Janab S. Sikandar vs Janab M. Asanar

The Honorable Mr. Justice G. Rajasuria

The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

Shorn and bereft of unnecessary details, the relevant facts absolutely necessary for the disposal of the Second Appeal would run thus:

The plaintiff filed the suit for recovery of a sum of Rs.1,30,166/-(Rupees One Lakh Thirty Thousand One Hundred and Sixty Six only) based on the suit promissory note dated 01.02.1998, said to have been executed by the defendant. The defendant resisted the suit to the effect that promissory note was a false and fabricated one and the defendant was not at all liable to pay any amount, much less the suit amount to the plaintiff.

During trial, the plaintiff examined himself as P.W.1 along with P.W.2 and P.W.3 and marked Exs.A.1 to A.4 on his side. The defendant examined himself as D.W.1 and no documentary evidence was adduced on his side.

Ultimately, the suit was decreed by the trial Court.

As against the judgment and the decree of the trial Court, the defendant preferred the appeal. Whereupon, after entertaining additional evidence, namely Exs.B.1 to B.12, at the instance of the defendant the first appellate Court upset the judgment and decree of the trial Court and ultimately dismissed the suit.

Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the plaintiff preferred this Second Appeal on various grounds.

My learned Predecessor framed the following substantial questions of law:

(i) Whether the judgment and decree of the Court below is perverse on account of its misconstruction of documents in Exs. A.1 and A.2 ?

(ii) Whether the finding of the Court below with regard to jurisdiction is erroneous inasmuch as there is no pleading much less an issue framed with regard to ward of jurisdiction?

(Extracted as such)

The gist and kernel of the arguments of the learned Counsel for the plaintiff would run thus:

The first appellate Court was not expected to go into the territorial jurisdiction, when it is the well settled proposition of law that for the first time, the territorial jurisdiction should not be raised before the first appellate Court; However, it wrongly considered the said issue and held as though the trial Court had no territorial jurisdiction to try the suit, even though such a plea was not taken before the trial Court. The appellate Court on its own accord, compared the disputed signature in the promissory note -Ex.A.2 with that of the admitted signature of the defendant in Ex.A.1, and held erroneously as though the signatures did not tally with each other. As such, according to the learned counsel for the plaintiff, such an approach is perverse.

In a bid to mince meat and in addition to torpedo and pulverize the contention on the side of the plaintiff, the learned counsel for the defendant would submit that the first appellate Court taking into account the pros and cons of the matter, appropriately upset the judgment and decree of the trial Court, which warrants no interference by this Court in Second appeal. No question of law, much less any substantial question of law is involved in this Second Appeal. The preponderance of probabilities would govern the adjudication in civil cases and accordingly, the first appellate court taking into account the probabilities that the defendant would not have executed the suit promissory note -Ex.A.2, dismissed the suit, which warrants no interference in Second Appeal.

The defendant filed the Written Statement challenging the impugned signature in the promissory note that it was not his signature. No doubt, the plaintiff would contend that the two witnesses, who attested the suit promissory note -Ex.A.2, in unison corroborated the testimony of P.W.1 and in such a case, the first appellate Court should not have upset the reasoned finding of the trial Court on mere conjectures and surmises.

I recollect and call up the maxim Non potest adduci exceptio ejusdem rei cujus petitur dissolutio. (An exception cannot be brought upon the same matter whose determination is at issue (in the action at hand.))

Since the defendant challenged his very purported signature in Ex.A.2 and the genuineness of Ex.A.2 itself, I do not think that by merely placing reliance upon the depositions of those two witnesses the disputed promissory note could be held to have been proved to be genuine.

Trite, the proposition of law is that the Court should not assume the role of a handwriting expert. There is absolutely no reason as to why steps have not been taken to get the disputed signature of the defendant compared with his admitted signature at the instance of the plaintiff. The first appellate Court has not rendered reasons in support of his finding on the signatures.

At this juncture, I would like to recollect and call-up the following decisions:

(i) Thiruvengada Pillai Vs. Navaneethammal and Another, ; certain excerpts from it would run thus:

While there is no doubt that court can compare the disputed handwriting / signature / finger impression with the admitted handwriting / signature / finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert''s opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.

The decision in Murari Lal and Lalit Popli should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.

...

