Velu Naicker vs Elumalai Naicker

G. Rajasuria, J.—This second appeal is focused by the original Defendant, animadverting upon the judgment and decree dated 13.09.2010

passed in A.S. No. 93 of 2008 by the Principal District Judge, Chingleput, reversing the judgment and decree of the learned Subordinate Judge,

Madurantakam in O.S. No. 70 of 2000. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:

(a) The Plaintiff filed the suit seeking specific performance of the agreement to sell with the following prayer:

(i) For specific performance of the contract directing the Defendant to execute and register the sale deed to Plaintiff in respect of the suit properties

within the time to be specified by this Hon''ble and in default this Hon''ble Court itself to execute and register the sale deed on behalf of the

Defendant to Plaintiff and receive from Plaintiff the sum of Rs. 27,000/- the balance of the sale consideration;

(ii) For permanent injunction restraining the Defendant, his men, servants and agents from in any way interfering with the Plaintiff''s peaceful

possession and enjoyment of suit properties; and (c) for costs.

(Extracted as such)

(b) The written statement was filed by the Defendant resisting the suit.

(c) Whereupon the trial Court framed the issues.

(d) During trial, the Plaintiff examined himself as P.W.1 along with P. Ws.2 and 3 and Exs.A1 to A11 were marked. The Defendant examined

himself as D.W.1 and Exs.B1 to B36 were marked. Mr. K. Ayyanarappan, the Advocate Commissioner was examined as C.W.1 and Ex.C1 was

marked as court document.

(e) Ultimately the trial Court dismissed the suit, as against which appeal was filed by the Plaintiff. Whereupon, the first appellate Court reversed the

finding of the trial Court and decreed the original suit.

Being aggrieved by the judgment and decree of the first appellate Court, the Defendant preferred this Second Appeal on various grounds

suggesting the following substantial questions of law:

(a) Is the Lower Appellate Court correct and justified in reversing the judgment and decree of the Trial Court?

(b) Is the Lower Appellate Court correct and justified in holding that the suit is not barred by limitation?

(c) Is the Lower Appellate Court correct and justified in holding that Ex.A1 suit agreement is true without really understanding the defense raised

by the Defendant?

(d) When the Defendant has categorically denied and disputed Ex.A1 especially not only with reference to signature but also with reference to

contents is the Lower Appellate Court correct and justified in holding that Ex.A1 is true even without considering the defense raised properly?

(e) On the face of the defense that the signature in Ex.A1 is not his and that has been forged by Vedachalam P.W.2, is the Lower Appellate Court

correct and justified in holding that Ex.A1 is true without considering the above defense raised and without rendering a categorical finding on that

aspect?

(f) On the face of the experts'' opinion and even without comparing the signature is the Lower Appellate Court correct and justified in holding that

Ex.A1 is true?

(g) On the face of evidence of P.W.1 the Lower Appellate Court should have rejected Ex.A1?

(h) On the face of endorsements in Ex.B6 and B7, is the Lower Appellate Court correct in holding that there was consideration for Ex.A1 and that

Ex.A1 is true?

(i) Is the Lower Appellate Court correct and justified in granting relief of specific performance to Plaintiff when he has not come to Court with

clean hands and has come to Court with false plea?

(i) Is the Lower Appellate Court correct and justified in holding that the Plaintiff is in possession pursuant to the agreement Ex.A1?

(extracted as such)

Heard both sides.

After hearing both sides, I have been of the considered view that the following substantial questions of law do arise in this case.

(1) Whether both the Courts below were justified in not getting the handwriting expert examined and marking the expert opinion along with the

relevant photos and negatives concerned? and whether the first appellate Court was justified in comparing the disputed signature with the admitted

signatures and arrive at the conclusion that it was genuine, in the absence of referring to various principles available in Forensic Science relating to

verification of handwriting?

(2) Whether there is any perversity or illegality in the findings rendered by both the Courts below?

The learned Senior Counsel for the Appellant/Defendant would put forth and set forth his arguments, which could tersely and briefly be set out

thus:

(a) At the instance of the Defendant, the impugned and purported signature of the Defendant in Ex.A1-the agreement to sell was sent to the expert

for obtaining expert opinion. Whereupon, the expert gave his opinion to the effect, that the purported signature found in Ex.A1 was not that of the

Defendant.

(b) The trial Court after coming across the fact that there was no objection filed as against the said report, believed that report and dismissed the

suit taking into consideration the various other facts and circumstances.

(c) However, the first appellate Court throwing to winds the well settled principles, simply applied its own ratiocination and reasoning and

disagreed with the findings of the trial Court and held as though the signature found in Ex.A1 is that of the Defendant and mainly based on that hes

decreed the suit, warranting interference in the Second Appeal.

Per contra, in a bid to torpedo and pulverize the arguments as put forth and set forth on the side of the Defendant, the learned Senior Counsel

for the Respondent/Plaintiff would advance his arguments, the gist and kernel of them would run thus:

(a) The first appellate Court appropriately and appositely, correctly and legally ignored the expert opinion for the reason that the expert was not

examined, and the trial Court did not apply its mind properly by taking into account the law governing the expert opinion.

(b) Furthermore, the first appellate Court by virtue of Section 73 of the Indian Evidence Act, compared the disputed signatures with the admitted

signatures and ultimately arrived at the conclusion that there was nothing to doubt the genuineness of the signature of the Defendant as found in

Ex.A1.

(c) The first appellate Court also relied on the evidence of the scribe and the attesting witness to Ex.A1 and rendered its judgment warranting no

interference in the Second Appeal.

Both the substantial questions of law are taken together for discussion as they are inter linked and inter woven with each other.

