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Judgment
S. Palanivelu, J.—The petitioners are defendants 1 to 4 in O.S. No. 87 of 2006 on the file of the Additional District Judge cum Fast Track
Court No. 1, Madurai. The first respondent filed a suit for recovery of money on the basis of a promissory note.
The first respondent filed an application in I.A. No. 950 of 2008 under Order 26 Rule 10A and Section 151 of C.P.C. praying the court to
appoint an Advocate Commissioner and through him to forward Ex.A1 original promissory note and other admitted signatures of defendants 1 to 4
available the Court records to the hand writing experts for compression of signatures. The petitioners herein resisted the application by stating that
the court is the best expert and the court itself has got ample power to inspect and compare the signatures u/s 73 of the Indian Evidence Act.
The learned Fast Track Judge No. I, Madurai has allowed the application after hearing both sides by observing that in order to render a
complete judgment, it is necessary to ascertain whether the signatures found in the suit promissory note belong to these defendants and hence, the
suit promissory as well as the court documents namely, the written statement and the Vakalat in which, their admitted signatures are available for
the comparison of the hand writing. Hence, the plaintiff is before this Court.
The learned Counsel for the petitioner Mr. S. Manohar would submit that inasmuch as there are every possibilities for the defendants to sign in a
different fashion, when they received notice or summons from the court in a suit field, on the strength of any document filed against them and hence,
the records which contain the signatures, which originated after the commencement of the suit proceedings could not be considered for comparison
of the signatures with those in the disputed documents.
It is his further contention that it has been held by this Court that when the trial court intends to refer the matter to the expert for comparison of
signatures or handwriting, the admitted signature should find place in the documents, which were prior to the filing of the suit and not after that. In
support of his contention he placed much reliance upon a Division Bench decision of this Court reported in 2008(1) CTC 816 (Ammani Ammal v.
Dhanalakshmi Bank Ltd. Tiruppur and Ors.) wherein the learned Judges, after following principles laid down in the decisions of the Supreme
Court, held that though Section 73 of Evidence Act, 1872, empowers the Court to compare signatures, it would be advisable for court to refer the
matter to expert when there is a serious dispute with regard to signature. The relevant portion in the said judgment with incorporation of the
operative portion Supreme Court decision is as follows:
The Debts Recovery Appellate Tribunal took the task of comparing the signatures of the petitioner and observed that there is no variation
between the admitted signature and the disputed signature. When there is a serious dispute with regard to the signature, it is always advisable for
the court or Tribunal to refer the matter to an expert. Of course, Section 73 of the Indian Evidence Act permits the Court to compare the
signature. However, in cases like the present one, where the signatures are found in so many documents, and execution of mortgage itself is in
dispute, it is better to send those documents for expert opinion.
In O. Bharatan Vs. K. Sudhakaran and another, , the Apex Court, relying on an earlier judgment reported in AIR 1978 SC 14, held that it is
not advisable that a judgment should take upon himself the task of comparing the admitted handwriting with the disputed one to find out whether
the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert.
Even though Section 73 of the Indian Evidence Act permits the Court to compare the disputed signature with that of the admitted signature,
such signature can be compared only with admitted signatures available which are prior in point of time. The Debts Recovery Appellate Tribunal
did not compare the signature with the admitted signature which were contemporaneous and therefore, the learned Senior Counsel appearing for
the petitioner is right in his submission that there may be some difference in the signature of a person by lapse of time and as such, the petitioner
was justified in objecting to the comparison of her signature in the disputed documents with that of her present signature.
It has also been held by this Court that the admitted signatures found in the written statement, counter and Vakalat filed by the defendant in a
suit, cannot be considered for comparison of signatures available in the disputed document. The said practice has been deprecated by this Court in
a catalogue of decisions. This Court has taken a consistent view that the documents containing the admitted signatures and those in the disputed
documents shall be of contemporaneous period and comparison of which alone would be appropriate.
In considered view of this Court, following the decisions of the Apex Court, it is advisable that the court below shall require the defendants to
produce the documents which contain their admitted signatures contemporaneous to the date the suit promissory note and after hearing both sides,
it shall refer the matter to the wisdom of the handwriting expert for comparison and to decide the issue. Hence, the matter is remitted back to the
court below to comply with the directions in this order by observing procedures as settled by this Court.
With the above said observation, the C.R.P. is allowed setting aside the order passed by the learned Additional District Judge cum Fast Track
Judge No. I, Madurai, on 08.09.2008 in I.A. No. 950 of 2008. No costs. Consequently, connected M.P. is closed.