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Judgment
Arindam Mukherjee, J
In a suit inter alia for recovery of possession and mesne profits with an alternative prayer for enquiry as against the claim for mesne profits filed
by a partnership firm (plaintiff) the sole defendant has applied for appointment of a handwriting expert for analysis of the signatures and writing in
three documents which have been respectively marked as Exhibit-A , B and E (later two with objection from the defendant) through the
plaintiff’s first witness. The application has been made by the defendant at a stage when the defendant has already put about 170 questions in
cross-examination to the said first witness of the plaintiff.
Defendant’s/Applicant’s contention:-
The defendant says that the plaintiff’s first witness Lalman Chourasia has tendered in evidence a partnership deed of the plaintiff dated 16th
August, 1999 said to have been signed by Manoj Jaiswal, Manish Jaiswal, Lalman Chourasia and Mrs. Seema Sharma claiming to be partners of
the plaintiff partnership firm. This document has been marked as Exhibit-A with the signatures without any objection from the defendant’s side.
The said Lalman Chourasia while deposing as plaintiff’s first witness has also tendered a document being a Deed of Retirement cum
Admission of the plaintiff dated 31st March, 2007 as Exhibit-B. According to Lalman Chourasia the Exhibit-B has been signed by Seema Sharma,
Surendra Prasad Jaiswal, himself (Lalman Chourasia), Manish Jaiswal and Manoj Jaiswal. This document has been tendered with the
defendant’s objection that the signatures of Manish Jaiswal and Manoj Jaiswal in Exhibit-B does not match with their respective signatures in
Exhibit-A. Exhibit-E is said to be a Power of Attorney given by Manoj and Manish Jaiswal to Surendra Prasad Jaiswal. This document has been
also tendered with the defendant’s objection that the signatures contained therein do not match. According to Lalman Chourasia, the
plaintiff’s first witness Exhibit-E contains two signatures â€" Manoj Jaiswal and Manish Jaiswal.
The defendant says that the signatures of Manoj and Manish Jaiswal in Exhibit-A are real signatures. By referring to the style and nature of
signatures of Manoj and Manish in Exhibit-B and E further says that on a comparison of their signatures in Exhibit-B and E with those in Exhibit-A
the signatures are different and the same appears so even to naked eye. The defendant wants the genuineness of the signatures of Manish and
Manoj Jaiswal contained in the said three documents be ascertained by hand writing expert taking Exhibit-A1 and A2 being the signatures of
Manish and Manoj Jaiswal contained in Exhibit-A to be the genuine signatures of Manish and Manoj Jaiswal. The defendant says that this is
necessary as the name of the plaintiff is mentioned as A. T. Goyee Enterprise, the original plaintiff in Exhibit-A while it is A. T. Gooyee Enterprise
in Exhibit-B and E.
The defendant draws support for his claim for appointment of a handwriting expert in the said matter from the judgments reported in AIR 1957
SC 857 (Mobarik Ali Ahmed v. The State of Bombay) [paragraph 11], (1996) 2 CALLT 28(HC) (Narayan Mukherjee vs. Krishna Dey)
[paragraph 10] and (2012) 12 SCC 406 (Ajay Kumar Parmar v. State of Rajasthan) [paragraph 24, 26, 27 and 28].
Contention of the plaintiff:-
The plaintiff submits that the instant application is not maintainable and has been filed with an ulterior motive and malafide intent to seek a roving
enquiry and further delay the proceedings. The plaintiff also submits that the defendant/ applicant has no locus standi to seek a handwriting expert
for the documents in question as he is neither a party nor was he present when such documents were executed and as such cannot question the
authenticity and/or veracity of the said documents.
According to the plaintiff the signatures in document being Exhibit-A was clearly identified by the plaintiff’s witness Lalman Chourasia to
have been signed in his presence. The document being Exhibit-B according to the plaintiff was also executed in the presence of the plaintiff’s
witness Lalman Chourasia and the signatures were clearly identified. The Exhibit-E being a general Power of Attorney according to the plaintiff
was executed by Manoj and Manish Jaiswal in favour of Surendra Prasad Jaiswal on September 14, 1999 before the notary public. The
plaintiff’s witness has identified the signature. The signatures which have been questioned in Exhibit-B and E are not of the defendant, the
defendant is also not a party to the documents and as such the defendant cannot question the same by inviting handwriting expert. The
defendant’s objection as to the signatures have been recorded and the defendant has cross-examined the plaintiff’s witness on this ground.
