Madras High Court
Vishnubalan vs Kavitha on 17 August, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 19.07.2022
Pronounced on : 17.08.2022
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.No. 185 of 2004
Vishnubalan ... Plaintiff/appellant/appellant
Vs.
1. Kavitha
2. Balachandran
3. Kalpana
4. Siva @ sivasankar
5. Thiagarajan
6. V.Natzrajan
7. Usharani
8. Anandaselvi ... Defendants/Respondents/Respondents
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the Judgment and Decree dated 23.09.2002
passed in A.S.No. 76 of 2002 on the file of the Additional District Court
(Fast Track Court II) Cuddalore, confirming the Judgment and Decree
dated 15.03.2001 passed in O.S.No. 276 of 1998 on the file of the
Principal District Munsif, Cuddalore.
https://www.mhc.tn.gov.in/judis
2
For Appellant : Mr. S.K.Raghunathan
For RR 1 to 4 : Ms. R.Meenal
For 5th Respondent : Mr. C.Vediappan
for Mr.C.Selvaraj
For RR 7 & 8 : Mr. P.Mani
For 6th Respondent : No appearance
JUDGMENT
The plaintiff in O.S. No. 276 of 1998 on the file of the District Munsif Court, Cuddallore is the appellant herein.
2. The suit in O.S. No. 276 of 1998 had been filed by the plaintiff, N.Vishnubalan seeking specific performance against the 1st to 4th defendants with respect to an alleged agreement of sale said to have been entered into by the plaintiff with the 1st and 2nd defendants and their father who acted as guardian of the m1nor 3rd and 4th defendants on 07.03.1996 in relation to the suit schedule property, vacant land measuring 1.00 acre at Kondoor Village, Cuddallore or in the alternative for return of the advance amount paid together with interest. The 5th https://www.mhc.tn.gov.in/judis 3 defendant was the power of attorney agent of the 1st to 4th defendants. The 6th to 8th defendants were subsequent purchasers of plots in the suit schedule property.
3. By judgment dated 15.03.2001, the learned District Munsif, Cuddallore dismissed the suit with costs, holding that it was evident even to the naked eye that the signatures of the 1st and 2nd defendants and their father in the alleged agreement of sale dated 07.03.1996 had been forged.
4. The plaintiff then filed A.S. No. 76 of 2002 which came up for consideration before the Additional District Judge/Fast Track Court No. 2, Cuddlallore. By judgment dated 23.09.2002, the appeal suit was also dismissed with costs confirming the aforementioned finding of fact.
5. Questioning the said judgment, the plaintiff then filed the present second appeal.
6. The second appeal had been admitted on the following substantial questions of law :
https://www.mhc.tn.gov.in/judis 4 “ 1. Whether the judgment and decree of the courts below vitiated by its failure to consider Ex. A1 in its proper perspective and the binding nature of the document ?
2. Whether the appellant is entitled to a decree for specific performance especially when the defendants who contended that the document is an invalid document they having failed to establish the same at the time of trial ?”
7. The facts in the case are simple and straightforward.
8. The appellant had filed O.S. No. 276 of 1998 before the District Munsif Court, Cuddallore seeking specific performance of an agreement of sale dated 07.03.1996 entered into by the 1st and 2nd defendants and by the father of the 3rd and 4th defendants, who were minors. The suit property was 01.00 acre of land. He claimed that the sale consideration was Rs.15,000/- and that he had paid an advance of Rs.1,000/-.
9. In the written statement, the 1st to 4th defendants denied the signatures in the said agreement, which was marked as Ex. A1. They, https://www.mhc.tn.gov.in/judis 5 marked Ex. B1, which was an earlier agreement with the appellant for the very same land, for a total consideration of Rs.1,50,000/-. They stated that they had received an advance of Rs.1,40,000/-. Since the appellant had not come forward to perform his part of the agreement further, they returned back the Rs.1,40,000/- together with an additional amount of Rs.60,000/- and obtained back the said agreement of sale, with signatures portion torn off.
10. This particular fact had been suppressed by the appellant for reasons unexplained.
11. It must also be pointed out that during his oral evidence, the plaintiff had stated that P.W.2 and P.W.3, the two attestors to Ex. A1 were not his relatives. However, during their evidence, P.W.2 admitted that he was the son of the own sister of the plaintiff and P.W.3 admitted that his wife was the younger sister of the wife of the plaintiff. Thus, the plaintiff had not only come to court suppressing material facts, but during his oral evidence also deposed falsely.
https://www.mhc.tn.gov.in/judis 6
12. The signatures found in the agreement, Ex. A1 were found to have been forged. This forgery is evident to the naked eye. Both the learned District Munsif and the Additional District Judge found evident differences in the signatures of the 1st and 2nd defendants and that of their father.
