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High Court of Judicature at Madras
M. VENUGOPAL
Muthukumar
Versus
Shanmugham
C.R.P. PD. NO. 664 OF 2010 & M.P. NO. 1 OF 2010
Decided On : 25-09-2012
Handwriting Expert - Sale Agreement - Indian Evidence Act, Section 45, 91, 92, 106 - The court discussed the admissibility of expert opinion under Section 45 of the Indian Evidence Act and emphasized that it is for the court to draw its own conclusions. The court highlighted the limitations of handwriting expert evidence and the need for additional evidence to establish the veracity of the disputed sale agreement. The judgment also addressed the burden of proof and the shifting onus of proof during trial.
Fact of the Case:
The Petitioner/Defendant disputed the authenticity of a sale agreement, claiming that the signature in the agreement did not belong to him and that the agreement was fabricated by the Respondent/Plaintiff.
Finding of the Court:
The court found that the appointment of a Handwriting Expert alone was not conclusive in determining the veracity of the sale agreement. It emphasized the need for additional evidence, such as examination of attesting witnesses, to establish the genuineness of the agreement.
Issues: The key issues included the admissibility and limitations of expert opinion under Section 45 of the Indian Evidence Act, the burden of proof, and the need for additional evidence to establish the authenticity of the disputed sale agreement.
Ratio Decidendi: The court held that the opinion of a Handwriting Expert is not conclusive and emphasized the importance of additional evidence, such as examination of attesting witnesses, to establish the genuineness of a disputed agreement.
Final Decision: The Civil Revision Petition was dismissed, affirming the judgment and decree of the Subordinate Judge. The parties were left to bear their own costs.
1. The Petitioner/Defendant has projected the instant Civil Revision Petition as against the order dated 03.07.2009 in I.A.No.142 of 2009 in O.S.No.117 of 2008 passed by the Learned Subordinate Judge, Tiruchengode.
2. The Learned Subordinate Judge, Tiruchengode, while dismissing I.A.No.142 of 2009 in O.S.No.117 of 2008 on 03.07.2009, has, among other things, held that 'Moreover, in the written statement filed by the defendant, the signature of the defendant has been admitted and only thing averred is that plaintiff has concocted the document by using the papers containing signatures of defendant. So when the signature is admitted, this petition to appoint Commissioner to take the document to the expert for his opinion does not arise'.
3. According to the Learned Counsel for the Petitioner/Defendant, the Learned Subordinate Judge, Tiruchengode has failed to appreciate that the Petitioner never executed a sale agreement to and in favour of the Respondent/Plaintiff and in fact, the Respondent/Plaintiff has fabricated the suit agreement with a view to grab the property.
4. The principal plea taken by the Petitioner/Defendant is that the signature seen in the sale agreement does not belong to him and also that the attestors and scribe mentioned in the agreement are not known to him.
5. The Learned Counsel for the Petitioner/Defendant projects an argument that in a suit for specific performance, when the signature in issue is disputed in the sale agreement, then, a Court of Law should suo motu send the disputed instrument/document to an Expert.
6. Finally, it is the stand of the Petitioner/Defendant that the Learned Subordinate Judge has gone wrong in not adverting to the aspect as to whether the appointment of Commissioner is very much necessary to transmit the disputed document for Expert's examination.
7. Conversely, it is the submission of the Learned Counsel for the Respondent/Plaintiff that earlier in the main suit, an Exparte Decree has been passed, since the Petitioner/Defendant has not filed the Written Statement and later I.A.No.84 of 2005 under Order 9 Rule 13 of Civil Procedure Code had been filed by the Petitioner/Defendant, which has been allowed.
8. That apart, it is the submission of the Learned Counsel for the Respondent/Plaintiff that the Petitioner/Defendant admits the signature in sale agreement dated 08.05.1999 and that I.A.No.142 of 2009 filed by the Petitioner/Defendant is not maintainable in law.
9. Added further, the Learned Counsel for the Respondent/ Plaintiff contends that I.A.No.142 of 2009 has been filed by the Petitioner/Defendant belatedly when the main suit has been posted in the list with an intention to delay the Court Proceedings as long as possible.
10. At this stage, the Learned Counsel for the Respondent/ Plaintiff cites the decision of this Court in N.Chinnasamy V. P.S.Swaminathan, 2006 (4) CTC 850 at page 863 & 864, in paragraph 37, it is held hereunder:
"37. It is not in dispute that the written statement was filed on 10.6.99 and the Application was filed on 19.10.2004 only. But in the affidavit filed in support of I.A.No.1531/2004 no explanation much less an acceptable explanation was given by the defendant for taking out the Application under Section 45 of the Indian Evidence Act after nearly more than 5 years. Further, even though it was stated in the affidavit that the signature in the sale agreement dated 15.2.94 should be compared with his admitted signature by handwriting expert, there was no mention about the document containing his signature which was admitted by him and which should be compared with the disputed signature. In such circumstances the Trial Court has rightly observed that the application lacks bona fide. This Court, in T.A.Narasimhan V. Narayana Chettiar, 1968 (2) MLJ 48, has deprecated the practice of filing Applications for examination of documents by handwriting experts at a late stage and thereby protracting and holding up the proceedings. This
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