The trial court had analyzed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case the plaintiff came to court alleging that the first defendant had executed an agreement of sale in his favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and the High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PWs 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate court, does not call for interference.

(ii) The decision of this Court reported in 2008 (3) CTC 470 Ganapathy Thevar v. Shanmuga Thevar; certain excerpts from it would run thus:

14......... The Court cannot assume the role of an expert in comparing the disputed handwriting with that of the admitted ones. No doubt, the Court as per Section 73 of the Evidence Act, in certain circumstances could exercise its power with caution. In such an event, it is the bounden duty of the Court to specify clearly as to what are the salient features based on which the finding is arrived at.

It is common knowledge that the science of analyzing the questioned documents contemplates certain principles and theories. Here, both the Courts below were not objective in analyzing the impugned handwriting.

No carte blanche is given to any Court to simply compare the disputed handwriting with that of the admitted handwritings and arrive at a subjective satisfaction about the similarities and dissimilarities. There should have been reasons set out for arriving at such conclusion, but here, both the Courts below have not resorted to such a procedure. The subjective satisfaction of both the Courts below cannot be taken in favour of the defendant.

Yet one other precedent is as under:

(iii) The State (Delhi Administration) Vs. Pali Ram, .

A plain reading of those precedents would highlight and spotlight the fact that the Court is not expected to assume the role of an expert and arrive at the conclusion in one way or other relating to the genuineness or otherwise of a document unless extraordinary circumstances warrant so, and furthermore, once the Court assumes the role of an expert necessarily, the various characteristics as found recognized in the science of handwriting analysis should be referred to. At least a famous treatise on handwriting analysis should be referred to and accordingly, there should be a detailed judgment. Mere subjective satisfaction would not be sufficient. No carte blanche is given to any Court to simply look at the disputed signature with some admitted signatures and give a finding that the Court is satisfied in one way or other.

Without adverting to those decisions, the first appellate Court, in my view, misdirected itself and held as though the impugned signature is not tallying with the signature of the defendant. As such on that score, interference with the judgment and the decree of the first appellate Court is very much warranted.

The first appellate Court threw to winds the well settled proposition of law that the objections as to the territorial jurisdiction should be raised at the earliest point of time and not belatedly. Here, the first appellate Court adverted to the territorial jurisdiction and held as though the trial Court has no territorial jurisdiction to deal with the matter.

Section 21 of the CPC is extracted hereunder for ready reference:

Objection to jurisdiction. -(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.

It is clear that objection as to the territorial jurisdiction, has not been raised in the written statement. In such a case, the first appellate Court was not justified in invoking the territorial jurisdiction issue and gives its verdict against the plaintiff. The first appellate Court being the last Court of fact was expected to adhere to each and every portion of the judgment of the trial Court and give its reasons for upsetting the judgment of the trial Court. Here, after entertaining the additional evidence concerning the alleged fact that the defendant was in the habit of signing only in English and not in Tamil, simply came to the conclusion that the impugned signature in Tamil in Ex.A.2 -Promissory Note could not be the signature of the defendant.

Hence, in these circumstances, I would like to set aside the judgment and decree of the first appellate Court and remit the matter back to the first appellate Court with the direction that the first appellate Court shall, at the cost of the plaintiff, appoint an Advocate Commissioner as under with the mission to carry out the following:

(a) To carry the relevant documents in connection with this case personally in a sealed cover;

(b) and produce the same before the Forensic Expert;

(c) leave it in his custody under his acknowledgment for as many days as the Forensic Expert may require;

(d) collect the record from the Forensic Expert on the day as may be fixed by him;

(e) bring it back and lodge it with the Court.

The Forensic Expert is directed to complete the examination of the records in any event, without 48 hours after the depositing of the same by the Advocate Commissioner with him.

The first Appellate Court, after obtaining the report of the Advocate Commissioner and the expert concerned and entertaining objections if any from both sides and on hearing both, a reasoned judgment shall be delivered. Endeavour shall be taken to see that the matter is disposed of within a period of two months from the date of receipt of a copy of this judgment. Both sides shall co-operate with the first appellate Court for speedy disposal of the matter. Both sides shall approach the first appellate Court on 08.11.2011.

In the result, the Second Appeal is allowed to the extent indicated above. No costs.