Delhi High Court
Rajesh Kumar vs Harish Kumar & Another on 22 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 12th September, 2017
Decided on: 22nd September, 2017
+ CS(OS) 1786/2009
RAJESH KUMAR ..... Plaintiff
Represented by: Mr. Rajender Agarwal,
Advocate.
versus
HARISH KUMAR & ANOTHER ..... Defendants
Represented by: Mr.Fanish K. Jain, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
I.A. No. 9673/2017 (under Order XVI Rule 1A read with Section 151
CPC-by defendants)
1. By this application defendants pray that a handwriting expert be
permitted to take photographs of the signature of the plaintiff on the
documents exhibited as Ex. DW-1/1, DW-3/3 and DW-3/5 from the Court
record and compare the same with the admitted signatures of the plaintiff
from the court record in the presence of the parties before the Deputy
Registrar/Joint Registrar and also for directions to the plaintiff to give his
specimen signature/handwriting for comparison, directions to DW-3 Shri
Satish Malik, Clerk, Office of District Town Planner, Sonepat, Haryana to
produce the original records pertaining to Exhibit DW-3/3 and DW-3/5 and
directions to the handwriting expert to submit his report before the Court.
2. Plaintiff Rajesh Kumar has filed the present suit against the
defendants, that is, Harish Kumar and Rakesh Kumar seeking permanent
CS(OS) 1786/2009 Page 1 of 10
injunction, dissolution of the partnership firm M/s. HIFLY INDUSTRIES
and rendition of account.
3. In the plaint the claim of Rajesh Kumar is that M/s. HIFLY
INDUSTRIES was a partnership firm created vide Partnership Deed dated
18th October, 1993 and all the three persons, i.e. plaintiff and the two
defendants were entitled to 1/3rd share of the profit and loss. The partnership
was liable to dissolve by giving two months' notice in writing by any of the
partners to the other partners. After the death of Shri Narinder Kumar, father
of the plaintiff and defendants, differences arose between the parties with
regard to the joint properties situated at Ashok Vihar, Village Sahibabad
Daulatpur and Sadar Bazar. To sort out the differences, efforts were made
to mutually settle the division of the joint properties and at one point of time
a rough draft was also drawn for settling the joint assets, however, the draft
was later on abandoned, not acted upon and torn off, as the valuation done
was not in accordance with the market rates. It appears that Harish Kumar
and Rakesh Kumar retained copy of the draft unauthorisedly and started
misusing the same creating problems for Rajesh Kumar requiring him to file
the suit for partition and permanent injunction in respect of properties at
Ashok Vihar, Village Sahibabad Daulatpur and the two properties at Sadar
Bazar, Delhi being CS(OS) No. 44 of 2009 titled Shri Rajesh Kumar Vs.
Smt. Sheila Rani & Ors.
4. In the plaint it is further claimed that after filing of the suit Harish
Kumar and Rakesh Kumar prevented Rajesh Kumar from looking after the
business of the partnership firm M/s. HIFLY INDUSTRIES, thus Rajesh
Kumar gave a notice dated 9th June, 2009 to dissolve the firm after expiry of
two months. By way of the notice Rajesh Kumar dissolved the Partnership
CS(OS) 1786/2009 Page 2 of 10
Firm, called upon Harish Kumar and Rakesh Kumar to wind up the affairs
of the partnership and render true accounts of the firm within two months
from the date of receipt of the notice. Since Harish Kumar and Rakesh
Kumar neither complied with the terms of notice nor settled the matter,
Rajesh Kumar filed the present suit.
5. In the common written statement filed by both the defendants, the
pleas taken by Harish Kumar and Rakesh Kumar are that Rajesh Kumar has
concealed documents and an oral family settlement between the parties took
place on 30th March, 2008 which was reduced in writing on 2nd April, 2008
for the sake of remembrance in respect of all the movable and immovable
properties left behind by late Shri Narender Kumar as well as other joint
family businesses and properties of the parties including the partnership
business of M/s. HIFLY INDUSTRIES and the family settlement was duly
signed by all the parties including mother of the three parties before this
Court. The family settlement was partly acted upon also and Rajesh Kumar
received a some of ₹44,00,000/- pursuant to the family settlement which fact
has been concealed. Issues of lack of cause of action and territorial
jurisdiction were also raised in the written statement.
6. On 24th November, 2011 issues were settled. Issue Nos. 6 and 7
related to the oral family settlement dated 30th March, 2008 outlines of
which were recorded on 2nd April, 2008 and whether M/S Hifly Industries
came to the share of Harish Kumar and Rakesh Kumar. Since the onus to
prove these two issues was on Harish Kumar and Rakesh Kumar they relied
upon said document. After the issues were settled the two suits were
clubbed together.
CS(OS) 1786/2009 Page 3 of 10
7. Defendants Harish Kumar and Rakesh Kumar were directed to lead
the evidence in the first instance, who examined four witnesses including
DW-3 Satish Malik, Clerk Office of District Town Planner, Sonepat,
Haryana who produced the original records in respect of Ex. DW-3/3 and
Ex.DW-3/5, photocopies whereof were placed on record, whereafter Harish
Kumar and Rakesh Kumar filed the present application seeking directions as
noted above.
