Madras High Court
Paneerselvam vs Thiyagarajan on 12 March, 2018
Author: V.M.Velumani
Bench: V.M.Velumani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.03.2018 CORAM: THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(PD)No.3967 of 2015 and M.P.No.1 of 2015 Paneerselvam .. Petitioner Vs. 1.Thiyagarajan 2.Jayaraman 3.J.Dhanalakshmi 4.V.Senthilkumar .. Respondents PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India to set aside the fair and decretal order dated 22.06.2015 made in I.A.No.84 of 2014 in O.S.No.4 of 2013 on the file of the Principal District Court, Thiruvarur. For Petitioner : M/s.M.E.V.Thulasi For R1 : M/s.S.Sounthar For R2 to R4 : No appearance O R D E R
This Civil Revision Petition is filed to set aside the fair and decretal order dated 22.06.2015 made in I.A.No.84 of 2014 in O.S.No.4 of 2013 on the file of the Principal District Court, Thiruvarur.
2.The petitioner is the first defendant, first respondent is the plaintiff and respondents 2 to 4 are the defendants 2 to 4 in O.S.No.4 of 2013 on the file of the Principal District Court, Thiruvarur. The first respondent filed the said suit for recovery of a sum of Rs.8,50,000/-. According to the first respondent, he appointed the petitioner as Power Agent and subsequently, he cancelled the said power. When the first respondent obtained Encumbrance Certificate, he came to know that petitioner sold the properties to respondents 2 to 4. The petitioner did not pay the sale consideration to the first respondent.
3.According to the petitioner, as per the power executed by the first respondent, he sold the property to the respondents 2 to 4 and paid the sale consideration to the first respondent and first respondent also confirmed the same by hand written letter dated 04.03.2010. The petitioner in the written statement has stated this fact. The first respondent did not file any reply, denying the same. During cross examination, the first respondent denied having executed hand written letter. In view of the same, the petitioner has filed the present I.A.No.84 of 2014 under Order XXVI Rule 10(A) and Section 151 of C.P.C for appointment of an Advocate Commissioner to verify the documents and send the same to hand writing expert for comparison and file a report to this Court.
4.The first respondent filed counter affidavit and denied that he executed hand written letter dated 04.03.2010 and also stated that signature in the hand written letter dated 04.03.2010 is not his signature. Unmarked document cannot be sent for comparison of the signature. Only contemporaneous document can be sent for comparison and prayed for dismissal of the application.
5.The learned Judge considering the averments in the affidavit and counter affidavit, dismissed the application holding that unmarked document cannot be sent for comparison and petitioner has not produced any contemporaneous document for comparison.
6.Against the said order of dismissal dated 22.06.2015 made in I.A.No.84 of 2014 in O.S.No.4 of 2013, the petitioner has come out with the present Civil Revision Petition.
7.According to the learned counsel for the petitioner, the signature in the letter dated 04.03.2010 and signature in vakalat and plaint can be sent for comparison as the vakalat and plaint are the contemporaneous document. The learned Judge is not correct in holding that petitioner has not mentioned the admitted signature in the documents, whereas the petitioner is seeking comparison of the signature of the first respondent in vakalat and plaint with that of the signature in the hand written letter. Even unmarked document can be sent for comparison with contemporaneous document and prayed for allowing the Civil Revision Petition.
8.Per contra, the learned counsel for the first respondent contended that signature in the vakalat and plaint cannot be sent for comparison as the said signatures are after dispute has arisen between the petitioner and first respondent. The learned counsel for the first respondent relied on the Division Bench judgment of this Court reported in 2006 (3) CTC 39 (Central Bank of India (A Nationalised Bank), rep. By its Manager, N.Gururajan, No.1, Alaiamman Kovil Street, Teynampet, Chennai 600 018 Vs. Anthony Hardware Mart, rep. By its Proprietor, K.Subbiah, No.113, Eldams Road, Teynampet, Chennai 600 018 and another):
9. At the outset, we want to point out that the Trial Court has committed an error in comparing the signatures in Ex.A-2 and Ex.A-5 with the admitted signature of the defendant in the Vakalath and written statement. In the judgment reported in 1999 (3) C.T.C. 156 ( Somasundaram Vs. Palani) this Court has held as follows:
Even though the Court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison.
It is settled law that the disputed signature can be compared with admitted signature, which were contemporaneous and not with the admitted signatures obtained subsequent to the date of the disputed signature. By lapse of time, there may be some difference in the signature of a person. Only based on that principle, the above said judgment has been rendered by the learned single Judge of this Court. Therefore, the Trial Court erred in comparing the signatures in Ex.A-2 and Ex.A-5 with the signatures found in the Vakalath and written statement of the defendant.
9.Heard the learned counsel for the petitioner as well as the first respondent and perused the materials available on record. Though notice has been served on the respondents 2 to 4 and subsequently, they entered appearance through counsel, today there is no representation for them either in person or through counsel.
10.From the materials available on record, it is seen that the petitioner is seeking to prove that the signature in the hand written letter dated 04.03.2010 is that of the first respondent. The petitioner has not produced any admitted signature of the first respondent relating to the said period. Further, the said hand written letter is yet to be marked. The petitioner is seeking comparison of the signature of the first respondent in vakalat and plaint with the disputed signature in letter dated 04.03.2010. In the judgment referred to above, relied on by the counsel for the first respondent, the Division Bench of this Court has held that the signature in vakalat, written statement, cannot be compared with the disputed signature since those documents came into existence only after dispute has arisen between the parties. Further, the Division Bench of this Court has held that only contemporaneous admitted signature can be compared with the disputed signature. It is pertinent to note that the hand written letter is yet to be admitted in evidence. Without the document being admitted in evidence, the same cannot be considered for deciding the issue between the parties. There is no illegaltiy or irregularity warranting interference by this Court with the order of the learned Judge dated 22.06.2015 made in I.A.No.84 of 2014 in O.S.No.4 of 2013.
11.In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed. The learned counsel for the petitioner submitted that the petitioner may be permitted to renew the present application as and when hand written letter is admitted and when the petitioner produces admitted contemporaneous signature of the first respondent. It is open to the petitioner to file any such application if he is entitled to and no permission or liberty is required from this Court.
12.03.2018 Index :: Yes/No gsa To The Principal District Judge, Thiruvarur.
V.M.VELUMANI,J.
gsa C.R.P.(PD)No.3967 of 2015 and M.P.No.1 of 2015 12.03.2018