Thus there is as such no requirement of appointing handwriting expert to verify such signatures as per the plaintiff.
The plaintiff also submits that it is a settled law that if a particular document is placed for and relied upon during cross-examination without
reserving the objection despite there being an objection taken against the same by the defendant at the time when the document was tendered and
marked as an Exhibit, such objection gets over-ruled and the genuineness and veracity of the documents and/or its contents and/or its execution
cannot be subsequently challenged. Thus there stands no reason for Exhibit B or E to be sent to a forensic expert.
The plaintiff also submits that the defendant was inducted as a licensee in 2005. Till date the defendant’s possession has not been questioned
by any third party or by any of the retired partners of the plaintiff firm. Only the partners of A.T. Gooyee Enterprises have filed the present suit on
the strength of the document being marked Exhibit-D by which the defendant was inducted into the suit property. It is, therefore, evident according
to the plaintiff that the said Manoj Jaiswal or Manish Jaiswal have never raised any independent right nor have they questioned the disposition in
favour of the defendant or the authority of the present partners of the Plaintiff to maintain the suit. The signatures of Manoj and Manish Jaiswal are
not germane to the issues involved in the present suit. In fact the issues had already been framed prior to the witness action being initiated and
documents disclosed well in advance. Since the defendant/applicant had not suggested any such issue when the documents were disclosed cannot
raise any issue with regard to execution of those documents at a subsequent stage. Moreover, the retirement of the said partners in question has
nothing to do with the issue of eviction of the defendant from the plaintiff’s property after expiry of license period and violation of the terms of
license. The plaintiff has also objected to the point regarding the name of the partnership firm being changed from “A.T.Goyee Enterprises†to
“A.T.Gooyee Enterprises†as alleged by the defendant. The firm, according to the plaintiff had always been “M/s. A.T. Gooyee
Enterprises†and the defendant was inducted to the suit property in such name. No entity by the name A. T. Goyee Enterprises have also lodged
any claim or have taken any measure as against the defendant despite elapse of a considerable period of firm.
Court’s views:-
1 The instant matter is a suit for recovery of possession and mesne profits filed by a partnership firm against the sole defendant Nand Lal Rathi.
The matter in issue before this Court is that of eviction of the said defendant from the suit property. The existence of Exhibit-A is admitted by the
defendant. Exhibit-A is the formation of the partnership firm. The factum of the partnership firm coming into existence, therefore, cannot be denied
by the defendant. It cannot also be denied that the defendant entered the suit property pursuant to an agreement with the partnership firm being
Exhibit-D. The subsequent changes in the constitution of the plaintiff partnership firm may be a ground of defendant’s objection in support of
his case as made out in the written statement. The defendant’s objection to the signatures in Exhibit-B and E are such that an opinion of the
handwriting expert may not be needed at all at the end of the trial, if the plaintiff succeeds in proving that the partnership firm is entitled to evict the
defendant from the suit property, then the plaintiff succeeds irrespective of the signatures in Exhibit-B and E been accepted by the Court. The
objection raised by the defendant as to subsequent change in partnership or the power of attorney may not be so crucial for deciding the reliefs
claimed in the suit at the end. The formation of opinion regarding the disputed signatures will arise only at the stage of deciding the suit after the
evidence is concluded. It may so happen that the plaintiff latter on examines other witnesses to remove the objections raised by the defendant. It
may be also possible that the objections raised by the defendant succeed after completion of the witness action. The parties have made arguments
on the evidentiary value of the documents tendered in evidence, their importance in proving the case or disproving the same. At this state when
only one witness of the plaintiff has been examined and cross-examined it is too early for the Court to form an opinion as to the signatures. This
should be at a stage when the evidence is over. The observations made hereinabove, however, prima facie and made only for the purpose of
deciding the application so that the Court after completion of evidence can independently scrutinise the matters without being influenced by any
observation at this state. The defendant will have all opportunity to discredit the objected documents at the stage of argument by referring to the
evidence laid down and the provisions of section 61 to 65 of the said Act. If the Court at that stage finds that it requires an opinion from the expert
for the purpose of deciding the objections raised by the defendant, a handwriting expert may be conveniently appointed by the Court invoking the
provisions of Sections 45 and 47 or taking recourse of 73 of the said Act. The provisions of the said Act are very clear in this regard. On the other
hand, if a handwriting expert is appointed at this stage when the defendant’s witness has not gone to the witness box it can be said that
defendant is assisted by the Court to collect evidence which is impermissible in law as it will amount to aiding fishing of evidence. There is as such
no requirement to appoint a handwriting expert at this stage of the suit.
