HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.2012 OF 2023
ORDER:
Heard Mr. Vemparala Aditya, learned counsel representing Mr. Madiraju Prabhakara Rao, learned counsel for the petitioner and Mr. N.V. Anantha Krishna, learned counsel for the respondent.
2. This revision is filed under Article - 227 of the Constitution of India challenging the order dated 27.03.2023 in I.A. No.2 of 2023 in O.S. No.121 of 2016 passed by learned I Additional District Judge, Khammam.
3. Respondent - Plaintiff filed a suit vide O.S. No.121 of 2016 against the petitioner - defendant for specific performance of agreement of sale 18.03.2016. During pendency of the said suit, when it is posted for arguments, the petitioner herein - defendant filed I.A. No.2 of 2023 under Section - 45 of the Indian Evidence Act, 1872 read with Order - XXVI, Rule - 10A of the Code of Civil Procedure, 1908, to send Ex.A1 - agreement of sale dated 18.03.2016 to the hand- writing expert to compare the signatures of the petitioner herein - defendant on the alleged agreement of sale with his admitted 2 KL, J CRP No.2012 of 2023 signatures/specimen signatures for giving his opinion as to its genuineness for proper adjudication of the matter.
4. The petitioner herein - defendant filed the said I.A. on the following grounds:
(i) She never executed the suit agreement of sale dated 18.03.2016;
(ii) Her signature was forged by the respondent herein - plaintiff on the said agreement of sale to knock away the suit schedule property;
(iii) In the written statement itself, she has specifically contended that she never entered into the subject agreement of sale with the respondent herein - plaintiff to sell the suit schedule property;
(iv) During cross-examination, PW.1 (plaintiff) stated that she has no objection to send the said agreement of sale for expert's opinion for comparison of her signature;
(v) Strict proof of genuineness of the said agreement of sale is required in order to prove that no reasonable doubt shall remain; 3
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(vi) No prejudice would be caused to the respondent herein -
plaintiff.
5. The aforesaid application was opposed by the respondent herein - plaintiff on the following grounds:
(i) Though the petitioner - defendant pleaded in her written statement filed on 20.07.2017 that her signature was forged, she did not take any steps to file an application to send the signatures on the agreement of sale to the expert immediately;
(ii) Even during cross-examination of PW.1 on 31.08.2021, the plaintiff expressed her no-objection for sending Ex.A1 for comparison of signatures. Even then, the petitioner herein did not choose to file the aforesaid petition. Thus, there is delay in filing the aforesaid petition;
(iii) For the last one year, the petitioner herein filed several petitions to drag on the proceedings;
(iv) In Ex.A1 - agreement of sale, dated 18.03.2016, the petitioner herein - defendant signed on five (05) stamp papers and, therefore, the Court below has power to compare the signatures 4 KL, J CRP No.2012 of 2023 with available admitted signatures on record and to come to a conclusion, which is also permissible; and
(v) The suit is of the year 2016. When the matter is posted for arguments on 13.02.2023, the defendant filed the aforesaid petition only to drag on the proceedings.
6. Vide order dated 27.03.2023, the Court below dismissed the said petition on the following grounds:
i) Cross-examination of plaintiff (PW.1) was recorded on 31.08.2021. The plaintiff's side evidence was closed on 21.09.2021 and the defendant was examined in-chief on 16.12.2022;
ii) The defendant did not choose to file any petition. She took nearly two months time for facing cross-examination;
iii) When the matter was posted for arguments, she filed the aforesaid petition;
iv) No two signatures of an individual are identical in every detail since variation is integral part of natural writing; 5
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v) Signatures on Ex.A1 are dated 18.03.2016, and the aforesaid petition was filed in the year 2023. There is a long gap of seven (07) years; and
vi) Perusal of signatures of the defendant on served summons, written statement and Vakalat, the Court below found no such variation that differs from the signatures on Ex.A1.
7. Mr. Vemparala Aditya, learned counsel for the petitioner - defendant, vehemently contended that there is no delay in filing the application., by contending in the written statement that her signature was forged, she laid the foundation for filing the aforesaid application under Section - 45 of the Evidence Act. Even PW.1 during cross- examination admitted that she has no objection for sending her signature for expert's opinion. The trial Court failed to consider the object of expert opinion in terms of Section - 45 of the Evidence Act. He has also placed reliance on the judgment in Gulam Ghouse v. Madarse Jeelania Shama-Ul-Uloom Education Society 1.
8. On the other hand, Mr. N.V. Anantha Krishna, learned counsel for the respondent - plaintiff, would submit that the trial Court considered all the aspects including delay and object of expert opinion 1 . 2007 (4) ALD 435 6 KL, J CRP No.2012 of 2023 and dismissed the petition filed by the petitioner vide impugned order dated 27.03.2023. There is no error in it.
9. In view of the aforesaid rival submissions and perusal of record would reveal that the respondent - plaintiff filed the aforesaid suit for specific performance of agreement of sale dated 18.03.2016. The petitioner herein - defendant filed her written statement on 20.07.2017 specifically contending that she never executed the said agreement of sale dated 18.03.2016, her signature was forged and agreement of sale was created for the purpose of filing the aforesaid suit by plaintiff in collusion with her husband to knock away the property belongs to the defendant. The plaintiff was examined as PW.1. During cross-examination, she has categorically admitted that she has no objection for sending Ex.A1 to expert opinion for comparison of signature of the defendant.
