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Judgment
M. Chockalingam, J.—What is challenged herein is an order of the learned Additional District Judge cum Chief Judicial Magistrate, Karur
dismissing an application filed by the petitioners herein for appointment of a handwriting expert to compare the signatures in the agreement of sale
dated 19.8.1981 marked as Ex. A2 and the signature in the receipt dated 30.1.84 marked as Ex. A4 along with the signatures in the admitted
documents dated 30.1.84 marked as Ex. A3, on the basis of which the relief was sought for by the petitioners/plaintiffs.
It was a suit filed by the petitioners herein for specific performance seeking a direction to the respondents/defendants to execute a sale deed on
the basis of an agreement of sale dated 19.8.81 and the receipt dated 30.1.84. The execution of those documents was flatly denied by the
respondents/defendants. On trial, the suit by the revision petitioners was dismissed. Aggrieved plaintiffs have brought forth an appeal in A.S. No.
34 of 2001 pending on the file of the learned Additional District Judge. During the tendency of the appeal, the instant application seeking the
appointment of an handwriting expert to compare the signatures found in Ex. A2 agreement and Ex. A4 receipt along with the admitted signatures
found in the document under Ex. A3 was filed. On contest, the said application was dismissed. Aggrieved plaintiffs have brought forth this revision.
Arguing for the petitioners, the learned Counsel would submit that the lower Court has dismissed the application only on the ground of delay;
that it is true that steps were not taken by the plaintiffs when the suit was pending before the trial Court, but a comparison was done by the trial
Court invoking Sec. 73 of the Evidence Act; that on comparison, the trial Court has accepted the defence, which grievance was ventilated before
the first appellate forum, and hence, it was a fit case where a handwriting expert has got to be appointed to compare the signatures before the
matter is heard by the first appellate forum.
Opposing the above contentions of the petitioners'' side, the learned Counsel for the respondents would urge that the suit was filed in the year
1990; that even in the written statement, the execution of the agreement and the receipt was specifically denied by the defendants, but no steps
were taken by the plaintiffs all along; that after trial, the trial Court has well compared the signature invoking Sec. 73 of the Evidence Act; that
when the appeal was filed by the aggrieved plaintiffs, they have not stated that it is a fit case for sending those documents for expert''s opinion; that
it was not only the case of delay, but it was a thorough lack of bonafide; that the lower Court has rightly dismissed the application, and hence it is a
fit case where the order of the lower Court has got to be sustained.
After careful consideration of the rival submissions, the Court is of the view that it is a fit case where a handwriting expert has got to be
appointed for the purpose of comparison of the signatures found in the agreement and the receipt marked as Exs.A2 and A4 respectively.
It was a suit for specific performance, based on a written agreement of sale. It is true that the execution of the said agreement and the receipt for
payment of consideration marked as A-2 and A-4 respectively was flatly denied by the defendants. It is also true that no steps were taken by the
plaintiffs'' side for sending those documents for expert''s opinion. In such circumstances, the trial Court invoking Sec. 73 of the Evidence Act has
compared the signatures. A perusal of the judgment of the trial Court would clearly indicate that the said comparison was not properly done. On
the dismissal of the suit, the plaintiffs have brought forth an appeal, during the tendency of which the instant application has been filed. The Court is
unable to notice any infirmity or illegality in filing such an application before the first appellate forum. Merely because of the reason that the trial
Court has compared the admitted signature and the disputed signature invoking Sec. 73 of the Evidence Act, there is no bar or ban for the first
appellate Court sending the documents for canvassing the expert''s opinion. Under such circumstances, an opportunity has got to be given for the
comparison of the documents by a handwriting expert. The Court is unable to notice any lack of bonafide, but, there was delay. The Court is of the
view that the delay that was caused in making such a request before the trial Court cannot be equated to the lack of bonafide. Therefore, it is a fit
case where the delay has got to be compensated by way of awarding reasonable costs along with a direction to the first appellate Court to dispose
of the appeal within a stipulated time.
In the result, this civil revision petition is allowed, setting aside the order of the lower Court. I.A. No. 37 of 2002 in A.S. No. 34 of 2001 is
allowed on condition that the petitioners/plaintiffs shall make payment of costs of Rs. 3, 000/- (Rupees three thousand) directly to the Counsel for
the respondents/defendants, who is appearing in the appeal before the first appellate Court, within four weeks here from, failing which the
application shall stand automatically dismissed. That apart, the lower appellate Court is directed to dispose of the appeal within a period of three
months from the date of receipt of copy of this order. No costs. Consequently, connected CMP is closed.