In Narayan Mukherjee (supra), in an application under Order IX Rule 13 of the Code of Civil Procedure, 1908, the defendant wife sought for
appointment of an handwriting expert for comparing and examining her alleged signature on the service return of summons and the
acknowledgement card with her admitted signatures appearing on the Vakalatnama and the application or with any of her admitted signatures. The
Trial Court compared the admitted signatures with the alleged signature on the acknowledgment card and service return by adopting the provisions
of section 73 of the said Act and came to the findings that the alleged signatures were vitiated by fraud. Thereafter the defendant’s application
for setting aside the exparte decree was allowed. On the said order being challenged the issue before the High Court was as to the mode adopted
by the Trial Court. The Trial Court adopted the provisions of section 73 of the said Act by taking upon itself the task of comparing the disputed
signature with the admitted ones. The appellant urged that the Court should have appointed an expert to do the job of comparing the signatures
instead of itself doing the same. The Division Bench of this Court held that the Trial Court was well within its right to compare the writing by itself
as per the provisions of section 73 of the said act without the aid of the handwriting expert and rejected the contentions of the appellant. In the
instant case, the matter has not reached to such stage as it was in the case referred to in the said judgment. Here the witness action has not been
concluded and as such the Court is not for the present required to form a conclusive opinion as to the disputed signatures. This stage in the instant
suit will arise only after the evidence is over and the Court is required to form an opinion about the disputed signatures. At that stage, it will be open
to the Court either to adopt the provisions of section 45 read with section 47 or the provisions of section 73 of the said Act as the Court deems fit
and proper.
The judgment in Mobarik Ali (supra) lays down the principles as to how a document has to be proved. There can be no two views about the ratio
laid down in the said judgment when the same is read with the provisions of section 61 to 65 of the said Act. In the instant case, the defendant has
objected to the signatures of Manoj and Manish Jaiswal in Exhibit-B and E. The said two documents have been tendered with the objection. The
objection, therefore at this stage, is not as to the existence of the validity of the document but restricted to the signatures only. The defendant is free
to argue that the document has no evidentiary value even if it has been tendered in view of his objection when the matter will be argued on
completion of evidence. In view of the ratio laid down in the judgment reported in 2003 (8) SCC 752 (R.V.E Venkatachala Gounder Vs. Arulmigu
Viswesaraswami & V.P. Temple & Anr.), it will be open to the defendant to discredit the signatures at the argument stage after referring to the
evidence that will be laid down by the parties. This stage has not also arrived at in the case in hand.
In Ajay Kumar Parmar (supra), a learned Magistrate after taking note of the statement given by the prosecutrix in that case under section 164 of
the Cr.P.C passed an order of not taking cognizance of offence under section 376 and 342 of IPC and acquitted the accused. In revision the
learned Sessions Court held that the statement of the prosecutrix under section 164 of the Cr.P.C was not worth relying as she was not produced
before the Magistrate by the police. The order of the learned Sessions Court was upheld by the High Court. Challenging the said order of the High
Court, the matter was taken up to the Hon’ble Supreme Court. The Hon’ble Supreme Court allowed the appeal on the findings recorded in
paragraph 24 of the said judgment. The said judgment has no application in the facts of the instant case.
In the facts and circumstances as aforesaid, the application fails and the same is dismissed without any order as to costs.
Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis after compliance with all
necessary formalities.