Madras High Court
Mars Raja vs Thenmozhi
Author: C.Saravanan
Bench: C.Saravanan
C.R.P.(MD)No.658 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
28.03.2023 06.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD)No.658 of 2023
and
C.M.P.(MD)No.3070 of 2023
Mars Raja, S/o.Ragunathan ... Petitioner
vs.
Thenmozhi, W/o.Nagesh @ Kanthavelu ... Respondent
Prayer :- Civil Revision Petition is filed under Article 227 of the Constitution
of India, against the docket order dated 22.07.2022, passed in I.A.No.61 of 2022 in
O.S.No.54 of 2014, on the file of the Additional District Court, Pudukkottai.
For Petitioners : Mr.R.Paranjothi
For Respondent : Mr.T.Lenin Kumar
ORDER
The petitioner is aggrieved by the impugned docket order dated 22.07.2022, passed by the learned Additional District Judge, Pudukkottai, allowing I.A.No.61 of 2022 in O.S.No.54 of 2014, filed under Order XXVI Rule 10 and 10-A of C.P.C. The operative portion of the impugned order reads as under:-
https://www.mhc.tn.gov.in/judis 1/10 C.R.P.(MD)No.658 of 2023 ''5. kDjhuH kw;Wk; vjpHkDjhuH jug;G thJiu Nfl;fg;gl;lJ. kD> vjpUiu kw;Wk; tof;fhtzq;fs; ghprPyid nra;ag;gl;ld. kDjhuH/gpujpthjp jug;gpy;> thjp jug;gpy; th.rh.M.1 Mf FwpaPL nra;ag;gl;Ls;s 30.06.2012k; Njjpapl;l fpiua xg;ge;jk; vd;w Mtzj;jpy; Nkw;gb Mtzj;ij vOjpf; nfhLj;Js;sjhff; fz;Ls;s 'Njd;nkhop” vd;w ifnahg;gq;fisAk; mjd; 3k; gf;fk; rhl;rpahf cs;s 'fe;jNtY” vd;W nra;ag;gl;Ls;s ifnahg;gj;ijAk; kDjhuH/gpujpthjp jug;gpy; Vw;fdNt I.v.ek;gH 85/2018 kDTld; jhf;fy; nra;Js;s Mtzq;fs; kw;Wk; thjpia FWf;F tprhuiz nra;j rkak; gpujpthjp jug;G rhd;whtzq;fshf Vw;fdNt FwpaPL nra;ag;gl;Ls;s gp1 kw;Wk; gp2 Mfpa Mtzq;fs; kw;Wk; jw;rkak; jhf;fy; nra;ag;gl;Ls;s jhthr; nrhj;J rk;ge;jg;gl;l mry; fpiuag; gj;jpuk; Mfpatw;wpy; cs;s gpujpthjp 'Njd;nkhop” kw;Wk; mtuJ fztH fe;jNtYtpd; xg;Gf; nfhs;sg;gl;l (Admitted Signatures) ifnahg;gq;fSld; xg;gpl;L th.rh.M.1y; cs;s Njd;nkhop vd;w ifnahg;gk; gpujpthjpapd; ifnahg;gkh? vd;gJ Fwpj;Jk; th.rh.M.1y; 3k; gf;fk; rhl;rpahf fe;jNtY vd;W nra;ag;gl;Ls;s ifnahg;gk; gpujpthjpapd; fztH fe;jNtYtpd; ifnahg;gkh? vd;gJ Fwpj;Jk; mwpf;if jhf;fy; nra;a VJthf xU ePjpkd;w MizaH %yk; ifnaOj;J epGeUf;F mDg;gp itf;f jf;f cj;juT toq;ff; Nfhhp ,k;kD jhf;fy; nra;ag;gl;Ls;sJ. vjpUiuapid ghprPyid