THE HONOURABLE SRI JUSTICE N.V. RAMANA AND THE HONOURABLE SRI JUSTICE B.N. RAO NALLA Civil Miscellaneous Appeal No. 1088 of 2010 Judgment: (Per N.V. Ramana, J.) This civil miscellaneous appeal is directed against the order dated 15.11.2010 passed by the learned Judge, Family Court-cum- Additional District Judge, Khammam, allowing the I.A. No. 610 of 2010 in O.S. No. 78 of 2010 filed by the respondent-plaintiff and granting interim injunction restraining the appellant-defendant from alienating the petition schedule property pending disposal of the suit, and making the ad interim injunction granted on 01.10.2010, absolute. Brief facts of the case are that the respondent-plaintiff herein filed the suit in O.S. No. 78 of 2010 before the Court below, for specific performance of agreement of sale dated 18.08.2010 against the appellant-defendant. He also filed the present application in I.A. No. 610 of 2010, for grant of interim injunction restraining the appellant- defendant from alienating the petition schedule property pending disposal of the suit. It is his case that, under the agreement of sale dated 18.08.2010, the defendant agreed to sell him the land in an extent of Acs. 14.21 ½ gts. in Sy. No. 86, situated at Nutankal Village, Thallada Mandal, Khammam District, and received an amount of Rs.3,00,000/- from him towards advance sale consideration. However, when he approached the appellant to receive the balance sale consideration and execute a registered sale deed in his favour as per the terms and conditions of the agreement of sale, the appellant did not come forward to perform his part of the contract and on the other hand he is making efforts to alienate the petition schedule property in favour of third parties. The respondent, therefore, sought for grant of ad- interim injunction, restraining the appellant from alienating the petition schedule property pending disposal of the suit. The appellant-defendant resisted the petition by filing counter, denying the very execution of suit agreement of sale and receipt of advance sale consideration from the respondent-plaintiff. It is stated in the counter that the appellant, along with his son and son-in-law, sold away the land in an extent of Acs. 22.04 gts. in Sy. No. 86, to one Ravi Rajya Lakshmi, under an agreement of sale dated 18.09.2010, for a sale consideration of Rs. 42,00,000/-, and they also received an amount of Rs. 9,90,000/- from her towards advance sale consideration. The respondent, having full knowledge of the said fact, forged and fabricated the suit agreement of sale. It is further stated that the signature available on the suit agreement of sale is not the signature of the appellant and thus comparison of the said signature with that of his admitted signatures available on the documents filed by him, is necessary, for just and proper adjudication of the matter. The Court below, considering the stand taken by the parties, held that the respondent has made out a prima facie case and that balance of convenience was also in his favour and accordingly allowed the present I.A. and made the ad interim injunction granted in favour of the plaintiff on 01.10.2010, absolute. Aggrieved thereby, the present civil miscellaneous appeal is filed. Learned counsel for the appellant mainly contended that the appellant never executed Ex.A1, suit agreement of sale, and the respondent, after issuing Ex.A2-legal notice and upon the same being acknowledged by the appellant under Ex.A3- acknowledgment, fabricated Ex.A1-agreement of sale, and even before expiry of the time mentioned in Ex.A2-legal notice, based on Ex.A1-agreement of sale, filed the suit and sought ad interim injunction, but the learned Judge without considering the fact that Ex.A1-agreement of sale is a fabricated document, erroneously compared the alleged signature of the appellant on Ex.A1 with that of his signature on Ex.A3-postal acknowledgment, and granted ad interim injunction. She further contended that when there were more authenticated signatures of the appellant available on record, especially on Exs.B1, B3 and B4, original agreement of sale dated 18.09.2010 executed by the appellant in favour of Ravi Rajya Lakshmi, original agreement of sale dated 29.11.1999 and acknowledgment issued by the Income Tax department in token of receipt of income returns filed by the appellant, respectively, the Court below ought to have compared the signature on Ex.A1-agreement of sale with that of the signature of the appellant on Exs.B1, B3 and B4, as provided under Section 73 of the Indian Evidence Act, 1872, and as such, it committed a grave error in comparing the alleged signature of the appellant on Ex.A1-agreement of sale with that of his signature on Ex.A3-postal acknowledgement. In support of her arguments, the learned counsel for the appellant relied on the decision of the apex Court in Ajit Savant Majagvai v. State of Karnataka[1]. Hence, she prayed that the order under appeal be set aside and the appeal be allowed. Learned counsel for the respondent, on the other hand, supported the order under appeal and contended that the Court below did not commit any error in comparing the signature of the appellant on Ex.A1-agreement of sale with that of the signature available on Ex.A3- postal acknowledgment, which is an admitted document. He further contended that in the present petition filed by the respondent for interim injunction, the appellant cannot seek comparison of his signatures, and if he has doubts about the genuineness of his signature on Ex.A1, his remedy is to file separate application under Section 45 of the Indian Evidence Act, 1872, and seek sending of the signature on Ex. A1-agreement of sale with that of his other admitted signatures, for comparison, to an expert. He further contended that the Court below, having appreciated the material on record, found that the respondent made out a prima facie case and that balance of convenience was in his favour and thus made the ad-interim injunction granted in his favour earlier, absolute, by the order under appeal, and no interference is warranted therewith by this Court, and prayed that the appeal be dismissed. