Point of Law : In order to compare disputed signature and handwriting of a person during a particular period, sufficient number of admitted handwriting and signatures (admitted by both parties to the lis), are necessary.

JUDGMENT :

This is an Original Petition filed under Article 227 of the Constitution of India. In this matter, the petitioner, who is the plaintiff in O.S.No.18/2004 on the file of the Sub Court, Attingal, impugns order in I.A.No.1/2021 in O.S.18/2004 dated 12.01.2022.

2. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondent.

3. To be on the facts of this case; the defendant, who is the respondent herein, filed a petition under Order 26 Rule 10A r/w Section 151 of the Code of Civil Procedure to send the promissory note dated 10.12.2002 produced by the plaintiff in the Suit to Forensic Science Laboratory, to ascertain the genuineness of the handwriting and signatures in the same with that of the admitted signatures and handwritings of the defendant. According to the defendant, the promissory note and the contents therein are fabricated and, therefore, expert opinion is necessary to establish the said fact.

4. The plaintiff filed objection narrating the history of the case and sought for dismissal of the petition being filed, belatedly.

5. The learned counsel for the petitioner urged that sending a document, alleged to be executed in the year 2002 for comparison with the admitted handwriting and signatures with that of the defendant at present, would not serve any purpose and such an examination is an impossibility. It is submitted further that in order to compare the disputed handwriting and signature in the promissory note, sufficient number of specimen handwritings and signatures admittedly put by the defendant during the relevant time (2002) are necessary. It is submitted further that the burden of proof in the matter of execution of the promissory note is on the plaintiff and the defendant has no such burden. In view of the matter, the court below went wrong in allowing a much belated petition to put the plaintiff in trouble.

6. Disspelling this argument, the learned counsel for the respondent/defendant herein zealously argued that initially an exparte decree was passed against the defendant and the defendant came to know about the exparte decree, only during 2009. Thereafter, the defendant took steps to set aside the exparte decree and the matter went up to this Court and finally exparte decree was set aside on payment of cost. It is submitted that the defendant emphatically denies the execution of the promissory note in question and, therefore, to prove the said fact an expert opinion, as sought for, is absolutely necessary. Therefore, the court below rightly allowed the petition and the said order does not call for any interference.

7. While addressing the rival arguments, I am inclined to refer two decisions of the Apex Court. The above legal position was earlier held in para.28 of the decision reported in [AIR 2013 SC 633], Ajay Kumar Parmar v. State of Rajasthan, as under:

“28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the court from comparing signatures or handwriting, bu using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the court may also not be conclusive. Therefore, when the court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the court must keep in mind the risk involved, as the opinion formed by the court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon