IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2011 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN Civil Revision Petition (PD) No.1063 of 2008 and M.P.No.1 of 2008 Sampathkumar ... Petitioner Vs. P.Selvaraj ... Respondent Prayer: This petition has been filed under Article 227 of the Constitution of India against the fair and decreetal order of the District Munsif Court at Mettupalayam, dated 31.01.2008 in I.A.No.895 of 2007 in O.S.No.209 of 2004. For petitioner : Mr.P.Valliappan For respondent : Mr.P.Muthukrishnan ORDER This Civil Revision Petition has been filed against the fair and decreetal order of the District Munsif Court at Mettupalayam, dated 31.01.2008 in I.A.No.895 of 2007 in O.S.No.209 of 2004. 2. The 4th defendant in O.S.No.209 of 2004 on the file of the District Munsif, Mettupalayam is the Revision Petitioner. He is aggrieved by the order of the trial court dated 31.01.2008 in I.A.No.895 of 2007 dismissing the application filed by him under Section 151 C.P.C. to summon the concerned signature expert for comparison of signatures. 3. The brief facts which are necessary for the purpose of disposing of the above CRP are as follows: The plaintiff in O.A.No.209 of 2004 prayed for a judgment and decree directing the 5 defendants to receive the balance consideration of Rs.15,000/- from him towards the sale consideration, failing which, to order for specific performance of contract dated March 2003 and deliver possession by the execution of sale in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 4. The case of the plaintiff is that the suit schedule property absolutely belonged to K.Natarajan who was in absolute possession and enjoyment of the same. The said K.Natarajan who is no more now, entered into an agreement with the plaintiff on 20.03.2003, agreeing to sell the property for Rs.75,000/- to the plaintiff. On 20.03.2003 itself, the said K.Natarajan received a sum of Rs.60,000/- and only a sum of Rs.15,000/- is payable towards the balance sale consideration, which has to be paid within 11 months from the date of the agreement i.e., on or before 20.02.2004. Though the plaintiff demanded him to come forward to execute the sale, the sale could not be concluded and on 08.07.2003, K.Natarajan passed away leaving behind the five defendants as his legal heirs. Hence, the plaintiff filed O.S.No.209 of 2004 for the aforesaid reliefs. 5. The 4th defendant, the Revision Petitioner herein filed a written statement and contested the suit. According to the 4th defendant, the property was not purchased by K.Natarajan alone and in fact he also contributed his funds for constructing the house. In fact, the electricity connection is standing in his name. He denied that the said K.Natarajan entered into an agreement of sale for Rs.75,000/-. He never knew that K.Natarajan executed a sale agreement in favour of the plaintiff. He contends that the plaintiff is a financier and K.Natarajan borrowed a sum of Rs.40,000/- from the plaintiff for an urgent need and this was well known to the defendants 4 and 5 who are the attestors in the said created agreement. He stated that the property mentioned in the sale agreement would fetch nearly about Rs.2.5 lakhs on the date of the sale agreement and he also denied that a sum of Rs.60,000/- was paid by the plaintiff at the time of entering into the alleged agreement. He further submitted that the sale agreement is nothing but a financial transaction and therefore it is a created one for the purpose of lending loan to K.Natarajan. After receiving the notice dated 11.02.2004, he contacted the plaintiff and enquired about the transaction. At that time, the plaintiff agreed to receive the loan amount of Rs.40,000/- borrowed by the deceased K.Natarajan along with interest and therefore, he did not send any reply to the notice. Now, the plaintiff filed the false suit for the purpose of coercing the defendants and also for illegally grabbing the property. Hence, he prayed for the dismissal of the suit. 6. The 4th defendant/the revision petitioner filed I.A.No.895 of 2007 under Section 151 C.P.C. praying for an order to summon the concerned signature expert for comparison of signatures. In the affidavit filed in support of the said I.A.No.895 of 2007, the 4th defendant stated that the suit itself is filed on the basis of the agreement, in which, his father said to have put his signature in the alleged agreement. His father never signed in any agreement at any point of time and the signature in the said agreement is a forged one. Thus the suit agreement itself is a created one. He further https://hcservices.ecourts.gov.in/hcservices/ stated that he can produce the specimen signature of his father before this Court. If the alleged signature in the suit agreement and his father’s original signature is compared by a signature expert, then, the truth would come out. Hence, he filed I.A.No.895 of 2007 for the aforesaid relief. 