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the order under appeal and other material available on record. In the light of the arguments advanced, the point that arises for consideration in the present appeal is whether the court below is justified in granting injunction in favour of the respondent-plaintiff, by comparing the signature of the appellant-defendant on Ex.A1-suit agreement of sale with that of his signature on Ex.A3- acknowledgment, under Section 73 of the Evidence Act, 1872. Before proceeding to consider the point framed, we deem it appropriate to consider the scope of Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 and the provisions of Section 73 of the Evidence Act, 1872, in a suit filed for specific performance. The grant of an interim injunction in an application, under Order XXXIX Rules 1 and 2 of C.P.C., during the pendency of legal proceedings is a matter that requires exercise of discretion by the Court. While exercising its discretion, the Court has to apply the following tests - (1) Whether the plaintiff has a prima-facie case? 2) Whether there is balance of convenience in favour of plaintiff for grant of injunction? and 3) Whether the plaintiff would suffer irreparable injury, if his prayer for interim injunction is disallowed. A decision, whether or not to grant interim injunction, has to be taken only when the existence of the legal right asserted by the plaintiff and its alleged violation, are contested and remain uncertain till they are established at the trial on evidence. Relief by way of interim injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated by way of damages recoverable in an action if the uncertainty is resolved in his favour after full-fledged trial. The need for such protection, however, has to be weighed against the corresponding need of the defendant to be protected against injury from his having been prevented from exercising his own legal rights, for which he could not be adequately compensated. The Court must weigh one need against other and determine in whose favour the balance of convenience lies. The relief of injunction being essentially an equitable relief, whether or not to grant the said equitable relief of injunction, in an interim application, shall ultimately rest on the sound judicial discretion of the Court to be exercised in the light of the facts and circumstances of each case. Extra care and caution has to be adopted by the Court, to see that the plaintiff does not intend to achieve something else or is not acting with the ulterior motive in the garb of seeking a temporary injunction. A temporary injunction granted without care and caution may have the effect of making the situation irreversible and by the time the case comes for decision finally, it may become practically impossible to place the person injuncted in the same position in which he would have been if the injunction was not granted. The necessity of a strong prima-facie case arises in such cases because the plaintiff must have extra strength for piercing into the umbrella of shelter taken by the defendant under Section 52 of the Transfer of Property Act. Whether the plaintiff has reasonable prospects of obtaining permanent injunction at the end of the suit and how the plaintiff would suffer irreparable injury in spite of the protection enjoyed by him under Section 52 of the Transfer Property Act, are the additional questions that must be posed by the Court to itself while considering a prayer for the grant of temporary Injunction restraining alienation of suit property. Coming to the scope of Section 73 of the Evidence Act, it would be appropriate if a reference is made to the provisions of the said Section, which read as follows: Comparison of signature, writing or seal with others admitted or proved- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures written with any words or figures alleged to have been written by such person. From a perusal of the above provision of law, it becomes very much clear that, while exercising the discretion conferred on it under the said provision, the Court has to compare the admitted signature with the disputed signature. In catena of judgments, this Court and the Hon’ble Supreme Court have held that though there is no legal obligation for the Judge to use his discretion for comparing the signatures, normally, the Judge should not take upon himself the task of comparing the signatures. The Court cannot supplement what the parties fail; it can only judicially supplement it by adopting a method permissible in law. It must be noted with concern and caution that any such course adopted by the Courts, must serve the ends of justice and not defeat the same. A Judge taking recourse to Section 73 of the Act should convince himself and other that he is conversant with the language in which a particular writing or signature is made and secondly make a record of his experience in the matter, however qualified or otherwise by experience or at least give reasons as to how he is able to draw the similarity between the disputed signature and the admitted signature. The Hon’ble apex Court in Lalit Popli v. Canara Bank[2], basing on its earlier judgment in Murari Lal v. State of M.P.