Muniappa Gounder (died) and Others vs Ganeshan and Smt. Santhosham

S. Nagamuthu, J.—Plaintiffs in O.S. No. 115 of 2003, on the file of the learned II Additional District Munsif, Dindigul, are the petitioners

herein and the defendants 1 and 3 in the said suit are the respondents. The petitioners in this revision challenge the order dated 05.08.2005 made

in I.A. No. 247 of 2005.

The petitioners have filed the above suit for declaration of title and for permanent injunction to restrain the defendants from in any way interfering

with their alleged peaceful possession and enjoyment of the suit property and also for cancellation of two registered sale deeds (Document No.

1656/1990 & Document No. 3165/1998). The first defendant has filed a written statement wherein, he has stated that on 06.04.1990, all the three

plaintiffs have executed the above referred two sale deeds in favour of the first defendant and the first defendant in turn sold away the same to the

third defendant. Thus, according to the case of the defendants, the third defendant is the absolute owner of the suit property, by virtue of the above

sale deeds.

In the plaint itself it has been clearly stated by the plaintiffs that no such deed of General Power of Attorney was executed by the plaintiffs in

favour of one Chandran at any point of time. But, in the written statement, it is stated that the said deed of General Power of Attorney dated

06.04.1990 was executed by the plaintiffs. In order to prove that the said document is a forged one, the plaintiffs have filed I.A. No. 247 of 2005,

before the lower Court requesting the Court to summon an Expert to compare the disputed signatures and the thumb impression found on the said

deeds and to offer his opinion. It was opposed by the defendants. Ultimately, the said I.A., was dismissed by the learned II Additional District

Munsif. Challenging the same, this revision has been filed.

The learned Counsel for the petitioners would submit that though it has been specifically stated in the plaint that no such deed of General Power

of Attorney was executed by the plaintiffs in favour of Chandran, the said document was not produced before the lower Court until examination of

D.W.2, who is the husband of the third defendant and therefore, the said document came to be filed only after the evidence of both sides was

over. The lower Court has dismissed the said I.A., on two grounds viz., the said I.A., was filed at a very belated stage and the petitioners/plaintiffs

have not mentioned the documents with which comparison is to be made. According to the learned Counsel these two reasons stated by the lower

Court are not sustainable under law. According to him, the delay occasioned because the documents were produced only through D.W.2 by the

defendants. In so far as the documents with which the disputed signatures and the thumb impression are to be compared to, the learned Counsel

would submit that Exs. A.4 and A.6 contain the admitted signatures of the second plaintiff with which comparison could be made. The learned

Counsel would further submit that so far as the third plaintiff is concerned, she is a graduate and she normally signs. The left thumb impression

found on the document is a forged one and so the same can be compared by getting thumb impression from the third plaintiff now.

Per contra, the learned Counsel for the respondents would submit that the said I.A., has been filed only with a view to drag on the proceedings

unnecessarily at a belated stage. According to him, there was no occasion for them to file the said documents in time even before the examination

of the plaintiffs'' side witnesses. He would further submit that the third plaintiff whose left thumb impression is in dispute has not been examined at

all and while that be so, it is not open for the plaintiffs now to file this revision. He would further submit that there is enormous delay in filing the said

I.A., which disentitles the plaintiffs for any relief as prayed for by them.

I have considered the rival contentions.

Admittedly, there is a dispute regarding the geniuses of the documents and therefore, the Court is required to give finding whether the document

is genuine or forged. To do the said exercise, it is always desirable to have the assistance of an Expert. In this case, the main objection raised by

the respondents is that there is a delay in filing the said I.A. If the delay has been occasioned solely because of the petitioners, it may be considered

in favour of the respondents. But, here, the respondents are also equally responsible for the delay. Though the disputed document was all along in

the custody of the respondents, the same has not been produced along with the written statement. Further, when the second plaintiff was examined

on the side of the plaintiffs, the disputed document was not even shown to the said witness to offer her opinion either to dispute the signature found

thereon or to admit the same. Even now, the learned Counsel for the respondents is not able to explain to this Court as to why the said exercise

was not done. Curiously, the said document was produced before the lower Court only through the husband of the third defendant viz., D.W.2.