8. In support of the application, learned counsel for Harish Kumar and
Rakesh Kumar contends that since Rajesh Kumar is denying his handwriting
on the document Ex.DW-1/1 and signatures on Exhibit DW-3/3 and DW-
3/5, it is vital that opinion on the three documents regarding handwriting and
signatures of Rajesh Kumar are sought from the handwriting expert. It is
further contended that this Court has jurisdiction to direct Rajesh Kumar to
give his specimen handwriting besides the admitted ones and in case he fails
to do so an adverse inference is required to be drawn. Reliance is placed on
the decision reported as AIR 1975 AP 88 (1)M.Narayanaswami vs.
V.Yangatanna; 1986 Orissa 218 Shashi Bhusan Pati & Anr. Vs. State Bank
of India & Anr; AIR 1999 Gauhati 101 Shyam Sunder Chowkhani alias
Chandan and Ors. vs. Kajal Kanti Biswas and Ors.; AIR 1986 P&H 174
Sheo Narain & Anr. vs. Rawat and Ors.; and 2003 (3) CCC 532 ( P & H)
Abdul Sattar Vs. Bashir.
9. Countering the argument, learned counsel for the plaintiff submits that
having examined four witnesses, defendants did not name the handwriting
expert in the list of witnesses and the present application has been filed to
fill the lacuna in the case of defendants, hence the present application be
dismissed.
CS(OS) 1786/2009 Page 4 of 10
10. Document Ex. DW-1/1 photocopy whereof is on record and original
is in sealed cover notes three endorsements claimed by the defendants to be
in the handwriting of Rajesh Kumar which shows that pursuant to the oral
family settlement Rajesh Kumar accepted certain amounts by way of
cheque. Though Rajesh Kumar accepts signature on Ex. DW-1/1, however,
he denies the three endorsements in his handwriting. Further, Rajesh Kumar
also denies his signatures on Exhibits DW-3/3 and Ex. DW-3/5. One of the
modes to prove that the family settlement was acted upon is proof of
payment of amount to Rajesh Kumar. However, if the defendants so desire
to prove their case by showing that there were endorsements in the
handwriting of Rajesh Kumar on the oral family settlement Ex. DW-1/1
which fact was admitted vide documents Ex. DW-3/3 and Ex.DW-3/5 the
defendants would be within their right to prove the same by leading
evidence. The evidence of the defendants has not yet concluded hence it
cannot be held that the examining of the handwriting expert or re-
examination of DW-3 is just to fill up the lacunas. Dealing with similar
situation Andhra Pradesh High Court in the decision report as
M.Narayanaswami (supra) held
4. No doubt in para 2 of Section 73 of the Evidence Act
reference is made only to a person present in Court and it is to
enable the Court to compare a direction to write any words or
figures etc. may be given by it. But in the first paragraph of
Section 73 it is provided that 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 and in paragraph 8 it is
provided that the section applies to thumb impression also.
CS(OS) 1786/2009 Page 5 of 10
Therefore this provision enables a Court to compare signature
or writing or thumb impression in question with the one which
is to be proved or admitted to be of the person concerned. It is
provided under Section 45 of the Evidence Act that when the
Court has to form an opinion as to identity of handwriting or
finger impressions, the Court can obtain the opinion of an
expert. For obtaining the opinion of an expert certainly the
disputed and the undisputed things must be sent to him for the
purpose of comparison. As provided under the proviso to
Order 3, Rule 1 of the Code of Civil Procedure, a Court can
always order a party to appear in Court in person though it is
provided under the rule that appearance may be made or done
by the party in person or by recognised agent or by a pleader.
Therefore as provided under the proviso to Order 3, Rule 1
though a party is appearing by a recognised agent or by a
pleader in a case, the Court can always direct a party to
appear in Court in person when the need arises. When power
is given to a Court as provided under Section 78 of the
Evidence Act to compare any signature, writing or thumb
impression and for that purpose as provided under Section 45
of the Evidence Act it can take the assistance of an expert,
there is no reason why as provided under Order 3, Rule 1, C.
P. C. the Court cannot direct a party to appear in Court in
person and give his signature, handwriting or thumb
impression, as the case may be, to enable the Court to
compare the same with the disputed ones. Otherwise the
parties and the Court would be helpless if the admitted
signature, handwriting or thumb impressions are not available
otherwise. When the Court can direct a party present in Court
to write or give thumb impression for the purpose of
comparison and when he is not present there is no reason why
the court cannot direct the party to the present in Court for
that purpose by reason of the power given to it under the
proviso to Order 3, Rule 1, C. P. C.
5. In this connection, Sri Challa Sitaramayya, the learned
counsel for the respondent, has cited some decisions in
support of his contention opposing the power of the Court to
direct his client to be present in Court for the purpose of
giving his left hand thumb impression. In Appavoo Asary v.