nra;Ak; NghJ mjpy; ,e;j kDgpukhzg; gj;jphpf;ifapd; rq;fjpfis kWf;Fk;gbahd fUj;Jf;fs; vJTk; nrhy;yg;gltpy;iy. NkYk; gpujhd tof;fhdJ Vw;wij Mw;Wjy; ghpfhuj;jpw;fhf jhf;fyhfp cs;sJ. mjw;F kDjhuH/gpujpthjpahy; vjpHkDjhuH/thjpf;F vOjpf; nfhLf;fg;gl;ljhf thjp jug;gpy; $wg;gLk; fpiua xg;ge;jk; jhd; Kf;fpa MtzkhFk;. vdNt ,e;j gpujhd tof;ifg; nghWj;J ,Wjp KbT va;Jtjw;F Nkw;gb Mtzj;jpd; cz;ik jd;ikia mwpa Ntz;baJ mtrpakhFk;. ,e;j kDit mDkjpg;gjhy; vt;tpjj;jpy; https://www.mhc.tn.gov.in/judis 2/10 C.R.P.(MD)No.658 of 2023 ghjpg;G Vw;gLk; vd;W Nghjpa rhl;rpa rhd;whtzq;fs; %ykhf vjpHkDjhuH/thjp jug;gpy; ep&gpf;fg;gltpy;iy. kDjhuH Vw;fdNt I.v.85/2018 jhf;fy; nra;J jpUk;gg; ngwg;gl;bUg;gpDk;> me;j kD ,U jug;Gk; Nfl;L Kbf;fg;gltpy;iy vd;gjhYk; jw;nghOJ $Ljy; Mtzq;fs; jhf;fy; nra;jpUg;gjhYk; ePjpapd; nghUl;Lk;> fpiua xg;ge;jk; th.rh.M.1d; cz;ikj; jd;ikia mwpa ,e;j kDit mDkjpf;fyhk; vd;W ,e;ePjpkd;wk; KbT nra;J ,e;j gpur;rpidf;F jPHT fhz;fpwJ.
6. Kbthf ,k;kD mDkjpf;fg;gLfpwJ. tof;fwpQH jpUkjp.vk;.Nutjp mtHfs; ePjpkd;w Mizauhf epakpf;fg;gLfpwhH.
ePjpkd;w MizaH ,e;j kDtpy; fz;l fhuzq;fSf;fhf 30.06.2012k; Njjpapl;l th.rh.M.1 fpiua xg;ge;jj;jpy; cs;s 'Njd;nkhop” vd;w ifnahg;gq;fisAk;> mjd; 3k; gf;fk; rhl;rpahf cs;s 'fe;jNtY” vd;w ifnahg;gj;ijAk;> kDjhuH/gpujpthjp jug;gpy; I.v.85/2018 kDTld; jhf;fy; nra;Js;s mry; Mtzq;fs;> gpujpthjp jug;G Mtzq;fshd gp.th.M.1 kw;Wk; gp.th.rh.M.2 Mfpatw;wpd; mry; Mtzq;fs; jw;rkak; ,e;j kDTld; jhf;fy; nra;ag;gl;Ls;s kw;Wk; jhthr; nrhj;J rk;ge;jg;gl;l mry; fpiuag; gj;jpuk; Mfpatw;wpy; cs;s gpujpthjp “Njd;nkhop” kw;Wk; mtuJ fztH fe;jNtYtpd; xg;Gf; nfhs;sg;gl;l (Admitted Signatures) ifnahg;gq;fSld; xg;gpl;L th.rh.M.1y; cs;s Njd;nkhop vd;w ifnahg;gk; gpujpthjpapd; ifnahg;gkh? vd;gJ Fwpj;Jk; th.rh.M.1y; 3k; gf;fk; rhl;rpahf 'fe;jNtY” vd;W nra;ag;gl;Ls;s ifnahg;gk; gpujpthjpapd; fztH fe;jNtYtpd; ifnahg;gkh? vd;gJ Fwpj;Jk; mwpf;if jhf;fy; nra;tjw;fhf Nkw;nrhd;d Mtzq;fis kJiu jla mwptpay;
Ma;tfj;jpy; rkHg;gpj;J mwpf;ifia 22.08.2022f;Fs; ,e;ePjpkd;wj;jpy; rkHg;gpf;f Ntz;Lnkd;W cj;jputplg;gLfpwJ. ePjpkd;w MizaUf;fhd Cjpak; &.10>000/- vd epHzak; nra;ag;gLfpwJ. Nkw;gb njhifia kDjhuH ePjpkd;w MizaUf;F toq;f Ntz;Lnkd;W https://www.mhc.tn.gov.in/judis 3/10 C.R.P.(MD)No.658 of 2023 cj;jputplg;gLfpwJ. miof;f ehs;.23.08.2022.''
