Madras High Court
Maragathamanickam vs P.Thavamani on 19 November, 2021
C.R.P.(PD).Nos.3877 & 3878 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).Nos.3877 & 3878 of 2016
and
C.M.P.No.19725 of 2016
Maragathamanickam .. Petitioner
(in both cases)
Vs.
1.P.Thavamani
2.P.Vanitha
3.P.Kalpana
4.Bagiyalakshmi
5.Ramaraj .. Respondents
(in both cases)
Prayer: These Civil Revision Petitions are filed under Section 115 of C.P.C.,
against the fair and decretal orders dated 13.10.2015 passed in I.A.Nos.24 &
25 of 2015 in A.S.No.8 of 2014 on the file of the Sub Court, Pollachi.
In both cases:
For Petitioner : Mr.R.Kannan
For RR 1 to 3 : Mr.L.Mouli
For RR 4 & 5 : Mr.C.Veeraraghavan
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C.R.P.(PD).Nos.3877 & 3878 of 2016
COMMON ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
These Civil Revision Petitions are filed against the fair and decretal
orders dated 13.10.2015 passed in I.A.Nos.24 & 25 of 2015 in A.S.No.8 of
2014 on the file of the Sub Court, Pollachi.
2.The issues involved in both the Civil Revision Petitions are one and
the same and hence, these Civil Revision Petitions are disposed of by this
common order.
3.The petitioner is the plaintiff in O.S.No.65 of 2004 on the file of the
District Munsif Court, Pollachi and appellant in A.S.No.8 of 2014 on the file
of the Sub Court, Pollachi. The petitioner filed the said suit against the
respondents for specific performance of agreement of sale dated 25.06.1991
executed by deceased R.Palanisamy, husband of respondents 1 & 4 and father
of respondents 2, 3 & 5. The said suit was dismissed by the judgment and
decree dated 19.12.2013. Against the said judgment and decree, the petitioner
filed First Appeal in A.S.No.8 of 2014. Pending First Appeal, the petitioner
filed the present two applications, I.A.No.24 of 2015 to send the register
maintained by the Sub-Registrar Office, Pollachi dated 14.10.1988 in Book
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C.R.P.(PD).Nos.3877 & 3878 of 2016
No.4, Document No.91/1988 along with disputed signature and I.A.No.25 of
2015 to call for the register maintained by the Sub-Registrar Office, Pollachi
dated 14.10.1988 in Book No.4, Document No.91/1988.
4.According to the petitioner, the deceased R.Palanisamy entered into
agreement of sale dated 25.06.1991 with her to sell his suit property. He made
endorsements with agreement of sale dated 25.06.1991, on 20.09.1991,
15.06.1992, 17.10.1992, 31.07.1993 and 26.10.1993, which were marked as
Exs.A1, A7 to A11 respectively. The deceased R.Palanisamy issued receipt to
the petitioner on the date of agreement of sale, which was marked as Ex.A2.
The respondents have denied the execution portion of agreement of sale by
the deceased R.Palanisamy, Ex.A2 / receipt and also other endorsements in
Exs.A7 to A11. According to petitioner, the Trial Court dismissed the suit on
the ground that petitioner has not taken any steps to obtain expert opinion
with regard to genuineness of Exs.A1, A2, A7 to A11. The learned Trial
Judge has erroneously fixed burden on the petitioner to prove the genuineness
of signature in Ex.A1, instead of placing the burden on the respondents to
prove that signature is not genuine. The deceased R.Palanisamy and his
brother Srinivasan borrowed a sum of Rs.20,000/- from the petitioner on
14.10.1988 and executed promissory note, which was registered on the same
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C.R.P.(PD).Nos.3877 & 3878 of 2016
day before the Sub-Registrar Office, Pollachi and the petitioner has come out
with the present two applications for the relief stated above.