Sornamal, AIR 1933 Mad 821 the question arose as to whether
the Court case give a direction under Order 3, Rule 1 C. P. C.
to a party to enable the opposite party to examine him as a
witness. In that connection, the Madras High Court said that
where one party desires the presence of the opposite party in
Court for the purpose of examining him as a witness, the
proper procedure to adopt is the one under Order 16 and not
the one under the proviso to Order 3, Rule 1 C. P. C. The
Court also observed that no Court of law would be justified in
ordering a party to appear in Court on an application filed
under Order 3 Rule 1 except for very good reasons. Therefore,
even according to this decision for good reason the Court can
always direct a party to appear in Court in person. Another
decision relied on by the learned counsel is State v.
Poonamchand, AIR 1958 Bom 207. In that case the
prosecution after examining some witnesses made an
application to secure the attendance of all the accused in
Court and then direct them to write over their signatures as
well as writings for the purpose of comparison. The trying
Magistrate allowed that application to take the specimen of the
handwriting of the accused in the Court for comparison and
then to seek a further report of the handwriting expert on that
point. Against the order of the Magistrate when a revision was
taken to the Sessions Judge, he recommended to the High
Court to set aside the order for the reason that the power to
take such evidence conferred by Section 73 of the Evidence Act
is now controlled by Article 20(3) of the Constitution and that
the second para of Section 73 of the Evidence Act also has no
application because it deals with cases of person present in
Court where the Court requires it for its own purpose to take
such writing etc. for the purpose of comparison. When the
matter was thus referred to the High Court, the Bombay High
Court agreed with that view. It is true paragraph 2 of Section
73 of the Evidence Act may not in terms apply. As already
discussed above, there are other provisions in Paragraph I of
Section 73 and Section 45 of the Evidence Act and Order 3,
Rule 1 C.P.C. which read together would certainly enable a
Court to direct a party to appear in Court in person for the
purpose of giving either thumb impression or writing or
signature for purpose of comparison. In the decision Ayyandan
v. Thanamal AIR 1920 Mad 213 it was held by the Madras
High Court that when to prove the defendants lunacy the
plaintiff applied to the Court for her personal appearance in
Court, Order 3, Rule 1 is wide enough to enable the Court to
direct any party to the suit to appear in person, whether he be
a minor or a major or of sound or unsound mind, and the
order may be made at any stage of the suit. When such an
order is given to the guardian of a lunatic or minor defendant,
it is in effect an order to the defendant to appear in person and
failure to comply with it will enable the Court to act under
Order 9, Rule 12, C. P. C.
6. Therefore, I am of the opinion that by reason of the
provisions contained in Sections 73 and 45 of the Evidence Act
and Order 3, Rule 1 C. P. C., the Court can direct a party to
be present in Court to give signature, handwriting or thumb
impression for the purpose of comparison either by itself or for
purpose of obtaining the opinion of an expert by sending the
same to him. Therefore the civil revision petition is allowed
and the application filed by the petitioner to direct the
respondent to be present in court and give his left hand thumb
impression is ordered. I direct the parries to Dear their
respective costs in this civil revision petition.
11. Similar view was expressed in the decision report as Sheo Narain
(supra) wherein it was held:
3. There can, thus, be no manner of doubt that the Court
was indeed empowered to call upon a party to give his
specimen thumb impressions and this request could not be
declined merely on the ground that it had been made by a
party to the litigation and could be used as evidence by such
party.
12. Even this Court in the decision reported as 2013 SCC Online Del
4106 Shobha Jolly v. Suraj S.J. Bahadur & Anr., issued directions for
examination of the admitted handwriting and signatures of the defendants
therein by the FSL.
13. Considering the nature of controversy between the parties and that
examination and comparison of the handwriting of Rajesh Kumar as noted
in Ex. DW-1/1, Ex. DW-3/3 and Ex.DW-3/5 is necessary for the just
decision of the case, following directions are issued:
i. Director FSL is directed to depute responsible officer to take
the photographs of the originals of Ex. DW-1/1, Ex. DW-3/3
and Ex. DW-3/5. The Director FSL will intimate in advance the
date and time when the officer of FSL can take the photographs
of the documents noted above and directions will be issued by
the Joint Registrar to DW-3 Satish Malik to be present in Court
along with originals of Ex. DW-3/3 and Ex. DW-3/5 so that
photographs thereof can be taken.
ii. The officer of the FSL will also take photographs of the
admitted signatures of Rajesh Kumar on the Vakalatnama,
affidavits and other documents filed in this Court.
iii. Rajesh Kumar would also give his specimen
signature/handwriting to the officer of FSL. After receiving the
specimen signature/handwriting of Rajesh Kumar and the
photograph from the originals of Ex. DW-1/1, Ex. DW-3/3 and
Ex. DW-3/5, Director, FSL will get the same examined and
submit the report to this Court within three months.
14. Harish Kumar and Rakesh Kumar would bear the entire expenses of
this exercise and the same will be conducted in the presence of the
concerned Joint Registrar.
15. I.A. No. 9673/2017 under Order XVI Rule 1A read with Section 151
CPC filed by defendants is disposed of.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 22, 2017
'yo'