2. The petitioner is the plaintiff in O.S.No.54 of 2014. The suit has been filed by the petitioner for specific performance of an application purportedly in an agreement signed by the respondent/defendant on 30.06.2012. The respondent/defendant has denied the execution of the aforesaid agreement, dated 30.06.2012.
3. It is the specific case of the petitioner/plaintiff that a similar application was earlier filed by the respondent/defendant in I.A.No.85 of 2018. It was however withdrawn for the reasons best known to the respondent/defendant. It is submitted that after the commencement of trial, at the stage of examination of the defendant's witness D.W.1. The respondent/defendant though filed the present I.A.No.61 of 2022 to appoint an Advocate Commissioner to send signature of the respondent/defendant and her husband, who is the first witness in the sale agreement dated 30.06.2012 for an opinion of a handwriting expert for comparison. It is submitted that the Trial Court commited an error in allowing the application filed by the respondent/defendant.
4. Per contra, the learned counsel for the respondent/defendant on caveat submitted that a specific stand disputing the signature in the sale agreement dated https://www.mhc.tn.gov.in/judis 4/10 C.R.P.(MD)No.658 of 2023 30.06.2012 was made in the Written Statement. It was, therefore, incumbent on the part of the petitioner/plaintiff to have filed an application for appointing an Advocate Commissioner for comparison of signature from a handwriting expert earlier. It is submitted that in the collateral criminal proceeding filed by the Inspector of Police is pending before the Judicial Magistrate-I, Pudukottai, in C.C.No.174 of 2019 against the petitioner/plaintiff and another accused on a complaint by the respondent/defendant, a statement under Section 161(3) of Cr.P.C. of Kumar, Assistant Director and Document Expert, Forensic Department, Madurai, was recorded, wherein it was confirmed that the signature in the aforesaid agreeement dated 30.06.2012, varied and therefore, on an earlier occasion I.A.No.85 of 2018 which was filed was withdrawn. It is submitted that the challenge to the proceedings in C.C.No.174 of 2019 on the file of Judicial Magistrate No.I, Pudukottai, by one Senthilkumar/A2 has also been dismissed on 16.02.2023, in Crl.O.P.(MD)No.16970 of 2019.
5. The learned counsel for the respondent/defendant placed reliance on the guidelines of the Division Bench of this court in the case of P.Sood and company Vs.Peerchand Misrimalji Bhansali reported in 2005 (3) CTC 12, wherein, following guidelines have been passed pursuant to which, certain guidelines were given by this Court in the case of N.Chinnasamy Vs P.S.Swaminathan reported in 2006 (4) CTC 850, which reads as follows:
https://www.mhc.tn.gov.in/judis 5/10 C.R.P.(MD)No.658 of 2023 ''32. From the above judgments, the following principles have emerged:-
(1) Sec.73 of the Indian Evidence Act authorises the court to compare the disputed signature with the admitted signature in order to come to its own conclusion.
(2) It is always safe for the court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons.
(3) The practice of sending original documents in the custody of the courts to the handwriting experts is a highly objectionable one and a very very bad procedure.
(4) The proper procedure would be to permit the handwriting expert to inspect the document in the court premises itself in the presence of some responsible officers of the court.
(5) If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the court.
(6) When examination of the disputed documents within the court's premises, is not possible due to genuine difficulties expressed by the expert, the court has to find out the alternative way of achieving the object for the purpose of doing justice.