[3], at paragraphs 12 and 13, held as under: “Sections 45 and 73 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) deal with opinion of experts and comparison of signature, writing or seal with others admitted or proved. Section 45 itself provides that the opinions are relevant facts. It is a general rule that the opinion of witnesses possessing peculiar skill is admissible. There was no challenge to the expertise of V.K. Sakhuja. He deposed to have testified in about ten thousand cases relating to disputed documents. Though the employee highlighted certain adverse remarks, it cannot be lost sight of that they were about four decades back. But we need not go into that aspect in detail as no infirmity in the report acted upon by the authority in the present case was noticed or could be pointed out. It is to be noted that under Sections 45 and 47 of the Evidence Act, the court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the handwriting expert, the court can compare the admitted writing with the disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of the handwriting expert need not be invariably corroborated. It is for the court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when an expert’s evidence is not there, the court has power to compare the writings and decide the matter.” The aforesaid judgment and the judgment in Murari Lal’s case were subsequently considered by the Hon’ble Supreme Court in its decision in Thiruvengada Pillai v. Navaneethammal[4], and at paragraph 15 of the said judgment, it observed as follows: “While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression wit the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear where the Court is in a position to identify the characteristics of finger prints, the court may record findings on comparison, even in the absence of an expert’s opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a causal perusal. The decision in Murari Lal’s case (1980 (1) SCC 704) and the decision in Lalit Popli’s case (2003 (2) SCC 583) should not be confused as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague and smudgy and not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in case where the Court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The Court should avoid reaching a conclusion based on a mere casual or routine glance, or perusal.” From the above judgments, what emerges is that though the Court has got power to compare the admitted signature with the disputed signature, as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself, the responsibility of comparing the signature. Further, in cases where the Court is constrained to take up such comparison, it should make a thorough study and the judgment should contain the reasons for such conclusion. Now coming to the present case, the Court below has compared the signature of the appellant-defendant on Ex. A1-suit agreement of sale with that of his signature on Ex.A3 and further recorded a finding at paragraph 11 of the order that the signature on Ex.A3 is not disputed by the appellant-defendant. However, a perusal of the counter filed by the appellant-defendant before the Court below makes it clear that nowhere in the said counter, the appellant- defendant had admitted the signature on Ex.A3-acknowledgement to be of his signature. What has been admitted by the appellant- defendant is receipt of Ex.A2-notice. The law is well settled that the admitted signatures should be compared with the disputed signatures, and if at all the court below wanted to compare the signature of the appellant-defendant on Ex.A1, it should have compared the admitted signatures of the appellant-defendant with the disputed signature and ought to have given the reasons for its conclusions. The Court below, thus, while exercising power under Section 73 of the Evidence Act read with Section 151 of C.P.C., should have examined the admitted signatures on the documents marked by the appellant-defendant in B series, which are anterior to the litigation or the signatures on Vakalath and counter-affidavit. The Court below has, thus, committed grave error in relying upon Ex.A3-postal acknowledgement for comparison of the signatures. The Court below has failed to follow the procedure and appreciate, both in the matter of applying its mind to the facts of the case and taking into consideration the relevant legal principles. For the foregoing discussion, we are of the considered opinion that the order under appeal deserves to be set aside with a consequent remand of the matter to the Court below for consideration afresh, taking into consideration the provisions of Section 73 of the Evidence Act and the principles governing grant of interim injunction as discussed by us in the preceding paragraphs. The appeal is accordingly allowed, setting aside the order under appeal. The matter is remanded to the Court below, with a direction to hear the parties again and decide the present application filed by the respondent-plaintiff for grant of temporary injunction afresh, in accordance with law and in tune with the observations made hereinabove. However, the appellant is directed not to alienate the suit schedule property till the disposal of the present I.A. No costs. _______________________ JUSTICE N.V. RAMANA ________________________ JUSTICE B.N. RAO NALLA 4th March, 2011 IBL [1] 1997 AIR (SC) 3255 [2] (2003) 3 SCC 583 [3] (1980) 1 SCC 704 [4] 2008 AIR SCW 1684