7. The trial court by order dated 31.01.2008 dismissed the above I.A.No.895 of 2007 by stating that the trial had already begun in the year 2005 itself and P.W.1 was also examined in chief. Subsequently, despite several opportunities given to the 4th defendant, the 4th defendant never came forward to cross-examine P.W.1 and hence, the suit was decreed ex-parte on 13.03.2007. Thereafter, the ex-parte decree was set aside and again the suit was posted for the cross- examination of P.W.1. At this juncture only, I.A.No.895 of 2007 has prematurely filed for comparison of the signatures. The trial court further observed that as the alleged sale agreement is a registered one, the trial court can itself easily compare the signatures, if the specimen signature of the 4th defendant’s father is produced. The trial court further pointed out that the 4th defendant neither produced the admitted signature nor cross-examined the P.W.1. Therefore, according to the trial court, even without cross-examining the P.W.1., filing a petition is highly premature and it could not be allowed. Accordingly, the trial court dismissed I.A.No.895 of 2007 and aggrieved by the same, the 4th defendant filed the above revision petition under Article 227 of the Constitution of India. 8. Heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also gone through the entire documents available on record. 9. The learned counsel for the petitioner relying on the following decisions vehemently contended that as the entire case has been based on the alleged sale agreement, it is necessary that the signatures must be compared by an hand writing expert to decide the lis properly. 1. 1996 (2) SCC 704 (O.Bharathan vs. K.Sudhakaran and another) 2. 2008 (2) MLJ 395 (Ammani Ammal vs. Dhanalakshmi Bank Limited, Tiruppur and others) 3. 2005 (3) CTC 286 (Chinnappan and another vs. Chinnammal) 4. 1998 (3) CTC 650 (Kuppanna Gounder and another vs. R.Sivakami) 10. Per contra, the learned counsel for the respondents submits that there is no bonafide in the application filed by the 4th defendant for comparing the signatures. Further, this has been filed only with the sole intention of protracting the proceedings. The learned counsel further pointed out that once the signature is denied, it is for the plaintiff to prove his case and the 4th defendant need not take this application, that too when the matter is already in trial stage. In support of his submissions, he relied on the following decisions of this Court reported in: https://hcservices.ecourts.gov.in/hcservices/ 1. 2005 (1) CTC 12 (P.Sood & Co., (Manufacturing), represented by its Partner, Krishna Kumar vs. Peerchand Misrimalji Bhansali, Prop., Meena Metals, No.74, C.P.Road, Bombay – 400 054.) and 2. 2006 (4) CTC 850 (N.Chinnasamy vs. P.S.Swaminathan) 11. I have considered the rival submissions carefully with regard to facts and citations. 12. The only question that arises for consideration in this revision petition is whether the trial court has correctly dismissed the i.A.No.895 of 2007 or not. 13. It is not in dispute that the suit has been filed for the specific performance of sale agreement dated 20.03.2003. The case of the plaintiff is that the father of the 4th defendant when he was alive executed the sale agreement for selling the suit schedule property for a sale consideration of Rs.75,000/- and on the date of the entering into the sale agreement itself a sum of Rs.60,000/- was paid towards the sale consideration. As the father of the 4th defendant passed away before executing the sale deed, the plaintiff filed the suit and the specific stand of the 4th defendant in the written statement is that the sale agreement is created only for the purpose of lending loan and in fact it is only a financial transaction. A perusal of the written statement filed by the 4th defendant will make it very clear that nowhere in the written statement, the 4th defendant raised the question that the signature contained in the sale agreement is a forged one. 14. It is also not in dispute that in the year 2005 itself the trial had commenced and P.W.1 was examined in chief. Thereafter, the suit was decreed ex-parte on 13.03.2007. Subsequently, on a petition filed by the 4th defendant, the ex-parte decree was set aside and the suit was again posted for cross-examination of P.W.1. At that time only, I.A.No.895 of 2007 was filed for comparison of signatures and eventhough the trial court has not given the proper reason for dismissing the I.A.No.895 of 2007, I am of the considered view that the trial court has rightly dismissed the said I.A.No.895 of 2007. 15. First of all, the 4th defendant while filing the written statement in the year 2004, never pleaded that the signature contained in the agreement is a forged one. Secondly, no such application was taken until the suit was posted for trial and until P.W.1 was examined in chief. In fact, this application was filed only when the suit was posted for cross-examination of P.W.1. That apart, once the 4th defendant denies the signature of his father and contends that it is a forged one, then the onus is shifted to the plaintiff only to prove his case and therefore, I am of the considered view that there is no merits in I.A.No.895 of 2007 and accordingly the same deserves to be dismissed. Hence, I do not find https://hcservices.ecourts.gov.in/hcservices/ any grounds to interfere with the order of the trial court while exercising my powers under Article 227 of the Constitution of India. 16. Now, let me consider the decisions relied on by the parties. 17. In 1996 (2) SCC 704 (cited supra), the Hon’ble Supreme Court held that court should not itself compare the dispute signatures without the assistance of an hand writing expert, when the signatures with which the disputed signatures are to be compared, are themselves not admitted signatures. 