Madras High Court
H. Amalraj vs Regina on 14 September, 1998
Equivalent citations: 1998(2)CTC502
ORDER
1. The revision petitioner is the defendant in the suit filed by the respondent/plaintiff in O.S.No.973 of 1995 for a money decree on the basis of pro-note dated 29.1.1994, said to have been executed by the revision petitioner/defendant.
2. Of course, the suit was resisted by the revision petitioner/defendant that he had never executed any pro-note, much less, dated 29.1.1994. Under such circumstances, the revision petitioner took an application in I.A.No.787 of 1994, seeking permission of the court below, namely, the learned Subordinate Judge, Tiruchirapalli, to send the suit pro-note dated 29.1.1994 for comparison by handwriting expert and for his report.
3. However, the same was objected by the respondent/plaintiff on the ground that the revision petitioner/defendant is only trying to protract the proceedings, and further contended that, in the events of grant of such permission by the court below, the document in question should be examined by the handwriting expert, only in the court.
4. The learned Subordinate Judge, Tiruchirapalli, by order dated 16.2.1998 in I.A.No.787 of 1997 in O.S.No.973 of 1995, rejected the permission totally on the ground of laches. Hence, the above revision.
5. Mr. R. Bharanidharan, learned counsel for the revision petitioner, contends that the question of laches does not arise in the instant case, as, even at the time of filing the written statement, the revision petitioner/defendant came with a specific case that he had never executed the suit pro-note dated 29.1.1994, and therefore, in order to substantiate his plea raised in the written statement, he had taken the present application, namely, I.A.No.784 of 1997, as mentioned above.
6. Mr. R. Bharanidharan, learned counsel for the revision petitioner, further pointedout that the court below erred in overlooking the alternative offer made by the revision petitioner/defendant himself.
7. Per contra, Mr. J. Radhakrishnan, learned counsel for the respondent/plaintiff, expressed his apprehension that the revision petitioner is trying to drag the proceedings eventhough the trial had already been commenced.
8. That apart, Mr. J. Radhakrishnan, learned counsel for the respondent/plaintiff, placing reliance on the decision in T.A. Narasimhan v. Narayana Chettiar, 1968 (II) M.L.J. 48 and Balarama Ready, N. v. Sarathy Enterprises etc. and 5 others, 1994 (2) L.W. 287, contends that the request for examination of documents by handwriting expert should not be encouraged when such a request is made at a later stage, protracting and holding up the proceedings, and further contends that, in any event, the documents should not be permitted to go out of the court premises.
9. I have given a careful consideration to the submission of both sides.
10. In T.A. Narasimhan v. Narayana Chettiar, 1968 (II) M.L.J. 48, this court, while dealing with the powers of the court, referring the documents to the handwriting expert, has held as follows;
" The court below was clearly in error in acceding to this extraordinary request of the plaintiff. When the document is sent to the expert it is expected that he will submit the report and he will also be examined either on commission or in open court at the instance of the party concerned. It must not be overlooked that the handwriting expert is after all a witness of a particular party, and the expert could occupy no other role except that of a witness on the side of the defendant in this case. In these circumstances it is impossible to justify the order of the lower court compelling the defendant to choose a witness according to the dictation of the plaintiff.
It frequently happens that such applications for examination of the documents by handwriting experts are made at a late stage protracting and holding up the proceedings. In the instant case the court below failed to appreciate that on old suit of 1962 is being protracted by such application. When the disputed documents were sent to the handwriting expert for comparison on the earlier occasion one would expect the defendant to send as many admitted signatures as he may desire, so that the examination and scrutiny of the documents would be finished once arid for all. Encouraging such repeated applications would only protract and delay the trial of the suit and should be discountenanced. When the matter goes back to the Subordinate Judge he must consider whether in his discretion this indulgence should be given to the defendant at this belated stage.
Repeated instance have come to the notice of this court when applications are lightly made for sending original documents on which suits are filed, like promissory notes and mortgage bonds, to the handwriting expert, the court itself losing the custody of the documents. Receipts containing signatures, the genuineness of which are in disputes and similarly sent to handwriting experts. I am clearly of the opinion that this is a highly objectable and a very had procedure. Under no circumstances should a court permit or allow the documents to go out of its custody, as such evil practice is attendant with various risks which are too obvious to be maintained. In the case of enquiries by Commissioners or proceedings by Receivers, who are officers of court, they are permitted to have access to documents, as they are under the direct control, supervision and jurisdiction of the courts which appoint them, and there is thus ample safeguard when original documents are taken by the Commissioners or the Receivers. In my view the proper procedure in such cases would be only to permit the handwriting expert to inspect the document in the court premises in the presence of some responsible officer of the court, and also if necessary permit the expert to have photographic copies of documents in the presence of the responsible officer of the court. Any lapse in taking the necessary safeguards in this direction may result in miscarriage of justice, besides creating complications.'
11. Confirming the view expressed by the learned single judge, in T.A.Narasimhan v. Narayana Chettiar, 1968 (II) M.L.J. 48, a Division Bench of this court, in Balarama Reddy, N. v. Sarathy Enterprises, Etc. and 5 others, 1994 (2) L.W. 287, has held as follows;
"There was no explanation as to why the appellant did not seek to have the documents examined by an expert when the suit was pending in the trial court nor was there any explanation for not filing the application for nearly eleven years, after filing of the present appeal. Apart from that, the prayer in the petition was not sustainable, as it has been consistently held by this Court, that no document can be sent out of court to be examined by any expert."
12. In view of the above well-settled principles on the issue laid down by this Court, I am of the considered opinion that the Court below erred in refusing to permit the revision petitioner to refer the suit promissory note dated 29.1.1994 totally, and overlooking the offer of the revision petitioner/defendant to the effect that the suit promissory note may be referred for the scrutiny of the handwriting expert, in the presence of some responsible officer of the Court, as held in the decisions referred to above, namely, T.A. Narasimhan v. Narayana Chettiar, 1968 (II) M.L.J. 48 and Balarama Reddy, N. v. Sarathy Enterprises etc. and 5 others, 1994 (2) L.W. 287.
13. Therefore, in the interest of justice, the order of the learned Subordinate Judge, Tiruchirapalli dated 16.2.1998 in I.A.No.787 of 1997 in O.S.No.973 of 1995, is set aside and the learned Subordinate Judge, Tiruchirapalli, is directed to permit the revision petitioner to examine the suit promissory note for comparing the same by handwriting expert at his cost, of course in the presence of a responsible officer of the Court, in the Court itself, as laid down in T.A. Narasimhan v. Narayana Chettiar, 1968 (II) M.L.J. 48 and Balarama Reddy, N. v. V. Sarathy Enterprises etc. and 5 others, 1994 (2) L.W. 287, and submit a report thereon, within three months from the date of receipt of this order. I further direct the learned Subordinate Judge, Tiruchirapalli, to conduct the trial and pass final decree and judgment in the suit within a period of three months from the date of receipt of the report of the handwriting expert.
The revision is ordered accordingly. However, there will be no order as to costs.