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

(i) The decision of the Hon''ble Apex Court reported in Thiruvengada Pillai Vs. Navaneethammal and Another, ; certain excerpts from it would run

thus:

When 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 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 therefore of the view that the decision of the High Court, reversing the decision of the first appellate

Court, does not call for interference."" (emphasis supplied) (ii) The decision of this Court reported in 2008 (3) CTC 470 [Ganapathy Thevar v.

Shanmuga Thevar] could also be fruitfully cited; certain excerpts from it would run thus:

...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,

The normal procedure to be adopted by the trial Court in matters of this nature is that, no sooner the handwriting expert''s opinion is received

by the Court, due opportunity should be given to both sides to file objections, if any, and the Court also at the request of the parties, issue certified

copies of the expert opinion at their cost. On issuance of the certified copies of the expert opinion, the parties should be given opportunity to file

objections, if any. Whereupon, the expert at the appropriate stage of the trial should be summoned to be present, so to say, to depose about the

opinion given by him and normally an expert should be examined as a Court witness and both sides should be given opportunity to cross examine

him based on their objection, if any, already filed.

At the time of adjudication, the law does not enjoin the Court to verbatim adopt the view of the expert. The perusal of the aforesaid decisions

would clearly demonstrate and display that the expert opinion should be taken only as a opinion and not a decision of the expert imposed upon the

Court to implicitly follow it and adapt it. In fact, if the Court wants to adapt it, the ratiocination of the Judge should be the buttressing factor to it

and in the event of disagreeing with the expert opinion, once again reasons should be found spelt out in the judgment to dislodge the expert opinion.

Only after application of mind on the expert''s report and the oral deposition given by the expert, the so called evidence given by him actually

becomes evidence in stricto sensu and the opinion of the expert as found in the report cannot be verbatim taken by the Court. But in this case,

curiously enough the trial Court failed to adopt such a procedure and the appellate Court also misdirected itself.

I have gone through the docket sheet pertaining to O.S. No. 70 of 2000, wherein the trial Court on 07.03.2005 endorsed that ""Report

received from Forensic Department. P.W.1 cross. P.W.1 not present. Adjourned."" The trial Court should have given opportunity on that day itself

by making endorsement that both sides were entitled to file objections, if any, and for that they were entitled to obtain certified copy of the expert

opinion. I would also hasten to add and vindicate that if for any reason the parties find it difficult to apply for such a certified copy and thereafter

file objections, there are well established procedures as per Civil Rules of Practice to seek permission of the Court to peruse the records in the

presence of the Head Clerk concerned. Whereas, in this case, such a procedure was not adopted. The trial Court in the judgment observed as

though no objection was filed as against the handwriting expert by the Plaintiff. The trial Court should have followed the proper procedure as set

out supra. The litigative process is a complex one, wherein the parties cannot shift their responsibility and put the blame on Court only. Obvious

and axiomatic, as it is that the proper conduct of a trial, is a team work of the Judge and both side advocates. If any one among them fails to

discharge his duty properly, it will lead to travesty of justice. No doubt, the duty is on the parties also to see that at the appropriate stage they are

availing the opportunity given to them by law. It appears by oversight such a procedure was not followed either by the Court or by the parties

concerned.

The trial Court, as such in view of my discussion supra, was not justified in simply accepting the report of the handwriting expert and the first

appellate Court even though adverted to the fact that the expert was not examined etc., but it simply assumed the role of an expert and it made

some comparison unsatisfactorily. The decision cited supra would discourage the Courts to assume the role of an expert and make comparison

and if they do so, they have to virtually adhere to the principles enshrined in the Forensic Science concerning analysis of handwriting. But in this

case, such a measure was not adhered to by the appellate Court. The first appellate Court being the last court of facts, should have given

opportunity to the parties concerned to get summoned the expert and examined before it, but that was also not done. So far this case is concerned,

since the Defendant disputes his signature in Ex.A1 and already there is an opinion by the expert in his favour and that it was not properly

exhibited, or proved before the Court, not to put too fine a point on it, I am of the view that deciding the case at the Second Appellate stage

without having the best evidence before it might not be proper. Hence I am of the considered view, that the matter has to be remitted back to the

trial Court for adhering to the aforesaid procedure.

Wherefore, the substantial question of law No. 1 is decided to the effect that both the Courts below were not justified in not getting the

handwriting expert examined and expert opinion marked along with the relevant photos and negatives concerned, if any.

The substantial question of law No. 2 is decided to the effect that since both the Courts below failed to take into account the aforesaid points

discussed supra, interference in the Second Appeal is warranted.

Accordingly, the matter is remitted back to the trial Court with the following direction:

On receipt of the copy of this order, the trial Court shall give opportunity to both sides to file objections, if any, to the expert''s opinion and

thereafter shall issue summons at the cost of the Defendant to the expert for appearing before it and for giving evidence. Whereupon he be

examined as Court witness giving opportunity to both sides to cross examine if they so desire, and if either of them wants to adduce further

evidence, let them be allowed to do so. Thereafter, as observed by me supra, the Court should apply its mind on the evidence available and either

agree or disagree with the expert''s opinion for reasons to be recorded in the judgment, untrammeled and uninfluenced by any of the observations

made by this Court in disposing of this matter, preferably within a period of four months from the date of receipt of a copy of this judgment.

The learned Senior Counsel for the Plaintiff would make an extempore submission that since the matter is now remanded back to the trial

Court, opportunity be given to the Plaintiff also to file ante litem motem documents containing the signatures of the Defendant and get the purported

signature of the Defendant in Ex.A1 compared with those signatures and a fresh opinion obtained. I am of the view that it is open for the Plaintiff to

file necessary application which shall be considered on merits.

The parties shall appear before the trial Court on 11.04.2011.

Accordingly, this Second Appeal is disposed of. However, there shall be no order as to costs.