Chellammal vs Gopal
2021 Latest Caselaw 3020 Mad

                                                                                     C.R.P.No.1965 of 2020

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       Dated : 09.02.2021

                                                           CORAM

                                   THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                     C.R.P.No.1965 of 2020 and C.M.P.No.12221 of 2020
                                         Caveat Nos.7315 of 2019 and 1863 of 2020


                     1. Chellammal
                     2. Venkatesan
                     3. Sivaranjani                                      ... Petitioners


                                                                Vs.


                     1. Gopal
                     2. Ramalingam                                     ... Respondents



                               Civil Revision Petition is filed under Article 227 of the Constitution of

                     India to set aside the order dated 14.10.2019 in I.A.No.2 of 2019 in

                     A.S.No.100 of 2018 passed by the learned Additional District and Sessions

                     Judge (Fast Track Court), Villupuram and to allow the present Civil Revision

                     Petition.


                                              For Petitioners         : Mr.T.Sundaravadanam


                     1/15


https://www.mhc.tn.gov.in/judis/
                                                                                    C.R.P.No.1965 of 2020

                                             For Respondents          : Mr.V.R.Appaswamee

                                                          ORDER

The present Civil Revision Petition has been filed to set aside the

order dated 14.10.2019 in I.A.No.2 of 2019 in A.S.No.100 of 2019 passed

by the learned Additional District and Sessions Judge, Villupuram and to

allow this petition by raising various grounds.

2. The 1st respondent is the plaintiff in Original Suit. The petitioners

are the respondents 2, 3 and 4 in appeal suit in A.S.No.100 of 2018 and the

2nd respondent is the 1st respondent in the said Appeal suit. The case of the

petitioners is that the court below has dismissed the petition, viz., I.A.No.2

of 2019, which was filed seeking a direction to allow the petitioners' plea to

appoint an Advocate Commissioner for scientific examination of Exhibits

A.1 and B.16 by taking those original documents from the court to the

Hand-writing expert, Forensic Laboratory, D.G.P.Office, Santhome,

Chennai for the purpose of comparison of signatures of their father, namely,

Perumal found in Ex.B.16 to that of his disputed signatures found in Ex.A.1

and submit his report along with the report of the handwriting expert.

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3. The court below after considering the documents filed by the 1st

respondent/ plaintiff and the petitioners has stated that in Ex.A.1, the

petitioners' father has signed without initials and in Ex.B.16, it is seen that

he has signed with initials, viz., N.Perumal and came to the conclusion that

at times the petitioners' father is in the habit of signining with initials and at

times without initials. Hence Ex.B.16 was executed after the knowledge of

Ex.A.1 sale agreement and hence no reliance can be made supported.

Further, observing that the signature appears normal, the court below

dismissed the petition in I.A.No.2 of 2019, as against the same, the

petitioner is before this Court.

4. The learned counsel for the petitioners submitted that they have

taken out an application for appointment of advocate commissioner to prove

that the signature of their father, Perumal found in Ex.B.16 differs from the

signature found in Ex.A.1 and to enable the said advocate commissioner to

file a report to say that the said instrument alleged sale agreement dated

10.02.2006 , Ex.A.1 was not signed by his father and it is created forgedly

by the 1st respodent as if the said Perumal has executed agreement of sale

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in favour of one Gopal, who is the 1st respondent agreeing to sell the

agricultural lands.

5. The learned counsel for the petitioners further submitted that the

signature found in a sale agreement dated 10.02.2006 marked as Ex.A.1

and the signature found in written statement in O.S.No.1 of 2007 will prove

in bare eyes that the signature differs from its original signature which is

executed within one year time frame.

6. The learned counsel for the petitioners contend that the court

below has erred in dismissing the application mechanically without applying

the mind and the directions by the Hon'ble Apex Court in several cases if

the genuine case of fabricated signature is found at any point of time

pending dispute.

7. The learned counsel for the petitioners also contend that the court

below ought not to have dismissed the application on the ground that it is

filed belatedly at the stage of First Appeal and it is miscalculation that

fabricated instrument has been seen in the naked eye and came to a

conclusion that they cannot allow the said application and has to be set

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aside. He also submitted that the alleged sale agreement and payment

towards the sale agreement was not at all proved by the respondents in the

trial.

8. The learned counsel for the petitioners also submitted that only an

alternative prayer was allowed by the court below directing the petitioners to

return the money of Rs.1,00,000/- paid as alleged advance amount with

interest at 12% per annum, against which, the 1st respondent has preferred

A.S.No.5 of 2016 and the petitioners have filed A.S.100 of 2018.

