S. Manikumar, J.@mdashThe Civil Revision Petition is directed against the fair and decretal order dated 07.08.2006 passed in I.A. No. 6415 ol"2006 in O.S. No. 7078 of 1998 on the file of the XIV Assistant City Civil Judge. Chennai.
2. Brief facts leading to the Civil Revision Petition are as follows:
The plaintiff is the petitioner. He filed a Suit for the grant of a decree for recovery of Rs. 2.00.000/- by way of damages from the defendant. It is the case of the plaintiff that the defendant has suppressed the fact of his earlier marriage, a divorcee, an impotent and married his daughter by cheating them as if he was a bachelor and due to which, the petitioner was put to mental agony. Pending disposal of the Suit, the petitioner filed I.A. No. 6415 of 2006, seeking permission to take subpoena for the opinion from the Forensic Laboratory with regard to tampering of date in Ex. B2 and to file a report, as part of evidence in the above said Suit.
3. In the Interlocutory Application, the petitioner has submitted that the defendant with view to counter the aforesaid averment has altered and tampered the date and the place mentioned in Ex. B2. a letter addressed by one Mr. C. Kannan of Mysore to the father of the defendant. It is the specific allegation of the petitioner that the contents of Ex. B2. written by one Mr. C. Kannan of Mysore, are in thin letters, whereas the date and the place "Mysore" are in thick letters, which would show that there was tampering and overwriting. To cover up the tampering of the date, the defendant had overwritten the word "Mysore". The date 04.05.1995 has been altered as 07.12.1995, by erasing 4 and changing it as ?. - The month ''5'' has been changed as "2" and by adding I before 2, the month has been altered as December 12. It is also the case of the petitioner that tampering of the word "Mysore" as well as numbers are visible even through naked eyes. Therefore, the petitioner has taken out an Application in I.A. No. 864 of 2006. for a direction to conduct an enquiry and forward a finding that the defendant has committed an offence of fabricating false evidence in relation to Ex. B2 and prayed that the Court may make a Complaint in writing thereof as against the defendant to the competent Magistrate. The lower Court has declined to accept this prayer, but suggested that he may file an Application separately to establish the fact of tampering by the defendant in relation to Ex. B2 and take proper steps to get the opinion from the Forensic Laboratory. Pursuant to the direction, the petitioner has taken out an Application for the relief as stated supra.
4. The respondent/defendant in his counter affidavit has denied the allegation that he is a divorcee, an impotent and married petitioner''s daughter as if he was a Bachelor. He has further denied the allegations of tampering of Ex. B2. It is the case of the respondent that when the document was marked, there was no objection and having failed to question the genuineness of Ex. B2. the petitioner has taken out the Interlocutory Application to drag on the proceedings. He has further submitted that the petitioner had filed nearly 20 Applications in the above Suit and most of them were dismissed as unnecessary by the lower Court and that the litigation has been dragged from 1998 to 2006 for nearly seven years. The respondent has further submitted that Ex. B1 is a letter written by one C. Kannan from Mysore to the father of the defendant and he is no more. He has further submitted that the contents of the letter can be proved only by examining the executor of that letter and the petitioner, who is a third party, has no locus standi to say that it has been tampered with. The respondent has further submitted that the plaintiff did not explain in his affidavit as to how the alleged tampering has affected his case and therefore, in the absence of prejudice, the plea should not be entertained.
5. The respondent has further submitted that when the petitioner has filed an Application in I.A. No. 864 of 2006, alleging that the defendant had meddled and tampered the date mentioned in Ex. B2, the lower Court, taking note of the facts and circumstances of the case, dismissed the said I. A., and there was no observation in the order, permitting the petitioner to submit an Application separately to establish the fact of tampering by the defendant in relation to Ex. B2 and to take out steps to get the opinion from the Forensic Laboratory. The respondent has further submitted that the original of Ex. B2 was lost and only a copy of the same was marked as Ex. B2 in the above Suit, without any objection by the plaintiff. The Application to take subpoena for obtaining the opinion from the Forensic Laboratory with regard to tampering of date mentioned in Ex. B2 and to file a report is unnecessary and it will not in any away help the Court to resolve the dispute and hence prayed for dismissal of the Application.
6. After hearing the rival submissions, the learned Trial Judge dismissed the Application on 07.08.2006. against which, the plaintiff has filed the present Civil Revision Petition.
7. Mrs. Chitra Sampath. Learned Counsel for the petitioner submitted that the lower Court ought to have considered the observation of the Court made in I.A. No. 864 of 2006, that the copy of the letter, Ex. B2. can be sent to the Forensic Department for obtaining a report, regarding the correction of date and should have allowed the Petition for effective adjudication. She further submitted that the reasoning of the lower Court that no specific direction was given while dismissing I.A. No. 864 of 2006. is erroneous and taking into consideration, the nature of the dispute, i.e.. Matrimony, the Application filed by the petitioner is only for issue of subpoena for opinion from the Forensic Laboratory should be allowed.
8. Mr. K. Lavan, Learned Counsel for the respondent submitted that there was no specific direction from the lower Court to send the document. Ex. B2 to the Forensic Department and having failed in his attempt to persuade the lower Court to conduct an enquiry and forward the report that the defendant had committed an offence of fabricating the false evidence in relation to Ex. B2, the petitioner has taken out another Petition with a view to drag on the proceedings. Heard the counsel appearing for the parties and perused the materials available on record.