5.The respondents 1 to 3 filed counter affidavits in both the
applications and denied the execution of agreement of sale as well as receipt
and other endorsements. They also denied the fact that the deceased
R.Palanisamy and his brother Srinivasan borrowed money and executed the
document. The document now sought to be compared with agreement of sale
and other documents are not of contemporary period, the same cannot be
compared with and cannot get opinion from the hand writing expert and
prayed for dismissal of both the applications.
6.The learned Judge considering the averments in the affidavit and
counter affidavit, dismissed both the applications holding that the documents
now sought for comparison are not of contemporary period and expert will
not give opinion, unless admitted signature in a document of contemporary
period is produced.
7.Against the said orders of dismissal dated 13.10.2015 passed in
I.A.Nos.24 & 25 of 2015, the petitioner has come out with the present Civil
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C.R.P.(PD).Nos.3877 & 3878 of 2016
Revision Petitions.
8.The learned counsel appearing for the petitioner contended that the
learned Judge ought to have considered the application in I.A.No.24 of 2015
for sending the disputed signature of the deceased R.Palanisamy with his
admitted signature for expert opinion independently and ought not to have
dismissed the application in I.A.No.24 of 2015 in view of the dismissal of
I.A.No.25 of 2015. The learned Judge ought to have allowed the application
in I.A.No.24 of 2015 as the burden is entirely on the respondents to prove
that the signature in the said documents are not that of the deceased
R.Palanisamy by producing admitted signatures. The Lower Court has failed
to see that in a suit for specific performance of an agreement of sale dated
25.06.1991 / Ex.A1, the burden of proof as it is forged one lies only on the
person, who denies it as per law. The respondents / defendants who disputed
the signature, ought to have produced the admitted signatures of the
deceased, which were under their custody. The learned Judge ought to have
allowed the applications, called for the document in the interest of justice and
prayed for allowing the Civil Revision Petitions.
9.The learned counsel appearing for the respondents 1 to 3 and 4 & 5
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C.R.P.(PD).Nos.3877 & 3878 of 2016
separately submitted that the petitioner has not produced any document
containing the signature of the deceased R.Palanisamy of contemporary
period. The petitioner filed the present applications only to protract the
appeal filed by her and the learned Judge considered the entire materials and
rightly dismissed both the applications. There is no error in the order of the
learned Judge and prayed for dismissal of both the Civil Revision Petitions.
10.Heard the learned counsel appearing for the petitioner as well as the
learned counsel appearing for the respondents and perused the entire
materials on record.
11.From the materials on record, it is seen that the petitioner filed suit
in O.S.No.65 of 2004 for specific performance of agreement of sale dated
25.06.1991 executed by deceased R.Palanisamy and the endorsement made
therein against the respondents, who are the legal heirs of the deceased
R.Palanisamy. The respondents denied that deceased R.Palanisamy executed
agreement of sale and endorsements therein. They also denied the signatures
found in the said document are forged one. After trial, the suit was dismissed
by the judgment and decree dated 19.12.2013. Thereafter the petitioner filed
First Appeal in A.S.No.8 of 2014 challenging the judgment and decree dated
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C.R.P.(PD).Nos.3877 & 3878 of 2016
19.12.2013 passed in O.S.No.65 of 2004 on the file of the District Munsif
Court, Pollachi. In the First Appeal, the petitioner filed application in
I.A.No.24 of 2015 to send the disputed signature and admitted signature in
the Register called for from the Sub-Registrar Office, Pollachi for expert
opinion. She also filed I.A.No.25 of 2015 to call for the Register maintained
in the Sub-Registrar Office, Pollachi dated 14.10.1988 in Book No.4,
Document No.91/1988. According to the petitioner, even though the burden
is on the respondents to prove that signature in the agreement of sale and
endorsements are forged one, the learned Judge erroneously placed the
burden on the petitioner. The petitioner in the application contended that the
deceased R.Palanisamy and his brother Srinivasan borrowed a sum of
Rs.20,000/- from the petitioner and executed a promissory note on
14.10.1988, which was registered on the file of the Sub-Registrar Office,
Pollachi on the same day. It is the further case of the petitioner that the
Register maintained by the Sub-Registrar Office, Pollachi contains admitted
signature of the deceased R.Palanisamy, it must be called for and sent along
with disputed signature to get opinion from the expert. The respondents are
not only disputing the execution of agreement of sale, but also disputing the
alleged endorsements made by the deceased R.Palanisamy and also disputing
the execution of promissory note by the deceased R.Palanisamy. The
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C.R.P.(PD).Nos.3877 & 3878 of 2016
respondents also took a stand that the promissory note is not a document of
contemporary period and therefore, it cannot be relied on to compare with the
disputed signature.