13. I had also examined the signatures in Ex. A1 and the available signatures in Ex. B1. The differences are obvious.
14. In Joseph v. Batho Mary, (1999) 5 SCC 711, in similar circumstances when both the courts below had come to a concurrent finding that the assertion that the signature was forged and when the High Court had interfered with such finding holding that the assistance of an expert should have been sought, the Hon’ble Supreme Court observed as follows :
“5. ….it was a contention of the appellants that the signature of the landowner was forged on the joint application filed under https://www.mhc.tn.gov.in/judis 7 Section 72-MM. That aspect was disputed by the contesting respondent, but the son of the purported signatory, when examined as PW 2 in the suit, said that the signature attributed to his late father in the joint application is a forged one. The fact-finding courts concurrently found that the said signature was forged. Unfortunately, learned Single Judge upset the said finding on a fragile reasoning that the aforesaid signature should have been forwarded to a handwriting expert to prove that it was forged.
15. Holding that the High Court should not have interfered with the concurrent finding, the judgment was reversed.
16. In Ajit Savant Majagvai v. State of Karnataka, (1997) 7 SCC 110 : 1997 SCC (Cri) 992 at page 122, it was held as follows by the Hon’ble Supreme Court :
“38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in https://www.mhc.tn.gov.in/judis 8 the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See :
State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14] .]”
17. A learned Single Judge of this Court in Periasamy Padayachi vs Andal, reported in (2002) 4 LW 615, held as follows on similar facts :
“8. When the over-writing of the signature of the respondent/defendant, on the face of it, is explicit, 1 do not see any necessity to send the promissory note for expert's opinion. That apart, if the appellant, who is the plaintiff himself, wants to substantiate his claim that the signature of the respondent/defendant-executor is not forged, he should have taken steps to discharge his burden.
Having failed to do so, it is not open to the appellant/plaintiff to say that the learned Additional District Judge, Cuddalore, has erred in giving a finding of material alteration of the https://www.mhc.tn.gov.in/judis 9 promissory note, without referring the same for expert's opinion.
18. In Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un- Niswan, (1999) 6 SCC 343, it was held as follows by the Hon’ble Supreme Court :
“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.
“13. In Ramanuja Naidu v. V. Kanniah Naidu [(1996) 3 SCC 392] this Court held:
“It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be https://www.mhc.tn.gov.in/judis 10 interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.” “14. In Navaneethammal v. Arjuna Chetty [(1996) 6 SCC 166] this Court held:
“Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.” “15. And again in Secy., Taliparamba Education Society v.
https://www.mhc.tn.gov.in/judis 11 Moothedath Mallisseri Illath M.N. [(1997) 4 SCC 484] this Court held:
“The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible.””
19. In State of Rajasthan v. Shiv Dayal, (2019) 8 SCC 637, the Hon’ble Supreme Court held as follows :
“16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar https://www.mhc.tn.gov.in/judis 12 [Rajeshwar Vishwanath Mamidwar v. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117] para 43.)”
20. The two substantial questions of law revolve around the finding that the signatures of the 1st and 2nd defendants/respondents and their father in Ex. A1 are forged. When such forgery is evident to the naked eye and when coupled with the fact that the appellant, as plaintiff had not disclosed the earlier agreement and had not taken the step to send the documents for verification by an expert as provided under section 45 of the Evidence Act, 1872, the only conclusion that can be reached is that the concurrent findings have to be upheld by this Court.
21. Section 101 of the Evidence Act, 1872 is clear that the burden is on the plaintiff to prove his case.
Section 101. Burden of proof.
“Whoever desires any Court to give judgment as to any legal right or liability https://www.mhc.tn.gov.in/judis 13 dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
Illustration :
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.
(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts.”
22. In the instant case, the appellant had suppressed the earlier agreement. He had produced Ex. A1, in which the signatures of the 1st and 2nd respondents and their father have been held to have been forged and are evidently forged. He seeks specific performance on the basis of Ex. A1. Even in the written statement the respondents had stated that their signatures have been forged in Ex.A1. A reply statement had not been filed. I hold that the burden was on the appellant/plaintiff to have https://www.mhc.tn.gov.in/judis 14 taken recourse to have tested the signatures by an expert. Having failed to do so, he has to suffer a decree.
23. With respect to the first substantial question of law, I therefore hold that both the Courts below did actually consider Ex. A1 in its proper perspective and with respect to the second substantial question of law, I hold that the burden was on the appellant to have forwarded Ex. A1 for examination by an expert with respect to the signatures found in it.
24. In view of the said reasoning, I have no hesitation in holding that the second appeal has to suffer an order of dismissal.
25. Accordingly, the Second Appeal is dismissed with costs. The Judgments and Decrees dated 23.09.2002 in A.S.No. 76 of 2002 on the file of Additional District Court (Fast Track Court II), Cuddalore and dated 15.03.2001 in O.S.No. 276 of 1998 on the file of Principal District Munsif Court, Cuddalore, are both confirmed.
17.08.2022 Index :Yes/No Internet:Yes/No vsg https://www.mhc.tn.gov.in/judis 15 To
1. Additional District Court, (Fast Track Court II), Cuddalore.
2. Principal District Munsif, Cuddalore. https://www.mhc.tn.gov.in/judis 16 C.V.KARTHIKEYAN, J.
vsg Pre-Delivery Judgment made in S.A.No. 185 of 2004 17.08.2022 https://www.mhc.tn.gov.in/judis