9. The court below had considered the averments made in the plaint

wherein it is averred that in the alleged agrement of sale it is found that a

sum of Rs.1,00,000/- has been paid on 10.02.2006 and only Rs.20,000/-

has to be paid within a period of three months. The agrement contains the

usual clauses process and when the 1st respondent / plaintiff is ready and

willing to perform his part of contract and obtain the sale deed from the

defendants [petitioners' father and 2nd respondent] at his expense. The

plaintiff is always ready with the funds. The plaintiff has been calling upon

the defendants by tendering the balance amount to receive the balance of

sale consideration and to execute a sale deed at the cost of the plaintiff, but

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the defendants had executed the sale deed on the one text or the other.

10. The 1st respondent / plaintiff further submitted in the plaint that

after knowing well the payment of sale executed by the 1st defendant in his

favour had colluded with the 1st defendant and created a sale deed in his

favour in order to compel the plaintiff to convey his land. Further, plaintiff

caused a registered notice dated 22.04.2006 against the defendants and

they have sent a belated reply on 13.05.2006 which contained a untenable

allegations. Since the plaintiff prayed for alternative relief of recovery of

alternate amount of Rs.1,00,000/- with 12% interest, the defendants had

filed written statement and denied the execution of agreement of sale and

stated that they denied all the averments in the plaint and submitted that

they have not colluded with any person and created a sale deed in his

favour.

11. Contending contra, a written statement has been filed by the 1st

defendant [petitioners' father] wherein it is alleged that the readyness and

willingness of the plaintiff to pay the amount are false and he submitted that

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it is only forged agreement and sale. Plaintiff and his brother Venkatesan

are powerful person and they are always in the habit of touching othermen

property. The 1st dfendant have sold the 1st item of suit mentioned

property to the 2nd defendant for valid consideration. The 2nd defendant is in

active physical possession of the 1st item of suit schedule property and the

other items of suit schedule property are in 1st defendant [petitioners'

father] possession.

12. Further, in the written statement it is submitted that he never

received any pie from the plaintiff as per the alleged sale agreement or for

any other purpose whatsoever much less the sum of Rs.1,00,000/- as

advance and he never executed any agreement either on 10.02.2006 or any

other date. He further submitted that he never agreed to execute the sale

deed in favour of the plaintiff and also he is not liable to pay a sum of

Rs.1,00,000/- and prayed that the suit to be dismissed.

13. On going through the averments in the petition it is seen that

originally suit was filed for specific performance directing the defendants /

petitioners' father and 2nd respondent, to execute a registered sale deed in

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respect of the suit schedule property in respect of the plaintiff within a

stipulated time after receiving the balance of the sale consideration of

Rs.20,000/- and directing the 1st defendant [petitioners' father] to pay a

sum of Rs.1,00,000/- with interest at the rate of 12% per annum from the

date of plaint till discharge with a charge on the suit property.

14. The court below after considering both the parties allegations and

averments had come to a conclusion that the plaintiff is not entitled to a

relief of specific performance and delivery of possession and he is entitled

to relief of alternative prayer directing the defendants 3 to 5, legal heirs of

the 1st defendant to pay a sum of Rs.1,00,000/- with interest at the rate of

12% per annum from the date of claim till the date of realisation. As the 1st

defendant died at the time when the suit was pending, the legal heirs of the

said defendant had to put charge on the suit property and the suit was

dismissed in respect of relief of specific performance and delivery of

possession. Aggrieved by the said Judgment and Decree, A.S.No.5 of

2016 was filed by the 1st respondent and since the 1st defendant died, the

legal heirs of the said 1st defendant / petitioners have filed A.S.No.100 of

2018. At the time when the said appeals are pending, I.A.No.2 of 2019 was

filed by the petitioners, [legal heirs of the 1st defendant] to appoint an

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advocate commissioner to submit the originals and documents, Ex.A.1 and

B.16 to be sent to the Handwriting Expert, Forensic laboratory situtated at

D.G.P.Office, Santhome, Chennai for comparison of the signatures found in

Ex.B.16 and submit his report.

15. Resisting the same, a counter was filed by the 1st respondent /

plaintiff submitting that the 2nd defendant, who is a purchaser namely, the

2nd respondent is in unlawful possession of the properties and the others

are colluding together only to protract the proceedings. He also submitted

that earlier, the petitioners have filed an application in I.A.No.240 of 2018 for

stay of the Decreeand at that time they have not chosen to file any

application to compare the signature. At this belated time, after the said

findings made by the court below that there is no dispute regarding the

agreement which is true and valid, the petitioners have filed the petition only

to drag on the proceedings. He further submitted that the Ex.A.1 cannot be

compared with Ex.B.16, which has been executed after the execution of the

present agreement of sale, which is six months after execution of the sale

and he submits that the document to be compared only in the same period

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and subsequent documents cannot be compared. He also found that the

1st defendant is in the habit of signing in tamil at time with initial and at time

without initial and he has very good knowledge of execution of Ex.A.1 and

the court cannot come to a conclusion that there are no initials in the

documents, which was signed subsequently.

