K. Dhanapal vs K.P. Damodaran and others

M. Venugopal, J.—The revision petitioner/petitioner/plaintiff has filed the instant civil revision petition as against the order dated 21.10.2009 in I.A. No. 14945 of 2009 in O.S. No. 2573 of 2008 passed by the Learned VIII Assistant Judge, City Civil Court, Madras. The trial Court while passing orders in I.A. No. 14945 of 2009, dated 21.10.2009. in paragraph 8 has inter alia is stated that mere denial of signature during cross-examination by D. W. 1 will not amount to prove the case and further, D. W. 1 has denied her signature in page No. 4 and at the same time, she admits the signature in Exhibit A-3-Power of Attorney and the Court can compare the signature in Exhibit A-2, A-3 with Vakalath, Counter and other documents etc., and resultantly dismissed the Application.

According to the learned counsel for the revision petitioner/plaintiff, the trial Court committed error in dismissing the petition in I.A. No. 14945 of 2009 to send the document for examination of an Expert.

It is the contention of the learned counsel for the petitioner/plaintiff that as soon as the denial has been recorded, the revision petitioner has taken positive steps to have the documents examined through an Expert, but in law, the onus to prove the document cannot be scuttled and it is the duty of the Court to ensure that all evidence are made available during the course of trial so as to enable the Court of law to evaluate the evidence at a subsequent point of time.

In short, it is the submission of the learned counsel for the petitioner/plaintiff that the trial Court has not borne in mind the ingredients of Section 45 of Indian Evidence Act relating to the opinions of Experts.

It is a well accepted principle of law that an Expert can speak to the experiments made by him/her behind the back of the other party. When an expert is required to furnish his opinion on facts admitted or proved at the trial, but not observed by him, it is the opinion of a "pure expert". An expert evidence is quite admissible in law when the Court has to base opinion upon a point of science or art or as to identify the handwriting or finger impression of an individual. The Expert Opinion cannot be received in evidence, where the subject matter of inquiry is such that it may be presumed to lie within the common education, moving in the ordinary walks of life. It is true that a Court of law has to he quite cautious when witnesses particularly, Expert witnesses is present in Court and when a particular individual fails to put relevant questions, the answers to which, will help the Court to come to a correct conclusion in regard to the matters relevant to the enquiry, then the role of the Court is more high on the pedestal than that of the particulars are elicited.

A Hand Writing Expert by being approached by the plaintiff on defendant to render his opinion on the authenticity of the document or veracity of the same has to project his opinion as could be furnished by him.

Section 73 of the Indian Evidence Act, 1872 is conspicuously silent as to who was compared the specimen hand writing with that of the disputed one. To put it differently, whether the comparison is to be made by the Court or whether it should be done by an Expert or any other person. About the power of Court to compare the signature, there is no dispute, although the same is hazardous.

It may not be safe for a Court of Law to render a finding about an individual''s writing of certain document merely on the basis of comparison. However, the Court can itself compare the writings in order to appreciate properly the other evidence produced before it as per Honourable Supreme Court decision in State of Gujarat v. Vinaya Chandra AIR 1967 SC 778 : (1967) 1 MLJ (Crl) 442.

As a matter of fact, Section 73 of the Indian Evidence Act, 1872, makes no distinction between the Civil or Criminal Court in the considered opinion of this Court. Section 73 of the Indian Evidence Act is to be read along with Section 45 of the Indian Evidence Act. It is to be noted that a comparison of signature by a Court of law is not and should not be dependant on the examination of a hand writing Expert, as opined by this Court.

Nowhere the Indian Evidence Act enjoins that the evidence of an Expert should be corroborated, but in practice, the Courts do not base their decisions on Expert evidence only. It is the matter of common knowledge that the Courts always seek for external and internal evidence in corroboration of an Expert evidence.

It is to be remembered that an Expert gives evidence and he does not decide an issue. It is for the Judge to determine whether the witness has undergone a special study or experience as will render him expert in a certain subject.

In the instant case on hand, the revision petitioner/plaintiff in I.A. No. 14945 of 2009 has sought the relief of availing the assistance of the Department of Forensic Science, Government of Tamilnadu, Kanrtrajar Salai, Mylapore, Chennai 600 004 for examination of the signatures of the 1st respondent/1st defendant and D.W.1 in Exhibit A-3 with the disputed signatures of the 1st respondent/1st defendant and DW-1 as found in Exhibit A-2 and to submit a report thereon to the trial Court.

As pointed out earlier by this Court that inasmuch as the trial Court cannot take the role of an Expert and since the term "Expert" has a different connotation as per Section 45 of the Indian Evidence Act, this Court comes to an Inescapable conclusion that the trial Court committed an error in observing that it compare signature in Exhibit A-2, A-3 was Vakalath, counter and other documents e Indeed, the power of the Court to compare disputed signature with that of the admitted signatures through naked eyes is certainly a prudent one, but the same is Hazardous.

Therefore, this Court, without going into the merits of the matter, is inclined to low the civil revision petition by setting, aside the order passed by the trial Court in I. A. No. 14945 of 2009 in dismissing the said Application, to promote substantial cause of Justice.

In the result, the civil revision petition is allowed. No costs. The order passed by the trial Court in I.A. No. 14945 of 2009 in O.S No. 2573 of 2008 is set aside by this Court for the reasons mentioned in this revision petition supra. The I.A. No. 14945 of 2009 is restored to the file of the trial Court viz., the VIII Assistant Judge, City Civil Court, Chennai and the trial Court is directed to dispose of the I.A. No. 14945 of 2009 after providing due opportunities to the parties in the manner known to law It is open to the parties to raise all factual legal pleas including the legal position of Section 45-A of the Indian Evidence Act and the trig Court upon hearing the respective counsels the parties is directed to pass a reasoned and speaking order in the manner known to law within a period of three weeks from the date receipt of a copy of this order in view of fact that the suit O.S. No. 2573 of 2008 is in part Heard stage. Consequently, the connected M.P. No. 1 of 2009 is closed.