Narvir Singh vs Prag Raj and others

Rajiv Sharma, Judge

This petition is directed against the order dated 05.08.2008, passed by the learned Civil Judge (Junior Division), Solan, H.P. in Civil Suit No. 461/1 of 04/2001, titled Narvir Singh Vs. Prag Raj & others.

Material facts necessary for the adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as "the plaintiff" for convenience sake) moved an application u/s 151 of the CPC for sending the receipt dated 16.12.1992 to the Government Examiner of Questioned Documents in order to verify the signatures of Shri K.L. Gupta, Advocate on the receipt by way of additional evidence.

The application was contested by the respondents-defendants (hereinafter referred to as ''the defendants" for brevity sake). Learned trial Court dismissed the application on 05.08.2008.

Mr. Dushyant Dadhwal, Learned Counsel for the petitioner has vehemently argued that learned trial Court has failed to exercise the jurisdiction vested in it and decided the application without due application of mind.

I have heard the Learned Counsel for the parties and gone through the order dated 05.08.2008 carefully.

Petitioner has moved an application for examining the signatures of Shri K.L. Gupta, Advocate on the receipt by way of additional evidence. According to the petitioner, the defendants have denied the signatures of Shri K.L. Gupta, Advocate on the receipt. It is averred in the application that Shri K.L. Gupta, Advocate was practicing as an Advocate at Solan Courts and there were so many plaints, written statements and Vakalatnamas etc. which have been signed by him in different cases. He has also prayed for requisitioning the records of Civil Suit No. 322/21 of 1989, titled Gurvinder Singh Vs. Bhupinder Singh. According to the petitioner, in execution petition, there were original and admitted signatures of Shri K.L. Gupta, Advocate on the power of attorney. It is in these circumstances, the application was filed to send the signatures of Shri K.L. Gupta for comparison to the Government Examiner of Questioned Documents after requisitioning the file of case No. 322/21 of 1989.

The defendants have contested the application. According to them, the petitioner had already been granted numerous opportunities at the time of producing the evidence. However, he has not produced any rebuttal evidence. It is further alleged that the application was moved with an intention to delay the matter. Statements of two DWs. were recorded on 26.12.2006 and thereafter defendants No.1 and 2 have closed their evidence. The matter was directed to be listed for rebuttal evidence on 03.03.2007. Plaintiff prayed further time for rebuttal evidence, which was allowed and the matter was directed to be listed for rebuttal evidence on 06.03.2007. On 06.03.2007, no evidence in rebuttal was led, however, Learned Counsel for the plaintiff has stated that an application for proving the signature was to be filed. The time was allowed and the matter was directed to be listed on 07.05.2007. One more opportunity was granted to the plaintiff on 07.05.2007 and the matter was directed to be listed on 10.05.2007. On 10.05.2007, the matter was directed to be listed for arguments on 16.06.2007.

However, fact of the matter is that two applications were filed. One for requisitioning of the case file of Civil Suit No. 322/21 of 1989, titled Gurvinder Singh Vs. Bhupinder Singh and the second for sending the signatures of Sh. K.L. Gupta, Advocate for comparison to the Government Examiner of Questioned Documents. On 03.06.2008, learned trial court fixed the application for arguments on 21.06.2008. The arguments were heard on 21.06.2008 and the impugned order was pronounced by the learned trial court on 05.08.2008. It is evident from the orders passed by the learned trial court that the plaintiff has been given many opportunities to lead evidence in rebuttal. The case was listed for final hearing on 16.06.2007. The applications have been preferred by the petitioner only at the stage of arguments. Learned trial court has come to the right conclusion that the plaintiff could also get the signatures of Shri K.L. Gupta, Advocate compared from a private expert. The evidence of the parties was already recorded and no evidence in rebuttal has been led by the plaintiff.

It is settled law by now that the Courts itself can compare the signatures and its authenticity can be looked into.

Their Lordships of the Hon''ble Supreme Court in Murarilal versus State of M.P., AIR 1980 SC 531 have held that there may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being unable to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. Their Lordships have further held that the duty cannot be avoided by recourse to the statement that the court is not expert. Their Lordships have held as under:

We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.

The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court''s own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakhruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.

Their Lordships of the Hon''ble Supreme Court in Lalit Popli versus Canara Bank and others, AIR 2003 SC 1795 have held that the Court has power to compare the writings and decide the matter. Their Lordships have further held that irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. According to their Lordships, such exercise of comparison is permissible u/s 73 of the Evidence Act. Their Lordships have held as under:

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 u/s 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 disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible u/s 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of 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 experts'' evidence is not there. Court has power to compare the writings and decide the matter. [See 1980 CriLJ 396 (SC)

Learned Single Judge of the Andhra Pradesh High Court in J.L. Babu versus S. Gowri Shankar and another, AIR 2009 AP 2003 has held that the Court itself is conferred with the power u/s 73 of the Evidence Act to undertake comparison itself. Learned Single Judge has held as under:

The burden to prove the agreement of sale and receipts relied upon the petitioner, squarely rests upon him. The respondents no doubt have denied the execution of the documents. That denial would only lead to framing of an issue, touching upon the same. Sending of a document u/s 45 of the Act, for opinion of an expert, is a step in the direction of proof. The exercise as regards proof of the document would only start with the commencement of trial. The C.P.C., as well as the Evidence Act enshrine the principles, that are relevant in this regard, touching upon the burden, adducing evidence etc. When the burden squarely rests upon the petitioner to prove the documents relied upon by him, it could, not at all be the genuine concern of the respondents, to initiate steps for disproving it.

Another aspect of the matter is that, the Court itself is conferred with the power u/s 73 of the Act to undertake comparison, by itself. If the features of writing and signature on the documents are so glaring, that the Court can form an opinion by itself either way, further exercise u/s 45 of the Act, may virtually become unnecessary or futile. Therefore, the order passed by the trial Court allowing an application u/s 45 of the Act, which was filed even before the trial commenced, cannot be sustained either in law, or on facts.

In view of the observations and discussions made hereinabove, there is neither any jurisdictional error nor any illegality in the order dated 05.08.2008, passed by the learned Civil Judge (Junior Division), Solan. Accordingly, there is no merit in this petition and the same is dismissed. The adinterim order dated 29.09.2008 is vacated. The miscellaneous application(s), if any, also stands disposed of. No costs.