Pathivada Narayanswamy vs Gaulocha Pannalal and Kenguva Appalanarasaiah

This second appeal is preferred against the decree and judgment in A.S. No-7/1996 on the file of the District Court, Vizianagaram.

The 1st respondent-plaintiff filed a suit O.S.No.249/1988 on the file of the Principal District Munsif''s Court, Vizianagaram, on the foot of a promissory note-Ex.A-1 for recovery of a sum of Rs.15,462/- against defendants 1 and 2. It is the claim of the plaintiff that D-1 scribed the said promissory note while both the defendants signed it. While so, the 1st defendant set himself ex parte. The 2nd defendant contested the suit. His contention is that plaintiff and D-1 colluded together and brought into existence Ex.A-1 and that he never executed Ex,A-1. On the basis of the above pleadings, evidence was adduced by both parties. However, in spite of the allegation that Ex. A-1 is a forged document, no steps were taken by either party to send the same for expert opinion. Thereafter, on a consideration of the evidence, the trial court held that the plaintiff failed to prove the execution of Ex.A-1 and accordingly dismissed the suit. On appeal, the learned District Judge, on a re-apprisal of the evidence, held that the oral evidence adduced on behalf of the plaintiff is cogent and trustworthy, but in view of the allegation that Ex.A-1 is a forged document and as the parties did not take any steps for sending it to expert, the learned District Judge, in exercise of the powers u/s 73 of the Indian Evidence Act, 1872, proceeded to examine Ex.A-1 by himself and compared the disputed signature of 2nd defendant on Ex.A1 with his admitted signatures that are available in written statement, vakalat and deposition form and ultimately found that both the disputed and admitted signatures are tallying. He, therefore, held that the signature in Ex.A1 belongs to D-2 only. Accordingly, he decreed the suit against both the defendants.

Aggrieved by the said decree and judgment, the present second appeal is filed contending that for the purpose of ascertaining whether the signature in Ex.A-1 is put by 2nd defendant or not, the Court ought to have sent Ex.A-1 to an expert for his opinion, which will be given on a scientific comparison of the disputed and admitted signatures, u/s 73 of the Evidence Act, and in the absence of any expert opinion in the case, the Court cannot assume the role of an expert and proceed to compare the disputed signature. It is further contended that it amounts to filling up the lacunae in the case of either party and depriving the other party from taking advantage of such lacunae. It is, therefore, contended that the learned District Judge committed a grave error in assuming the role of an expert and the judgment under appeal is, therefore, liable to be set aside as it is not in consonance with the provisions of Section 73 of the Evidence Act. In support of his contention, strong reliance is placed upon the decisions of this Court in Khamarunnissa @ Khammar Bai and Another Vs. Fazal Hussain @ Afsar Hussain and Others, and Mohammed Sultan v. Nawazunnisa, 1997 (3) ALD 631.

But, I am unable to agree with the contention of the appellant. I am of the view that u/s 73 of the Evidence Act, the Court has got ample power to compare the disputed handwriting/signature with the admitted signature of any party before it. In The State (Delhi Administration) Vs. Pali Ram, , the Supreme Court had an occasion to deal with the scope and ambit of Section 73. In paras 24 and 25, the apex Court held as follows:

"A sample writing taken by the Court under the second paragraph of Sec.73, is, in substance and reality, the same thing as ''admitted writing'' within the purview of the first paragraph of Section 73 also. The first paragraph of the section provides for comparison of signature, writing etc., purporting to have been written by a person with others admitted or proved to be satisfaction of the Court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of the English law on the subject, which is the legislative source of this provision, it is clear that such comparison may be by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court."

Thus, according to the ruling of the Supreme Court, the Court is also empowered to compare the disputed handwriting or signature of the party before it, u/s 73, and come to its own logical conclusions. Of course, as held by the Supreme Court in the same case, although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting. Therefore, it is not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert.

No doubt, as has been held by the Supreme Court, it is generally not advisable for the Court to primarily take the task of comparing the disputed writing/signature without first sending it to an expert for his opinion and the only prudent course is, in all ordinary circumstances, to obtain opinion from an expert. But, in a case where there is no opinion at all and when nobody who is an expert in this field is made available to assist the Court in assessing the evidentiary value of the document in question, in such case, I am of the view that the Court is not helpless and it cannot simply shut its eyes by just ignoring an important piece of evidence without subjecting it to its judicial scrutiny. In my view, it amounts to miscarriage of justice. In such a situation, the Court has the option under the provisions of Section 73 to assume the role of an expert and proceed to compare the disputed signature or handwriting. Even in the judgment which is relied upon by the learned counsel in Khamarunnisa v. Fazal Hussain (1 supra), the possibility of taking recourse to Section 73 by Court was never ruled out by the learned single Judge of this Court. What all he says is that such a provision should be taken recourse by the courts in rarest of the rare cases only to meet the ends of justice and not in a routine manner and unless in the absence of any other evidence produced by the parties, The observation of the learned single Judge in this regard are relevant to be mentioned hereunder:

"The law is settled that the recourse to Section 73 should be in extreme cases where the parties will be unable to prove the handwriting and signature through the above procedure and the ends of justice will fail if recourse is not taken to Section 73 of the Evidence Act."

As already stated, in this case, the parties did not take steps for sending Ex.A-1 to expert for his opinion, probably, in view of the fact that the amount which is the subject-matter of the suit is very meagre. Thus, in my view, this is an exceptional case in which the procedure which is required to be adopted u/s 73 of the Act could not be taken recourse to by the parties and under those circumstances, the learned District Judge, with a view to serve the ends of justice, took recourse to Section 73 and compared the disputed signature. In view of what is stated supra, I am of the opinion that the learned District Judge is perfectly justified in taking recourse to Section 73 of the Act and comparing the disputed signature. There is no substantial question of law which arises for consideration in this second appeal. The same is, therefore, not liable to be admitted. It is accordingly dismissed.