Calcutta High Court (Appellete Side)
Sri Mrinal Kanti Panda vs Sri Tapan Kumar Kamila & Ors on 16 May, 2012
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
and
The Hon'ble Mr. Justice Mrinal Kanti Sinha
F.A. No. 142 of 2007
Sri Mrinal Kanti Panda
-Versus-
Sri Tapan Kumar Kamila & Ors.
For the Appellant : Mr. Bhudeb Chatterjee
Ms. Somoshree Saha
Mr. Sanjib Kumar Ghosh
For the Respondent : Mr. Bhaskar Ghosh
Mr. Samiran Giri Heard on : May 5, 2012.
Judgment on : May 16, 2012. ASHIM KUMAR BANERJEE.J:
The plaintiff, the respondent above named filed a suit against the appellant for specific performance of a contract whereby the father of 2 the appellant sought to agree to sell the subject property to the respondent at and for a sum or Rs.1.5 lacs. It was also asserted that a sum of Rs.70001/- had already been paid on April 12, 1995 as and by way of part consideration. His father agreed to sell it as he was in acute need of money for maintenance of his own dwelling house. After the death of the father of the appellant, respondent filed the suit being Title Suit No.26 of 2005 as against the appellant for specific performance of the said contract. The appellant filed written statement denying the agreement for sale as also part consideration. The appellant denied the signature purported to be appearing on the said document stated to be of his father. The appellant also denied the signature of the witnesses including the one said to be his signature appearing in the said document. The appellant contended that the respondent forcibly occupied the suit property by breaking open the padlock. He, however, did not lodge any complaint as admitted by him at the time of adducing of evidence. At the instance of the appellant, the signature was examined by a handwriting expert who came and deposed as DW-2 According to expert, the signatures were not genuine. In case of appellant, we also found discrepancy in his signatures appearing at pages 167-169 and the one appearing in 3 the purported agreement for sale. The learned Judge, however, disbelieved the handwriting expert. The learned Judge of his own compared the signatures and came to a finding that those were genuine signatures. The learned Judge decreed the suit. Hence, this appeal.
We heard the learned counsel for the parties.
Mr. Bhudeb Chatterjee, learned counsel appearing for the appellant contended that the tenor of the agreement was unilateral and executory in nature. Hence, the learned Judge should not have decreed the suit based upon the said agreement. He referred to the decision in the case of Mayawanti -VS- Kaushalya Devi reported in 1990 Volume-III Supreme Court Cases Page-1 where the Apex Court observed that there must be a valid and binding contract between the parties and burden of proof of such validity would lie upon the plaintiff seeking specific performance of the contract. Citing the said decision, Mr. Chatterjee contended that once the defendant disputed the agreement the plaintiff must prove 4 the same beyond doubt to get a decree of specific performance. He also cited the Apex Court decision in the case of O. Bharathan - VS- K. Sudhakaran & Anr. reported in All India Reporter 1996 Supreme Court Page-1140. The Apex Court therein observed, "though it is the province of the expert to act as Judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to the ultimately rendered." Opposing the appeal, Mr. Bhaskar Ghosh, learned senior counsel appearing for the respondent contended that the report of the handwriting expert was not scientific as no chemical test was done to find out the authenticity of the disputed signatures. The handwriting expert gave his opinion on physical verification without conducting any chemical examination. Mr. Ghosh relied upon two Apex Court decisions in the case of Shashi Kumar Banerjee & Ors. -VS- Subodh Kumar Banerjee reported in All India Reporter 5 1964 Supreme Court Page-529 and in the case of Magan Bihari Lal -VS- The State of Punjab reported in All India Reporter 1977 Supreme Court Page-1091.
In the case of Shashi Kumar Banerjee (Supra), the Apex Court considered the signature appearing in the will of the testator and examined the same from various angle and ultimately observed, "it is necessary to observe expert's evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence." In the case of Magan Bihari Lal (Supra), the Apex Court took a similar view on the evidence of the expert.
Mr. Ghosh lastly contended that the respondent prayed for amendment of the plaint where indication was given that on an examination of the disputed signature with admitted signatures the plaintiff's case would automatically stand.
6We have considered the rival contentions. In our view once the defendant denied the signature appearing in the agreement and adduced evidence of the handwriting expert to substantiate such defence it was incumbent upon the plaintiff to have the said opinion verified from another independent agency or to have a second opinion on the same. The Court below merely disagreed with the opinion and examined the signatures of its own and compared the same with the admitted signatures and came to a definite conclusion that the agreement was a genuine one. Such finding, in absence of appropriate expertise, cannot be sustained. The plaintiff did not produce any contrary opinion from any expert. The plaintiff did not specifically apply for verification of the signature through any other independent agency. In such event, two options were left open to the Court, either to dismiss the suit on the basis of the opinion as adduced by the expert brought by the defendant or to direct verification of the signatures through any other independent agency. The learned Judge did not adopt either of the said procedures and proceeded to examine of his own. We are unable to put our seal of approval on the said procedure.
7The appeal succeeds and is allowed. The judgment and decree, passed by the Court below, is set aside. The suit is remanded back to the learned Judge for being heard afresh. The parties would be at liberty to rely upon the evidence that was had earlier. The parties would be at liberty to adduce further evidence in the light of the discussions as above. The disputed signatures as also the admitted signatures be sent to the appropriate Central Forensic Institute and/or any other authorised Institute prescribed therefor, to verify the disputed signatures. Such report must be had before the suit is taken up for final hearing. The parties would be at liberty to have copy of the said report before the hearing so that they could make their submissions on the same including applying for "exception to report" if they so like. The learned Judge, upon considering each and every aspect including the report to be submitted by the independent agency as also the objections, if any, on that score would dispose of the suit in accordance with law. Since the issue is long pending we would expect the Court below to act as expeditiously as possible, subject to its pre-occupation and convenience.
8The appeal is disposed of accordingly without any order as to costs. The lower court records be sent down at once.
Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.
Mrinal Kanti Sinha, J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [MRINAL KANTI SINHA,J.]