur and I.A.No.208 of 2012 to adjourn the suits till the Official Receiver takes possession of entire properties of the Sangam.
10. As a matter of fact, this Court, on 13.08.2010, on the appeals filed by the very same petitioners in C.M.A.Nos.1308 and 1309 of 2010, directed the Official Receiver to take possession of the properties, collect the rent and remit the same into the Court by operating a separate account and take inventory of the articles inside the property. Pursuant to the said order, it is seen from the records, that the respondents/defendants have handed over the possession of the properties to the Official Receiver. It is also seen that the defendants have stopped collecting the rents from the tenants of the properties of the Sangam. Also, this Court, by a further order, dated 02.12.2010, in the above C.M.As., made it clear that both the parties should cooperate in the matter of handing over the physical possession of the properties which are in their custody as well as those properties over which they have only symbolic possession and that the possession taken by the Official Receiver should be filed before the Court with a copy to the parties and necessary directions were also issued to the Official Receiver to expedite the stock taking of the property, indicating a time of four months for disposal of the suits. Therefore, it is the responsibility of the parties to hand over the possession of the properties to the Official Receiver. Following the same, several reports of various dates have been filed by the Official Receiver, taking possession of various properties and collecting rents from the tenants. If any property is left out, it is for the parties concerned to hand over the property and identify the tenants so as to enable the Official Receiver to take possession or collect the rent from the tenants.
11. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. The scope of Section 151 has been explained by the Supreme Court in a catena of decisions, in the following manner :
(a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is right and undo what is wrong, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process.
(b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.
(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code. (d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature.
(e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief.
(f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.
12. The power under Section 151 of the Code is not intended to be used routinely, merely for the asking. If so used, it will defeat the very purpose of various amendments to the Code to expedite trials. But, where the application is found to be bona fide, the court may exercise its discretion to order the said application. If it does so, it should ensure that the process does not become a protracting tactic. The court should firstly award appropriate costs to the other party to compensate for the delay. Secondly, the court should take up and complete the case within a fixed time schedule so that the delay is avoided. Thirdly, if the application is found to be mischievous, or frivolous, or to cover up negligence or lacunae, it should be rejected with heavy costs. The above is the law laid down by the Supreme Court in K.K.Velusamy v. N.Palanisamy, (2011) 11 SCC 275.
13. Order 17 Rule 1 CPC states that Court may grant time and adjourn hearing. As per the said provision, the Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded in writing provided that no such adjournment shall be granted more than three times to a party during hearing of the suit.
14. Section 73 of the Indian Evidence Act provides for Comparison of signature, writing or seal with others admitted or proved. As per the said Section, 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. It further provides that 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.
15. Keeping the above guidelines and the ratio laid down by the Supreme Court and also the rule position in mind, if we look at the present cases, it is to be stated that the direction as to the prayer of the petitioners is already granted by this High Court by orders, dated 13.08.2010 and 02.12.2010, in C.M.A.Nos.1308 and 1309 of 2010, and, therefore, the issues in C.R.P.PD.Nos.2317 to 2719 of 2012 are no more res integra, as they are res judicata. If the directions given earlier by this Court in the said proceedings and thereafter the trial Court are not complied with and the petitioners are still having any grievance, it is open for them to pursue the matter in those proceedings, but not in these C.R.Ps., which, if entertained, would amount to adjudicating the issues which are extinct and be an abuse of process of the Court by the petitioners.
16. As regards the C.R.P.PD.No.2320 of 2012, which has been filed to send the documents, namely, the election notice Ex.B-45, along with the documents which are marked as Exs.A1-,A2,A5,A16,A21,A24 to A26,B2,B10 to B27, B31,B40,B41 and the admitted signatures of Duraisamy, 2nd plaintiff-PW1, contained in the vakalath, written statement, additional written statement, affidavit, deposition of P.W.1 in O.S.No.228 of 2010 and affidavits in I.As.565 of 2010,556 of 2010 and 567 of 2010, to the signature expert for comparison with the signature in Ex.B45, it is to be mentioned that the evidence in both the suits viz., O.S.No.615 of 2010 and O.S.No.228 of 2010 has been recorded and closed and the suits are posted for arguments. At this belated stage, the prayer of the petitioners for sending the documents for comparison by a signature expert cannot be entertained. In the given situation, none of the decisions relied upon by the learned counsel shall have any reflection on the cases in hand.
17. The attempt of the petitioners in filing these petitions is only to drag on the proceedings, which, in the language of this Court, can be said to be a dilatory tactic. Therefore, these Civil Revision Petitions are dismissed,as they are frivolous, vexatious and totally misconceived. Though this Court is of the view to impose costs on the petitioners for having wasted much of its time, by taking a lenient view, the same is done away with. No costs. Consequently, the connected M.P.Nos.1 of 2012 are also dismissed.
18-07-2012 Index : Yes Internet : Yes dixit To The Principal District Judge, Coimbatore.
V.DHANAPALAN,J.
dixit C.R.P.PD.Nos.2317 TO 2320/2012 18-07-2012