Madras High Court
P.Natarajan vs Parasuraman on 27 January, 2009
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.01.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD).785 of 2008 and M.P.No.1 of 2008 P.Natarajan ... Petitioner vs. 1. Parasuraman 2. Lalitha Ammal ... Respondents This civil revision petition is preferred against the order dated 09.01.2008 passed by the learned Principal District Munsif, Tindivanam in I.A.No.1666 of 2006 in O.S.No.399 of 2006. For Petitioner : Mr.V.Bhiman For Respondent 2 : Mr.T.Dhanasekaran for R2 ORDER
Animadverting upon the order dated 09.01.2008 passed by the learned Principal District Munsif, Tindivanam in I.A.No.1666 of 2006 in O.S.No.399 of 2006, this civil revision petition is focussed.
2. Heard both sides.
3. A "resume" of facts, which are absolutely necessary and germane for the disposal of this revision would run thus:
The revision petitioner herein filed the suit in O.S.No.399 of 2006 based on the suit agreement to sell. During the pendency of the suit, I.A.No.1666 of 2006 was filed seeking to compare the signature of the first respondent in Ex.A1 with that of his vakalat and written statement with the help of handwriting expert. Ultimately, the trial Court dismissed it. Being aggrieved by and dissatisfied with the same, the present civil revision petition has been filed on various grounds.
4. The learned counsel for the revision petitioner, placing reliance on the grounds of revision, would develop his argument to the effect that the lower Court misdirected itself and simply found that comparison of the disputed signature should not be made with the signatures made in the vakalat and written statement. He would also invite the attention of this Court to the decision of the Hon'ble Apex Court reported in AIR 1979 SC 14 (State [Delhi Administration] vs. Pali Ram). An excerpt from it would run thus:
"34. Accordingly, we allow this appeal, set aside the judgment of the High Court, and restore the order dated May 20, 1972, of the Magistrate who may now repeat his direction to the accused to write down the sample writing. If the accused refuses to comply with the direction, it will be open to the Court concerned to draw under Section 114, Evidence Act, such adverse presumption as may be appropriate in the circumstances. If the accused complies with the direction, the Court will in accordance with its order dated May 20, 1972, send the writing so obtained, to a senior Government Expert of Questioned Documents, named by it, for comparison with the disputed writing and then examine him as a Court witness."
It is also the specific contention of the learned counsel for the revision petitioner that earlier the Division Bench of this Court in the decision reported in 2006 (3) LW 58 (Central Bank of India vs. Antony Hardware Mart) held as though the Court should not compare the disputed signature with the signature of the defendant in the vakalat and the written statement; but the said Judgment was passed without taking into consideration the decision of the Hon'ble Apex Court cited supra. In fact, the learned counsel for the revision petitioner would try to press into service the concept, judgment rendered "sub silentio". In this connection, I would like to extract the relevant portion of from Salmond jurisprudence in 12th edition at page No.155.
"..... The earlier case the court before whom the precedent is cited may be reluctant to hold that its predecessor failed to consider a point directly raised in the case before it (o), and this reluctance will be particularly pronounced if the sub silentio attack is levelled against not one case but a series(p).
We now turn to the wider question whether a precedent is deprived of its authoritative force by the fact that it was not argued, or not fully argued, by the losing party. If one looks at this question merely with the eye of common sense, the answer to it is clear. One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. Where a judgment is given without the losing party having been represented, there is no assurance that all the relevant considerations have been brought to the notice of the Court and consequently the decision ought not to be regarded as possessing absolute authority, even if it does not fall within the sub silentio rule.
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...........................................................................If there is a general exception for unargued cases, the sub silentio rule turns out to be merely a particular application of a wider principle."
In such an event, the learned counsel for the revision petitioner should pray for referring the matter to a larger Bench so as to get the law settled.
6. Whereas the learned counsel for the respondent would invite the attention of this Court to the same Division Bench judgment reported in 2006 (3) LW 58 and develop his argument that the said judgment is specifically on the point that a Court should not compare the disputed signature with the signatures found in the vakalat and the written statement and much of a muchness could be seen between the facts involved in the case and the one in the case decided by the Division Bench of this Court; hence, the learned counsel for the revision petitioner cannot try to highlight that the said decision of the Division Bench of this Court was rendered without considering the Apex Court's decision cited supra.
7. When all said and done, considering the pro et contra in this factual matrix, I would like to highlight and spotlight the fact that the learned counsel for the second respondent is right in his argument that the Division Bench of this Court in the decision reported in 2006 (3) LW 58 laid down a broad proposition of law that the Court should not compare the disputed signature with the signatures found in the vakalat and written statement of the defendant. Even though the Division Bench referred to the earlier Apex Court's decision, nonetheless it does not refer to the decision cited herein by the learned counsel for the revision petitioner.
8. Be that as it may, I am of the view that in this case, peculiarly the plaintiff has not taken any steps to secure the ante litem motem signature of the defendant concerned for which, the learned counsel for the plaintiff would submit that as a plaintiff, he did not have had any opportunity of knowing about the ante litem motem signature and it is for the defendant to voluntarily place his signatures before the Court; whereupon the plaintiff would pray for referring the disputed signature to the expert for comparing the same with the ante litem motem signature of the defendant. No steps has been taken at all by the plaintiff, in that regard. It appears the party was not posted with such measures to be taken.
9. Hence, I am of the considered opinion that one more opportunity could be given to the plaintiff to try to secure the ante litem motem signature of the defendant and the defendant is also directed to furnish from his own endeavour his anti litem motem signatures. The lower Court, after furnishing of such particulars by the defendant, refer the matter to the expert for opinion.
10. Learned counsel for the second respondent would make a submission that the plaintiff himself is aware of the previous litigation that emerged between them and in that the admitted signature of the defendant herein is also available. It is for the defendant to file a detailed memo before the lower court highlighting such aspect; whereupon the plaintiff would be at liberty to take steps, in addition to the plaintiff taking steps to get the anti litem motem signature of his own accord and effort.
11. The learned counsel for the revision petitioner also would make an extempore submission to the effect that some time frame may be fixed for early disposal of the suit. In view of the above submission, the lower court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order.
12. This civil revision petition is disposed of accordingly. No costs. Consequently, the connected miscellaneous petition is closed.
vj2 27.01.2009 Index :Yes Internet :Yes Note: Issue order copy on 02.02.2009 G.RAJASURIA,J vj2 To The Principal District Munsif, Tindivanam C.R.P.(PD).785 of 2008 27.01.2009