(7) In such circumstances as mentioned above, the application has to be treated as an application for an appointment of the commissioner in whose presence the examination of the disputed document has to be conducted by the expert.
(8) When the investigation cannot be conveniently conducted within the premises of the court and the same has to be carried out in the laboratory of the Forensic Department of the Government of Tamil Nadu, it is necessary to appoint a commissioner to conduct the investigation of the document in his presence. (9) Filing application for examination of documents by handwriting expert at a late stage thereby protracting and holding up the proceedings is highly objectionable.
(10) Merely because of the reasons that the trial court has by itself compared the admitted signature and the disputed signature invoking Sec.73 of the Indian Evidence Act there is no bar or ban for the first appellate court for sending the documents to get the expert opinion.
https://www.mhc.tn.gov.in/judis 6/10 C.R.P.(MD)No.658 of 2023 (11) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document.
(12)When the defendant denies the signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert.''
6. The learned counsel for the respondent further submits that when the Court comes to a conclusion that power under Order XXVI Rule 10 A of C.P.C. should be invoked, the civil Court can invoke the power even without the application in the interest of justice in order to settle the dispute between the parties as held by this Court in the case of S.Chinnathai Vs K.C.Chinnadurai reported in (2010) 3 MLJ 65.
7. I have heard the learned counsel for the petitioner and the learned counsel for the respondent and also perused the impugned order dated 22.07.2022, passed by the learned Additional District Judge, Pudukkottai.
8. In my view, the petitioner being the plaintiff in a suit for specific performance ought to have filed an application for appointment of an Advocate Commissioner under Order XXVI Rule 10 and 10-A of C.P.C. for sending the sale agreement, dated 30.06.2012, for comparison, particularly, when the respondent/defendant has denied the signature.
https://www.mhc.tn.gov.in/judis 7/10 C.R.P.(MD)No.658 of 2023
9. In fact, the records indicate that the collateral proceedings initiated against the petitioner and another person was taken on file by the learned Judicial Magistrate No.I, Pudukkottai, in C.C.No.174 of 2019. In the said proceedings, it stands prima facie confirmed that the signatures in the above said agreement were in variance with the admitted signature.
10. Statement recorded under Section 161 (3) of Cr.P.C. indicates that the signatures were in variance. A charge sheet has also been already filed against the petitioner and another person. The question, therefore, remains as to whether the petitioner can object to send the documents for an opinion of an Expert under Order XXVI Rule 10 and 10-A of C.P.C., particularly, when statement under Section 161 of Cr.P.C., has prima facie indicate that the signatures were in variance with the admitted signature before the learned Judicial Magistrate No.I, Pudukkottai, in C.C.No.174 of 2019.
11. Though respondent/defendant has an option to call for the records in C.C.No.174 of 2019, containing the statements recorded and materials available, to prove that the signature in the above said document may have been forged provided under Order XVI Rule 6 of C.P.C., the Court can nevertheless exercise discretion in favour of the respondent/defendant to send the document for examination by an expert under Order XXVI Rule 10 and 10-A of C.P.C.
https://www.mhc.tn.gov.in/judis 8/10 C.R.P.(MD)No.658 of 2023
12. I do not find any material to interfere with the impugned order dated 22.07.2022, passed by the learned Additional District Judge, Pudukkottai, allowing I.A.No.61 of 2022 in O.S.No.54 of 2014. The petitioner cannot be said to be an aggrieved person by the impugned order.
13. For the above said reasons, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
NCC : Yes / No
Index : Yes / No 06.04.2023
Internet : Yes / No
smn2
To
The Additional District Judge,
Pudukkottai.
https://www.mhc.tn.gov.in/judis
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C.R.P.(MD)No.658 of 2023
C.SARAVANAN, J.
smn2
PRE-DELIVERY ORDER MADE IN
C.R.P.(MD)No.658 of 2023
DATED : 06.04.2023
https://www.mhc.tn.gov.in/judis
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