12.From the materials on record, it is seen that the alleged agreement of
sale is dated 25.06.1991. There are five endorsements in the agreement of
sale alleged to have been made by deceased R.Palanisamy. Only the first
endorsement is on 20.09.1991, which is within three years of execution of
promissory note dated 14.10.1988. All other endorsements are beyond three
years. It is well settled that admitted signature in a contemporary period
means within three years of disputed signature. In the present case, except
Ex.A1 / agreement of sale, Ex.A2 / receipts and Ex.A7 / first endorsement
made in Ex.A1 on 20.09.1991, all other documents viz., Exs.A8 to A11
containing the signature of deceased R.Palanisamy are beyond the period of
three years. When the disputed signature is beyond the period of three years
than the admitted signature, the handwriting expert will not consider the same
and give his opinion. Further, the respondents are denying the execution of
promissory note and they are not admitting the signature in the promissory
note dated 14.10.1988 as that of the deceased R.Palanisamy. In an appeal,
additional evidence viz., both oral and documentary can be permitted to let in
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C.R.P.(PD).Nos.3877 & 3878 of 2016
only if party seeking to let in additional evidence satisfies the provisions of
Order XLI Rule 27 of the Code of Civil Procedure. The said provision reads
as follows:
“Rule 27 of Order XLI of the Code of Civil Procedure:
27. Production of additional evidence in Appellate Court:-
(1) The parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was not within
his knowledge or could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any
witness to be examined to enable it to pronounce judgment, or for any other
substantial cause,
the Appellate Court may allow such evidence or document to be produced, or
witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission.”
As per Order XLI Rule 27 (a) & (aa), additional evidence can be
permitted only when the party proves that in spite of his due diligence, he was
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C.R.P.(PD).Nos.3877 & 3878 of 2016
not aware of said document and inspite of due diligence, he could not
produce the same before the Trial Court. In the present case, the petitioner is
seeking to call for the Register that contains the signature of the deceased
R.Palanisamy in the promissory note dated 14.10.1988 to prove that
signatures in the disputed document are not genuine.
13.According to the petitioner, the deceased R.Palanisamy and his
brother borrowed a sum of Rs.20,000/- from her, executed a promissory note
dated 14.10.1988 and registered the same on the file of the Sub-Registrar
Office, Pollachi on the same day. In that case, the petitioner is aware of
existence of promissory note and signature of the deceased R.Palanisamy in
the Sub-Registrar Office, Pollachi, when the promissory note was registered.
The petitioner has not given any reason for not called for the said register
before the Trial Court and sought for comparison of signature of the register
with that of the disputed signature. It is not the case of the petitioner that
inspite of due diligence he was not aware of promissory note and register or
could not produce the same before the Trial Court. The learned Judge
considered entire materials in proper perspective and dismissed I.A.No.25 of
2015. When the application to call for register from the Sub-Registrar Office,
Pollachi is dismissed, I.A.No.24 of 2015 seeking to send the register along
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C.R.P.(PD).Nos.3877 & 3878 of 2016
with disputed signature does not arise.
14.For the above reasons, both the Civil Revision Petitions are
dismissed. Consequently, the connected Miscellaneous Petition is closed. No
costs.
19.11.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned Subordinate Judge,
Pollachi.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).Nos.3877 & 3878 of 2016
V.M.VELUMANI, J.
krk
C.R.P.(PD).Nos.3877 & 3878 of 2016
19.11.2021
https://www.mhc.tn.gov.in/judis
