IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO.189 of 2011 Date of decision: 29.9.2011 Rajinder Kumar Sood ….Petitioner Versus Punjab and Sind Bank and others ….Respondents Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No For the petitioners: Mr.Neeraj Gupta, Advocate. For the respondents: Ms.Vandana Kuthiala, counsel for R-1. _________________________________________________ Deepak Gupta, J. (oral) 1. The petitioner (hereinafter referred to as the defendant), has filed this petition challenging the order dated 7th April, 2011 whereby the application filed by the petitioner for sending certain documents for comparing the alleged signatures on those documents with his admitted signatures to the handwriting expert has been rejected. 2. The undisputed facts are that the petitioner and one Liyakat Ali had entered into a partnership and in furtherance of their partnership business had obtained a loan from the plaintiff bank. Various allegations have been made by the petitioner against Liyakat Ali but it is not 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 necessary to refer to all these allegations. The relevant facts are that as per the petitioner, the partnership between him and Liyakat Ali was dissolved on 27th December, 1990 and thereafter Liyakat Ali had even given an affidavit agreeing to pay whatever amount was due and payable by the partnership firm to the plaintiff bank. The question whether such inter se agreement is binding upon the bank is a question for the trial Court to decide and this Court is not expressing any opinion on the same. 3. The grievance of the petitioner is that after the alleged dissolution of the partnership, certain documents were filed by Liyakat Ali with the bank which purported to contain the signatures of the petitioner. The case of the petitioner is that none of these documents which were furnished to the bank after dissolution of the partnership firm on 27.12.1990 are signed by him and therefore these documents be sent to the handwriting expert for comparison. 4. It would be pertinent to mention that when the written statement itself was filed, the present petitioner had filed a similar application and had prayed that the documents be sent for comparison to the hand-writing expert. The then 3 Civil Judge (Junior Division) had rejected this application mainly on the ground that the petitioner-defendant was still to step into the witness box and till he himself stated on oath that signatures were not his, there was no need to send these documents for examination by the Expert. After the defendant-petitioner appeared in the witness box, he again filed such an application. 5. The learned trial Court disbelieved the petitioner and held that he was not a sleeping partner of the firm and the liability of every partner is joint and several and every partner is liable to pay the debts of the firm and therefore, even if the documents were forged by Liyakat Ali, the petitioner would still be bound by the same. He has also relied upon the fact that in the suit filed by the petitioner against Liyakat Ali it was not written that Liyakat Ali had forged his signatures on the loan papers executed on 20.11.1993. Further, the learned trial Court has been impressed by the fact that though the petitioner alleges that Liyakat Ali in connivance with the plaintiff bank forged the signatures on the document dated 20.11.1993 but the petitioner 4 has not taken any action against the bank officials. 6. To say the least, the reasoning given by the learned trial Court is devoid of any merit. At the stage of deciding the application, the learned trial Court should not have embarked upon and decided the main issue in hand. He at best could have arrived at a prima facie conclusion that the petitioner-defendant was not a sleeping partner but could not have given a finding without discussing the entire evidence. Further more, the suit filed by the plaintiff against Liyakat Ali was filed prior to 20.11.1993 and how could any reference to documents executed after filing of the suit have been made in the plaint. Similarly, why should the petitioner take action against the bank officials? It is not the case of the petitioner- defendant that the bank officials had forged the signatures but his case is that the bank officials connived with Liyakat Ali in the forgery. At this stage, this Court is not expressing any opinion on the merits of the allegations nor is it expected to go into the merits of the case, but the learned trial Court could not have dismissed the application on this ground. 5 7. Mrs.Vandana Kuthiala, learned counsel appearing on behalf of the Bank submits that under Section 45 of the Partnership Act even after a partnership is dissolved, a partner of the dissolved firm is bound by the admissions of the other partner unless public notice of dissolution has been given. She also submits that there is nothing on record to show that such public notice was given. Therefore, she submits that whether the signatures are forged or not is immaterial and even in case the signatures are forged the petitioner is bound by the documents signed by Liyakat Ali. She also submits that the Court itself can compare the signatures under Section 45 of the Evidence Act and there is no necessity to send them to the Expert for comparison. Her last submission is that under Order 26 Rule 10-A, a Commission can be issued only if the Court feels that it is necessary and if the Court has exercised the discretion vested in it that should not be interfered with in these proceedings. 8. As far as first objection is concerned, there can be no manner of doubt that under Section 45, a partner is bound by the acts of the other partner despite dissolution of the firm unless it is shown 6 that public notice was issued. At this stage neither the trial court nor this Court can give any finding on this question. Whether the petitioner is bound by these documents or not is a question which the learned Court below must decide after recording evidence and hearing the parties but the petitioner-defendant has a right to prove that the signatures on the document are not his. What is the effect of the signatures not being his is something for the trial Court to decide? 9. As far as second objection is concerned, if the objection of Mrs.Kuthiala is taken to its logical conclusion then in no case can an Expert be appointed to compare the handwriting. No doubt, Section 45 empowers a Judge to compare the hand-writing but Judges are not experts in the field of comparison of hand-writing. They have been empowered to compare writings keeping in view their experience in the field, but this does not mean, when signatures are disputed they cannot be sent to Experts. In the present case, right from the day one, the defendant-petitioner has been disputing his signatures on the documents. His case is that his signatures have been forged by Liyakat Ali in connivance with the officials of the bank. I see 7 no reason why the signatures should not be got compared. 10. As far as the last submission of Mrs.Kuthiala that the learned trial Court has exercised discretion vested in it, there can be no quarrel with the proposition of law that this Court does not correct errors of fact but only errors of jurisdiction, in exercise of its jurisdiction under Article 227 of the Constitution of India. However, discretion vested in any Court has to be exercised in a judicious manner. If the Court which exercises jurisdiction, exercises the same in a totally illegal or perverse manner, then this Court can and in fact is duty bound to interfere. Here is a case where the first application filed by the petitioner at the initial stage was rejected on the ground that he had still to step into the witness box. After he stepped into the witness box and filed the fresh application, the same was rejected on the grounds which are totally inconsistent with the legal provisions. 11. In view of the above discussion, this petition is allowed, the order of the learned trial Court dated 7.4.2011 is set-aside and the learned trial Court is directed to send the documents in question alongwith admitted signatures of the 8 petitioner-defendant to an handwriting expert. The learned trial Court may direct the Expert to give his opinion in a particular time frame so that case is not delayed. It is made clear that the observations made hereinabove have been made only for the purpose of deciding this petition and this Court has not expressed any opinion on the merits of the case and on the question whether the documents bind the defendant-petitioner or not which is a question the learned trial Court should decide strictly in accordance with the evidence and the law. The parties through their learned counsel are directed to appear before the learned Trial Court on 1st November, 2011. 12. The petition is disposed of in the aforesaid terms. No order as to costs. September 29, 2011 (Deepak Gupta) PV Judge