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2011 Supreme(Cal) 1135
HIGH COURT OF CALCUTTA
TARUN KUMAR GUPTA, J.
Bhabani Prasad Basu - Appellant
Versus
Hari Dasi Paul - Respondent
S. A. No.351 of 2007 AND S. A. T. No.2006 of 2006
Decided on : Aug 19, 2011
Susovan Sen Gupta, Jahar Lal De, Guru Saday De
In a civil case, the standard of proof is preponderance of evidence, not proof beyond all reasonable doubts.
Headnote:
SPECIFIC PERFORMANCE OF CONTRACT - AGREEMENT OF SALE - RELIANCE ON HANDWRITING EXPERT REPORT - ADMISSIBILITY OF EVIDENCE - INTERPRETATION OF CIRCUMSTANTIAL EVIDENCE - SUFFICIENCY OF PROOF - STANDARD OF PROOF IN CIVIL CASES - ESTOPPEL AGAINST STATUTE.
Fact of the Case:
Plaintiff sued for specific performance of a contract, alleging that he was inducted as a tenant in the suit premises by the predecessor-in-interest of the defendants with permission to develop the land and make permanent structures for business purposes. A written agreement of sale was executed in 1992, but the sale deed was not executed despite requests. The defendants contested the suit, denying the agreement and claiming that the plaintiff filed a false story to delay eviction proceedings.
Finding of the Court:
The trial court and the first appellate court dismissed the suit, relying on the report of a handwriting expert who opined that the signature on the alleged agreement of sale was not that of the deceased landlord. The courts also considered circumstantial evidence, such as the filing of injunction and ejectment suits by the landlord against the plaintiff, and the one-sided terms of the alleged agreement of sale.
Issues: 1. Whether the lower courts erred in relying on the opinion of the handwriting expert based on xerox copies of documents. 2. Whether the opinion of the handwriting expert was admissible in evidence. 3. Whether the lower courts erred in dismissing the plaintiff's claim on the ground that he failed to prove his case beyond all reasonable doubts. 4. Whether the plaintiff was estopped from challenging the order of the trial court forwarding unadmitted and xerox copies of documents to the expert for comparison.
Ratio Decidendi: 1. The handwriting expert's report was admissible in evidence, as the original signatures of the deceased landlord were produced in court by his son through an affidavit, and the trial court forwarded those signatures along with other admitted signatures to the expert for comparison. 2. The lower courts did not err in relying on the report of the handwriting expert, as it was based on a comparison of the disputed signature with admitted signatures of the deceased landlord. 3. The lower courts did not err in dismissing the plaintiff's claim on the ground that he failed to prove his case beyond all reasonable doubts, as the standard of proof in civil cases is preponderance of evidence, not proof beyond all reasonable doubts. 4. The plaintiff was not estopped from challenging the order of the trial court forwarding unadmitted and xerox copies of documents to the expert for comparison, as there is no estoppel against a statute.
Final Decision: The appeal was dismissed, as the concurrent findings of fact of the lower courts were based on evidence and sound reasoning and did not call for interference under Section 100 of the Code of Civil Procedure, 1976.
Tarun Kumar Gupta, J.
1. THIS appeal is directed against judgment and decree dated 31st day of March, 2006 passed by learned Additional District Judge, VIth Court, Alipore, in Title Appeal No.46 of 2005 in affirming the decree/order dated 23rd February, 2005 passed by learned Civil Judge (Senior Division), 9th Court at Alipore, in Title Suit No.24 of 2004.
2. THE appellant plaintiff filed said suit for specific performance of contract. Appellant /plaintiffs case, in short, was that he was inducted as a tenant in the suit premises by Laxmi Kanta Pal, predecessor-in-interest of the defendants with a permission to develop the land as well as to make construction thereupon for business purpose. THE tenancy agreement was executed in 1976. THE plaintiff developed said land and made permanent structures for running his business. In 1986-1987 Laxmi Kanta Pal approached plaintiff for purchase of said land. Though plaintiff was agreeable but Laxmi Kanta Pal demanded excessive price. To put pressure upon the plaintiff Laxmi Kanta Pal filed a Title Suit being No.228 of 1987 in the Court of learned Munsif, 2nd Court at Baruipur for permanent injunction and other reliefs. Said title suit was later transferred to the Court of learned Additional Munsif, 2nd Court at Alipore being renumbered as Title Suit No.160 of 1993.
However, in the last part of 1992 there was a settlement in between plaintiff and Laxmi Kanta Pal regarding sale of suit property to the plaintiff and accordingly a written agreement of sale was executed in between the parties on 11th December, 1992. Though Laxmi Kanta Pal received Rs.5000/- as an earnest money on the date of execution and also received a further amount of Rs.5000/- on 26.03.1993 but sale deed was not executed in spite of request by plaintiff. Laxmi Kanta Pal ultimately died on 17th July, 1993 leaving behind the present defendants as his heirs and legal representatives. Plaintiff approached the defendants time and again for execution of said sale deed in terms of the agreement but without any result. On 24.05.1996 the defendant No.1 flatly denied to execute any sale deed. The plaintiff was all along ready to perform his part of the contract and hence was the suit for specific performance of contract.
3. DEFENDANT No.2 contested the suit by filing written statement which was adopted by other defendants, denying material allegations and contending inter alia that Laxmi Kanta Pal never approached plaintiff for sale of the suit property and there was no agreement as alleged. Laxmi Kanta Pal filed an eviction suit against the plaintiff on the ground of default and other grounds. In order to delay the eviction the plaintiff has falsely made out the story of execution of an agreement of sale by Laxmi Kanta Pal.
4. AFTER contested hearing the plaintiff lost the suit. Trial Court opined on the basis of the report of hand writing expert and other evidence on record, and circumstantial evidence that the signature appearing on the alleged deed of agreement was not of L. K. Pal and that the facts and circumstances was also against the story of execution of alleged deed of agreement of sale by L. K. Pal in favour of the plaintiff. Learned First Appellate Court came to the same conclusion and dismissed the appeal.
At the time of admission of this appeal following substantial questions of laws were framed by Honble Division Bench.
(a) Whether both the learned Courts below committed substantial error in law upon relying on the opinion of the hand-writing expert.
(b) Whether both the learned Courts below committed substantial error in law upon accepting the opinion of the hand-writing expert who expressed opinion after comparing the signature of the deceased landlord with the xerox copies of the documents.
(c) Whether the opinion of the hand writing expert in the present case is admissible in evidence.
5. AT the time of hearing of argument another substantial question of law was framed which stands as follows:- Whether b
