S. Manikumar, J.—Being aggrieved by the dismissal of an application in I.A. No.528 of 2005, filed under Order 41 Rule 27 of CPC and Section 45 of the Evidence Act to get an expert opinion by comparing the handwriting found in Exs. A3 and A4, with the admitted handwriting of the second respondent, by getting the same from him, the civil revision petition has been filed. The plaintiffs are the revision petitioners.
2. The very prayer made in the interlocutory application makes it clear that the revision petitioners wanted the Court to take a signature from the second respondent and to send the same for an expert opinion.
3. Material on record shows that the revision petitioners have filed a suit in O.S. No.2 of 2006, to set aside the sale executed in favour of the first defendant on 17.10.2002. The main contention in the suit is that the third plaintiff is working in the hospital of the second defendant. She borrowed a sum of Rs.2,00,000/- from the third defendant. The amount could not be paid by them. The second defendant was working with the third plaintiff. At the time of paying the above amount as security, a sale deed was executed in favour of the first defendant on 17.10.2002. The second defendant also agreed to re transfer the property immediately when the plaintiffs returned the amount with interest. The second defendant has also calculated interest in the prescription chit. The plaintiffs sought for cancellation of the registered sale deed. The suit on contest, ended in dismissal. Aggrieved over the same, the plaintiffs have preferred I.A. No.528/2012, in A.S. No.63/2012, to compare the handwriting in Ex.A3 and A4 with the admitted signature of the second respondent, by getting the same from him. The suit was filed in the year 2006. The alleged signature in the sale deed, was made on 17.10.2002.
4. According to the appellant/plaintiffs, they have agreed to repay the amount with value of stamp paper, to the tune of Rs.4,85,970/-. At that time, the second respondent asked the third plaintiff to pay interest for Rs. 4,80,000/-, at the rate of 2%, which was also agreed to by the third plaintiff. The second respondent calculated the amount in his own handwriting for the period from 17.10.2002 till January 2003, in the prescription chit and interest was also received by him. Exs.A3 and A4 are the prescription Chits, issued by the second defendant for receipt of Rs.30,000/- , as part of interest. The calculation in Exs. A3 and A4, have been made only in the handwriting of the second defendant. But, in the suit, the second defendant has denied the handwriting found in Exs. A3 and A4. In the above said circumstances, at the appellate stage, the plaintiffs in the supporting affidavit to I.A. No.528/2012, have submitted that by oversight and mistake, the said documents have not been sent for expert opinion, for comparison with the admitted handwriting of the second defendant and hence, sought for comparison by an expert opinion under Order 41 Rule 27 of CPC read with Section 45 of the Evidence Act. In support of the contention, the plaintiffs placed reliance on the decision of this court in Subramanian v Palani @ Palaniappan, 2012 (3) MWN (Civil) 141.
5. The defendants 1 and 2 have not filed any counter affidavit. The third defendant has filed a counter affidavit denying the allegations. She has also submitted that though sufficient opportunity was available to the plaintiffs, to file an application before the court below, they have not filed any application and only to protract the proceedings and harass the defendants, the application has been filed at the belated stage. It was also submitted that the application was nothing but an attempt to fill up the lacunae in the case by adducing evidence. The third defendant has contended that admittedly, when there was no admitted handwriting of the second respondent available on record, the court cannot compel a person to give his handwriting, for the purpose of comparison.
6. Material on record discloses that it was also contended by the third defendant that the alleged handwriting of the second respondent in Exs.A3 and A4, was of the year 2002 and after nearly ten years, such handwriting cannot be compared, unless there is contemporaneous handwriting available on record. According to the defendants, the attempt on the part of the plaintiffs, to seek for an expert opinion, is an attempt to protract the proceedings.
7. On the above pleadings and proceedings, the court below has framed the following issue for consideration :
"Whether the petitioners are entitled to send Exs.A3 and A4 with admitted signatures of the second respondent herein for expert opinion?"
8. On the materials available on record, the court below has observed that though the plaintiffs have submitted that Exs.A3 and A4 have to be compared with the admitted signatures of the second respondent, upon perusal of the records, neither the admitted handwriting of the second respondent nor any contemporaneous signature, is available. Considering the contention, of the plaintiffs that the signatures of the second defendant could be obtained in the open court and thereafter, Exs.A3 and A4, have to be sent for expert opinion for comparison, after giving due consideration to the decisions of this court in Subramanian v. Palani @ Palaniappan, 2012 (3) MWN (Civil) 141, the court below has held that the question in dispute in the above judgment related to thumb impression of the party. The thumb impression would remain unchanged from the beginning and hence it can be compared by the expert at any point of time and on the facts and circumstances of the said case, this Court has allowed the petition, to take the sample of left hand thumb impression of the concerned party for comparison. Applying the said judgment to the facts of the case on hand, the court below has found that the second defendant has remained ex parte in the suit. Having regard to the prayer sought for in I.A. No.528/2012 i.e., to compare the handwriting of the second respondent of the year 2002, found in Exs.A3 and A4, upon perusal of the records, the court below has found that except the alleged signature of the year 2002, there is no other handwriting of the second respondent available on record, except the calculation made in figures. The court below has also observed that no handwriting available in Exs.A3 and A4 and in any event, even assuming that there was some handwriting available, the same could be compared only with a contemporaneous record and further observed that even if the signatures could be compared, after taking the handwriting of the second respondent, any finding of the handwriting expert to be recorded is not a conclusive proof at all. After observing that the handwriting and signatures could be compared only with the signature of the contemporaneous period, and no useful purpose would be served for deciding the case, even after getting any sample handwriting from the second defendant for comparison, that too, after a gap of ten years, the court below has dismissed I.A. No.528/2012. The court below has also observed that the intention of the plaintiffs in filing the application for comparison after nearly 10 years, is only to delay the appeal.
9. Though Mr. Manoharan, learned counsel for the revision petitioners has contended that it is the duty of the court to get the signature from the second defendant and thereafter, to send Exs.A3 and A4 for the purpose of comparison by Expert, to secure the ends of justice, this Court is of the view that as rightly observed by the court below, that in the absence of contemporaneous signatures of the second defendant of the year 2002, getting the signature in the year 2012, from the second defendant, who remained ex parte in the suit and thereafter, sending Exs.A3 and A4, along with the signature obtained from the second defendant for comparison by the expert, cannot be countenanced. The decision relied on by the learned counsel for the petitioner is inapposite to the facts of this case.
10. From the perusal of the order, it is also clear that the court below, after considering the facts in Subramanian v. Palani @ Palaniappan, 2012 (3) MWN (Civil) 141 cited supra, has found that the question in dispute in the above case related to thumb impression of the party. Handwriting may vary after a lapse of time and as rightly contended by the third defendant, the court cannot compel a person to give the handwriting of the second defendant, when no contemporaneous signature of the year 2002, is available on the record. There are no merits in the revision petition. The civil revision petition is dismissed. No costs. The connected miscellaneous petition is closed.
