The plaintiff must provide direct evidence to prove the execution of an agreement, and signature comparison is a supplementary method only when direct evidence is unavailable.

JUDGMENT :

(Rakesh Kainthla, J.)

The present petition is directed against the order dated 30.12.2021 passed by learned Additional District Judge, Sirmaur District at Nahan (learned Trial Court), vide which the application filed by the petitioner (applicant/plaintiff before the learned Trial Court) under Section 73 of Indian Evidence Act read with Section 151 of Code of Civil Procedure (in short ‘CPC’) for comparison of the signatures of respondent No.1 (original defendant No.1) was dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present petition are that a civil suit is pending before the learned Trial Court for specific performance of the Agreement dated 16.02.1987 entered between Maharani Durga Devi and Smt. Nalini Devi through their General Power of Attorney-defendant No.1. The matter was listed for the evidence when the applicant/plaintiff filed an application under Section 73 of the Indian Evidence Act for sending the signatures of defendant No.1 to the handwriting expert for comparison. It was asserted that defendant No.1 had received an amount of ₹15,00,000/- and delivered the possession of the land to the applicant/plaintiff. The sale deed could not be executed because of some litigation amongst the co-sharers. The applicant/plaintiff came to know that the matter between co-sharers was decided before this Court and the property agreed to be sold to the applicant/plaintiff was given to defendants No.2 to 4 to defeat the plaintiff’s rights. The defendants had prior knowledge of the existence of the agreement. They refused to execute the sale deed despite tendering the amount to them. Defendant No.1 denied the execution of the agreement in the written statement. He was called upon to admit or deny the contents of the agreement and the defendants through their counsel denied their signatures. The record of handwriting and signatures is available in the form of a written statement, Vakalatnama and other documents filed before the Court. The comparison of the signatures is essential in view of the denial; hence, the application.

3. The application was opposed by filing a reply taking preliminary objections regarding lack of maintainability and the application having been filed to delay the disposal of the suit. The contents of the application were denied on merits. It was asserted that defendant No.1 had specifically denied the execution of the agreement to sell in his reply to the legal notice. The evidence of the plaintiff was closed by the order of the Court. The evidence of defendant Nos. 2 to 4 is to be led. It is for the plaintiff to prove the due execution of the agreement and they cannot be permitted to fill up the lacuna by filing the application; hence, it was prayed that the present application be dismissed.

4. The learned Trial Court held that the science of comparison of handwriting is not perfect. The property was transferred in a compromise. The plaintiff has to prove the execution of the agreement to sell by examining the scribe and other witnesses. Section 73 of the Indian Evidence Act would not help the plaintiff in proving the document, therefore, the application was dismissed.

5. Being aggrieved from the dismissal of the application, the applicant/plaintiff have filed a present petition asserting that the learned Trial Court misread and misappreciated the material on record. Defendant No.1 had admitted the execution of the agreement and denied his signatures over it. The only remedy available to the applicant/plaintiff was to get the signatures compared by a handwriting expert. Learned Trial Court failed to pass a reasoned order. It failed to exercise the jurisdiction vested in it. Therefore, it was prayed that the present petition be allowed, the order passed by the learned Trial Court be set aside and the documents be sent for comparison.

6. I have heard Mr Suneet Go