18. In the above decision, the Hon’ble Supreme Court held that although there is no legal bar to the judge to use his own eye to compare the disputed writing with the admitted writing, even without the aid of hand writing expert, the judge should as a matter of prudence and caution, hesitate to base his finding with regard to an identity of an hand writing which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore not advisable that a judge should take upon himself the task of comparing the admitted writing with the dispute one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert. 19. The facts in the above decision are totally different and this judgment is not at all helpful to the case of the revision petitioner especially when he did not produce the admitted signature of his father, that too, for the contemporaneous period. It is also trite law that even while comparing the admitted signature with the disputed signature, the signatures must be of a contemporaneous period and in the present case, not even any admitted signature of the father of the 4th defendant was produced by the 4th defendant even though in the affidavit, he had stated that he could produce the specimen signature of his father. 20. In 2008 (2) MLJ 395 (cited supra), a Division Bench of this Court held that when there is a serious dispute with regard to signatures, it is always advisable for the court or the tribunal to refer the matter to an expert. The Division Bench followed the judgment of the Hon’ble Supreme Court reported in 1996 (2) SCC 704 (cited supra) for the purpose that it is not advisable for the judge to take upon himself the task of comparing and the prudence of the courts is to obtain the opinion and assistance of an expert. This judgment was also rendered in a different context and that too, in a different set of facts and therefore, this is also not helpful to the case of the petitioner. 21. In 2005 (3) CTC 286 (cited supra), this court held that when the entire case rests upon the agreement of sale and the signature in that agreement is disputed, comparison of signature is essential and https://hcservices.ecourts.gov.in/hcservices/ therefore, this court directed the trial court to send the documents to the hand writing expert. The facts in that case are also different that is when the sale agreement was produced, it was immediately denied and was contended that the signature is a forged one. Only in that context, this court held that signatures should be compared by an hand writing expert. As already observed by me in this case, in the written statement filed by the 4th defendant, the 4th defendant never contended that the signature is a forged one and he only added that it is a created one for the purpose of lending money and it is only financial transaction. 22. In 1998 (3) CTC 650 (cited supra), this court after going through the facts held that there is a primafacie case for the revision petitioner to come forward with the applications and the same could not be thrown out as belated. Therefore, only on the basis of the peculiar facts of that case, this court held that the application for comparison of signature could not be thrown out as belated. In this case, the written statement was filed by the 4th defendant in the year 2004 itself and only in 2007 for the first time the 4th defendant stated that the signature is a forged one. Therefore, this judgment is also not helpful to him. 23. In 2006 (4) CTC 850 (cited supra), this court held that when the defendant disputes the signature in a document relied on by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to hand writing expert. In that case, though written statement was filed disputing the signature in the agreement, the application was filed to send the document for comparison only after 5 years. Therefore, this court upheld the order of dismissal by the trial court. 24. In 2005 (3) CTC 12 (cited supra), a Division Bench of this Court held that when the defendant denied the signature in the reply notice itself and also in the written statement, the plaintiff ought to have taken steps for examination of the disputed signature by hand writing expert. 25. Admittedly, in this case, no reply was sent to the notice sent by the plaintiff before instituting the suit and the 4th defendant in his written statement did not plead that the signature is a forged one. Therefore, when he filed the application for sending the document for the opinion of the hand writing expert, that too, without filing an affected document of the contemporaneous period, I am of the considered view that such an application lacks bonafide and it has been filed only to protract the proceedings. Moreover, no real prejudice would be caused to the 4th defendant by not sending the document for the opinion of the hand writing expert as it is for the plaintiff to prove his case which includes proving that the sale agreement was executed by the father of the 4th defendant by duly signing the same. https://hcservices.ecourts.gov.in/hcservices/ 26. In the light of the above, I find no merits in the case and the same is dismissed. No cost. M.P.No.1 of 2008 is also dismissed. 27. Considering the fact that the trial has already commenced, that too, in the year 2005 itself, I direct the trial court to show utmost urgency and try to dispose off the suit as expeditiously as possible on merits and in accordance with law preferably within a period of four months from the date of receipt of a copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cse To The District Munsif Court,Mettupalayam 1 cc To M/s.P.Valliappan, Advocate, SR.9431 1 cc To Mr.P.Muthukrishnan, Advocate, SR.10251 order made in C.R.P. No.1063 of 2008 and M.P.No.1 of 2008 RS (CO) RH (25.2.11) https://hcservices.ecourts.gov.in/hcservices/