16. The court below after considering the pleadings had come to the

conclusion that the document Ex.B.16 has been executed after 10 months

after signing the agreement of sale. The documents which are signed prior

to the agreement of sale has not been produced for comparison. The court

below has also come to the conclusion that in the signature, the father could

have signed differently only to decode the plaintiff, he could have signed the

same and accordingly the signature of the subsequent document cannot be

accepted. He also submitted that by comparing the said signatures on

naked eye, both the signatures are found to be similar and the court below

has rightly held that the said perumal was in the habit of signing with initial

and without initial and hence the court also has taken into account the

petitioners have not taken out the application at earlier point of time and now

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at this stage, theapplication cannot be considered and dismissed the said

application.

17. At this juncture, the counsel for the petitioners submits that the

petitioners are ready and willing to produce any document, which is prior to

the document executed before the year 2006 and prayed this Court to allow

the same. Further, in support of his contention, he has relied on the order

passed by this Court in [D.Janaki Vs. S.Jayalakshmi] C.R.P.No.3667 of

2011 and M.P.No.1 of 2011 dated 09.01.2012.

18. Considering the facts and circumstances of the case and taking

note of the pleadings and counter pleadings on either side and the order

referred supra, at this point of time, this Court is not in a position to

comment on the same, however, the petitioners ought to have produced the

documents at the first chance itself and they cannot come and canvass the

same before this Court at present. On going through the said documents,

which has been filed in support of the petition, it is seen that the petitioners'

father used to sign in a different way, however it can be compared to the

subsequent document, sale deed dated 06.12.2006.

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19. It is also the further case of the petititoners that to compare the

alleged signature in the agreement of sale, Ex.A.1 with Ex.B.16, which is

totally different, he needs the help of a expert to prove that this alleged

agreement of sale was a fabricated document. On hearing the learned

counsel on either side, it is seen that the said documents are wantonly

written and there is a likely hood of the petitioners' father signing the

document differently and the petitioners could have filed this petition at the

earlier point of time. There is some force in the submission of the

respondents' counsel that the documents which are executed after the said

execution of sale cannot be accepted for comparison.

20. On going through the documents placed on record it is seen that

originally, the suit was filed in the year 2007 and Ex.B.16, alleged document

has been executed on 6.12.2006 and the alleged deed of agreement of sale,

A.1 was executed on 15.02.2006. In the said alleged document, in Twenty

Ruppees stamp paper, the number in the left side corner, it is written as

188/15.02.2006 and it seems that it is not 10.02.2006 and it looks like

15.02.2006 and the said signature has been found to be slightly different

from the documents registered after the alleged said sale deed. In the

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interest of justice, fairplay, it would be appropriate for this Court to restore

I.A.No.2 of 2019 on the file of learned Additional District and Sessions

Judge (Fast Track Court), Villupuram to appoint Advocate Commissioner.

The said court shall direct the Forensic Expert to complete the examination

of the signature within fourteen days from the date of depositing the same

by the Advocate Commissioner. After receiving the report from the

handwriting expert, the court below is directed to continue the said trial and

complete the same within a period of six months thereafter. The

remuneration for the Advocate Commissioner shall be borne by the

petitioners.

In fine, the present Civil Revision Petition is allowed and order passed

in I.A.No.2 of 2019 in A.S.No.100 of 2018 dated 14.10.2019 is set aside

and the said I.A. is restored to file of the court below. Consequently,

connected miscellaneous petition and Caveat Petitions are closed. No

costs.

09.02.2021

Index : Yes/No Internet : Yes/No

https://www.mhc.tn.gov.in/judis/ C.R.P.No.1965 of 2020

Speaking /Non-Speaking Order

ssd

To

1. The Additional District and Sessions Judge (Fast Track Court), Villupuram

2. The Hand Writing Expert, Forensic Laboratory, D.G.P.Office, Santhome, Chennai

3. The Section Officer, V.R.Section, High Court, Madras

V.BHAVANI SUBBAROYAN, J.,

ssd

https://www.mhc.tn.gov.in/judis/ C.R.P.No.1965 of 2020

C.R.P.No.1965 of 2020 and C.M.P.No.12221 of 2020 Caveat Nos.7315 of 2019 and 1863 of 2020

09.02.2021

https://www.mhc.tn.gov.in/judis/