9. Before adverting the facts of this case, it is necessary to extract certain provision of the Indian Evidence Act, 1872. for the purpose of deciding the case. Sections 45 and 73 of the Act, are extracted hereunder:
45. Opinions of experts. - When the Court has to form an opinion upon a point of foreign law or of science or art. or as to identify of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
73. 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 so written [with any words or figures alleged to have been written] by such person.
10. Though this Court, on many occasions, has considered the issue as to whether documents can be taken out of the Court for expert opinion, let me consider a recent decision of this Court, which has culled out the principles of law to be followed in the above matter. After elaborately considering the provisions of the Evidence Act, the decisions of the Supreme Court as well as this Court and in particular, the decision in
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3. The provision u/s 73 of the Indian Evidence Act reads as follows:
73. 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 so written [with any words or figures alleged to have been written] by such person.
4. Thus it is clear that the said provision of law gives ample power to the Trial Court to compare the signature in the disputed document and the admitted signatures of the revision petitioner and then come to - an independent conclusion based on such comparison. If in any event, the Trial Court finds it difficult to arrive at any definite conclusion even after such comparison, it is open to either of the parties to take the document to a handwriting expert for comparison and offering his opinion on this aspect of the matter. Hence this Court is of the considered view that the Trial Court may be suitably directed to adopt such course as stated above and dispose of the Suit at an early date.
5. Thus the Civil Revision Petition is ordered as here under:
(i) The Trial Court is directed to compare the disputed signature of the revision petitioner with that of the admitted signatures to arrive at the right conclusion. If in any event, the Trial Court is unable to reach any definite conclusion after comparison of such signatures of the revision petitioner and the signature in dispute, a suitable direction may be given to the revision petitioner/defendant to take the document to the forensic laboratory for comparison by a handwriting expert in order to obtain the expert opinion.
(ii) The Trial Court is also directed to dispose of the Suit within three months from the date of receipt of a copy of this order.
28. In the above judgment, this Court held that Section 73 of the Indian Evidence Act gives ample powers to the Trial Court to compare the signature with the disputed document and the admitted signature to come to an independent conclusion. If the Trial Court finds it difficult to arrive at a definite conclusion, it is open to take the document to a handwriting expert for comparison and offering his opinion.
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12. Therefore, it is clear that the crux of the entire case rests upon the document. Ext. XI and it is very much relied on by the plaintiff in support of her case that she is the daughter of Perumal Gounder born through his wife-Perumayee Animal to whom admittedly, the suit properties belonged to in view of the purchase as per the sale deeds referred to above. Inasmuch as the signatures of the second defendant, first defendant and his two sons in the said agreement Ex. XI and also the thumb impression of the plaintiff in that document is challenged, it is just and proper that the document is to be tested and examined by the Handwriting Expert to find out as to whether the signatures and thumb impression claimed to be the signatures of the second defendant, first defendant and his two sons and the thumb impression of the plaintiff, are that of the second defendant, first defendant and his two sons and of the plaintiff. In that view, the defendants have made out their case for sending the document Ex. X 1 to the handwriting Expert by appointing Advocate-Commissioner mainly for the purpose of comparing the signatures and thumb impression in the document Ex. X1 in that the document is very much relied upon by the plaintiff to show and find out as to whether the plaintiff is the daughter of Perumal Gounder bom through his wife-Perumayee Ammal to whom it is alleged, the suit properties belonged to as the self-acquired properties. It follows, the dismissal of the Petition by the Trial Court by stating that the Suit is pending for more than 7 years and therefore, there is no necessity to compare the signatures of the second defendant, first defendant and his two sons and the thumb impression of the plaintiff along with admitted signatures and thumb impression, cannot be said to be proper and the Trial Court has committed an error in the approach made for dismissing the Petition. Therefore, the order of the Trial Court is to be set aside.
30. In the above decision, this Court observed that when the crux of the entire case rests upon a particular document, which is challenged by the other side that the document is forged, it is just and proper that the document is to be tested and examined by the handwriting expert to find out the truth and this Court has also observed that the delay of more than 7 years need not be held against the petitioner for filing the Application belatedly.
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32. From the above judgments, the following principles, have emerged:
(1) Section 73 of the Indian Evidence Act authorises the Court to compare the disputed signature with the admitted signature in order to come to its own conclusion,
(2) It is always safe for the Court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons..
(3) The practice of sending original documents in the custody of the Courts to the handwriting experts is a highly objectionable one and a very bad procedure.
(4) The proper procedure would be to permit the handwriting expert to inspect the document in the Court premises itself in the presence of some responsible officers of the Court.
(5) If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the Court.
(6) When examination of the disputed documents within the Court''s premises, is not possible due to genuine difficulties expressed by the expert, the Court has to find out the alternative way of achieving the object for the purpose of doing justice.
(7) In such circumstances as mentioned above, the Application has to be treated as an Application for an appointment of the commissioner in whose presence the examination of the disputed document has to be conducted by the expert.
(8) When the investigation cannot be conveniently conducted within the premises of the Court and the same has to be carried out in the laboratory of the Forensic Department of the Government of Tamil Nadu, it is necessary to appoint a commissioner to conduct the investigation of the document in his presence.
(9) Filing Application for examination of documents by handwriting expert at a late stage thereby protracting and holding up the proceedings is highly objectionable.
(10) Merely because of the reasons that the Trial Court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar or ban for the First Appellate Court for sending the documents to get the expert opinion.
(11) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document.
(12) When the defendant denies the signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps for examination of the'' disputed signature by sending the document to a handwriting expert.
11. Applying the principles of the above judgment, I do not find that the petitioner has made out any case for granting the relief prayed in the Civil Revision. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