D.W.2 is not a party to the suit and the said document was not proved through the parties to the document. It is also not known as to why it was

not proved through a party to the document. The said doubt is not cleared by the learned Counsel for the respondents even now. Thus, in my

considered view, the delay occasioned not only because of the plaintiffs but also because of the defendants. Therefore, on the ground of delay, I

am not in a position to reject the claim of the petitioners made in I.A. No. 247 of 2005.

The learned Counsel for the respondents would further submit that for the purpose of comparison of the disputed documents, the petitioners

have not specified, the documents containing the admitted signatures and the left thumb impression and therefore, the lower Court was right in

rejecting the plea of the petitioners.

As pointed out by the learned Counsel for the petitioners, Ex. A.4 is the sale deed of the year 1990, in which Ex. A.5 is the admitted signature

of the second plaintiff. Like wise, Ex. A.7 is the Income tax pan card containing the admitted signature of the second plaintiff which is also of the

year 1994. So, according to the learned Counsel for the petitioners, these two documents may be used for the purpose of comparison of the

disputed signatures of the second plaintiff. But, the learned Counsel for the respondents would submit that these two documents are not

contemporaneous documents. He would submit that the disputed document is dated 06.04.1990 and since Ex. A.4 is of the year 1994 and Ex.

A.6 is of the year 1997, these two documents cannot be called to be contemporaneous. However, I am not able to countenance the said

arguments of the learned Counsel for the respondents. Contemporaneous does not mean that it should be of the same calendar year. To make it

contemporaneous, the time gap between the documents should be reasonable. Here, the time gap between the disputed document and Exs. A.4

and A.6 is not so unreasonable so as to call the documents as non-contemporaneous. In my view, these two documents viz., Exs. A.4 and A.6 fall

within the four corners of contemporaneous records. In my considered view, within the span of four years, I do not think that there would occur

much difference in the signature of a party in natural course. Therefore, I am of the considered view, that these documents Exs. A.4 and A.6

containing the signatures of the second plaintiff could be very well used for the purpose of comparison.

So far as the left thumb impression of the third plaintiff is concerned, it is the case of the respondents that the said left thumb impression was

made by her. But, the learned Counsel for the petitioners would submit that the third plaintiff is a degree holder and she was never in the habit of

affixing her thumb impression in any documents. Going by common events, I am also of the view that a graduate lady would not go to affix her

thumb impression without signing unless there are extraordinary circumstances for doing so. The learned Counsel for the respondents is not in a

position to explain to this Court under which the graduate lady, the third plaintiff, had to affix her left thumb impression instead of signing the

document. Whatever be the case, since the said left thumb impression found on the disputed document is in dispute, the same has to be necessarily

compared by an Expert. There cannot be any difficulty for the Court to get the thumb impression of the third plaintiff for the purpose of

comparison. The lower Court can very well direct the Expert to get the thumb impression of the third plaintiff even in the presence of the Chief

Ministerial Officer of the Court for the purpose of comparison. Here, in the case of thumb impression, one cannot say that due to lapse of time the

thumb impression also differs. Therefore, by getting the thumb impression of the third plaintiff how the comparison could effectively be made to

ascertain whether the disputed thumb impression was really affixed by the third plaintiff or not.

At this juncture, I have to point out that the small hyper technical procedural lapses cannot come in the way of any Court in its exercise to do

justice to the parties. For all these reasons, I am not in a position to sustain the order of the lower Court.

In the result, the following order is passed:

(i) The order passed by the learned II Additional District Munsif, Dindigul dated 05.08.2005, made in I.A. No. 247 of 2005 in O.S. No. 115 of

2003 is set aside. I.A. No. 247 of 2005 stands allowed.

(ii) The lower Court is directed to summon the Expert and to allow him to take the left thumb impression of the third plaintiff in the presence of the

Chief Ministerial Officer of the Court and to compare the same with the disputed thumb impression of the third plaintiff.

(iii) The lower Court is further directed to allow the Expert to compare the disputed signatures of the second plaintiff with the admitted signatures

found in Exs. A.4 and A.6.

(iv) The Expert shall be directed to do the comparison by taking the left thumb impression from the third plaintiff in the presence of the learned

Counsel for both parties.

(v) The lower Court is further directed to allow the parties to adduce further evidence if any on either side after examination of the Expert, if they

seek for permission.

In the above terms, the civil revision petition is allowed. No costs. Consequently, connected C.M.P is closed.