10. It is relevant to note that the said cross-examination of PW.1 was recorded on 31.08.2021. However, the petitioner - defendant filed I.A.No.2 of 2023 on 15.02.2023. There is no doubt that there is delay in filing the said petition. But, as discussed above, the petitioner - defendant by specifically contending in her written 7 KL, J CRP No.2012 of 2023 statement that her signature was forged on the agreement of sale dated 18.03.2016 by the plaintiff in collusion with her husband laid foundation for filing the aforesaid petition. There is no dispute that the trial Court has power to compare the signatures of the party. At the same time, the object of Section - 45 of the Evidence Act i.e., expert opinion has to be considered by the trial Court.
11. It is relevant to extract Sections - 45 and 73 of the Evidence Act and the same are as under:
"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 identity of handwriting 2 [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, 3 [or in questions as to identity of handwriting] 2 [or finger impressions] are relevant facts. Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
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KL, J CRP No.2012 of 2023 The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant."
"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.
This section applies also, with any necessary modifications, to finger-impressions." 9
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12. Section 45 of the Act, 1872, inter alia, provides that the Court can call for evidence of experts to form an opinion regarding the genuineness of signatures and handwriting which are relied on by one party and disputed by another party. It is also relevant to note that the power to seek expert opinion under Section 45 of the Act, 1872 is discretionary and depends on facts of each case. The Courts under Section 73 of the Act, 1872 can themselves compare the signatures or handwriting. However, the Supreme Court has time and again cautioned that Courts cannot act as experts in all the cases. Unless it is glaringly clear that the signatures are same or are different, the Courts should normally call for an opinion from the experts.
13. In State (Delhi Admn.) v. Pali Ram 2, the Hon'ble Supreme Court held that prudence requires that a judge shall obtain expert opinion in the matters of comparison of handwriting. The relevant paragraph is extracted below:
"30. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the 2 . (1979) 2 SCC 158 10 KL, J CRP No.2012 of 2023 Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet- anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing 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."
14. In Ajit Savant Majagvai v. State of Karnataka 3, the Apex Court held that where there is even slightest of doubt in the minds of the judge while comparing the admitted and disputed signatures, such signatures shall be sent for expert opinion under Section 45 of the Act, 1872. The relevant paragraphs are extracted below:
"37. This section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any 3 . (1997) 7 SCC 110 11 KL, J CRP No.2012 of 2023 person including an accused, present in Court, to give his specimen writing or fingerprints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.
38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See: State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 :
AIR 1979 SC 14]."
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15. In Thiruvengadam Pillai v. Navaneethammal 4, the Apex Court observed that it is risky to arrive at a conclusion regarding signatures and handwriting without an expert opinion. The relevant paragraph is extracted below:
"16. While there is no doubt that Court can compare the disputed handwriting/ signature/ finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that 4 . (2008) 4 SCC 530 13 KL, J CRP No.2012 of 2023 the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the Court is in a position to identify the characteristics of fingerprints, the Court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal."
16. In Ajay Kumar Parmar v. State of Rajasthan 5, the Apex Court held that, the Courts while dealing with handwriting or signatures cannot itself act as an Expert. The relevant paragraph is extracted below:
"28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing 5 . (2012) 12 SCC 406 14 KL, J CRP No.2012 of 2023 the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the Court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision."
17. Therefore, by perusing the dicta in the above decisions it can be said that the Courts shall normally seek expert opinion when they are posed with a situation where they have to compare admitted and disputed signatures. The Courts can refuse expert opinion only when no doubt exists regarding the genuineness of the signatures after comparison of the admitted and disputed signatures. In cases where even a slightest doubt exists, the Courts shall send the admitted and 15 KL, J CRP No.2012 of 2023 disputed signatures for expert opinion under Section 45 of the Act, 1872.
18. In the light of the aforesaid discussion, coming to the facts of the present case, as discussed above, the petitioner herein - defendant laid foundation by contending in the written statement that her signature was forged. Even the respondent - plaintiff (PW.1) during her cross-examination stated that she has no objection in sending Ex.A1 - agreement of sale dated 18.03.2016 to the expert opinion. Thus, though there is delay in filing the application, the object and purport of Section - 45 of the Evidence Act is to be considered by the trial Court and this Court. When there is specific denial by the petitioner - defendant that her signature was forged, it is not safe for the trial Court to come to a conclusion that it has perused the signature of the defendant on the agreement of sale dated 18.03.2016 with that of signatures of the defendant on served summons, written statement and Vakalat. The said finding is contrary to the object and purport of Section - 45 of the Evidence Act. The said principle was also reiterated by this Court in Katike Bheem 16 KL, J CRP No.2012 of 2023 Shankar v. Mrs. T. Laxmi @ Punyavathi 6. As rightly contended by learned counsel for the petitioner that no prejudice would be caused to the respondent - plaintiff in obtaining expert opinion by sending Ex.A1 - agreement of sale dated 18.03.2016.
19. In the light of the aforesaid discussion, the impugned order dated 27.03.2023 in I.A. No.2 of 2023 in O.S. No.121 of 2016 passed by learned I Additional District Judge, Khammam is set aside, and I.A. No.2 of 2023 is accordingly allowed. The trial Court shall send Ex.A1 - agreement of sale dated 18.03.2016 to the hand-writing expert to compare the signatures of the defendant on Ex.A1 - agreement of sale with the admitted signatures of defendant for giving opinion as to its genuineness for proper adjudication of the matter.
20. The suit is of the year 2016 and it is posted for arguments. In the light of the same, the trial Court shall make an endeavour to dispose of the suit strictly in accordance with law as expeditiously as possible.
21. The present Civil Revision Petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs. 6 . C.R.P. No.1939 of 2022, decided on 20.12.2022 17 KL, J CRP No.2012 of 2023 As a sequel, miscellaneous petitions, if any, pending in the revision shall stand closed.
_________________ K. LAKSHMAN, J 22nd September, 2023 Mgr