Madras High Court
Saraswathi vs P.A.Rajendran on 13 July, 2023
AS.No.106 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.07.2023
CORAM:
THE HONOURABLE Mr. JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE Mrs.JUSTICE R.KALAIMATHI
A.S.No.106 of 2014
and
CMP.Nos.9150 & 9151 of 2023
Saraswathi
... Appellant/Defendant
-Vs-
P.A.Rajendran
... Respondent/Plaintiff
PRAYER: First Appeal filed under Section 96 of the Code of Civil
Procedure against the Judgment and decree dated 30.08.2013 made in
O.S.No.43 of 2010 on the file of the II Additional District Court, Salem.
For Appellant : Mr.T.Murugamanickam
Senior Advocate
for Ms.Zeenath Begum
For Respondent : Dr.P.Jagadeesan
for Mr.K.Selvaraj
*****
1/8
https://www.mhc.tn.gov.in/judis
AS.No.106 of 2014
JUDGMENT
[Judgment of the Court was delivered by R.SUBRAMANIAN, J]
The instant appeal is filed by the defendant in OS.No.43 of 2010 on the
file of the II Additional District Court, Salem for a suit for Specific
Performance.
2. The plaintiff sought for specific performance of the Agreement dated
30.07.2007 contending that the defendant had agreed to sell the suit property
for a consideration of Rs.32,65,100/-. It was also further contended that the
defendant had received a sum of Rs.25,001/- under the receipt-Ex.A1 dated
19.12.2006, Rs.50,000/- under the receipt-Ex.A2 dated 29.01.2007.
Thereafter, the suit Agreement came to be entered on 30.07.2007 on which
date the plaintiff claimed to have paid an advance of Rs.20,00,000/-.
Contending that he has been ready and willing to perform his contract and the
defendant is evading the execution of sale deed, the plaintiff came up with the
present suit.
https://www.mhc.tn.gov.in/judis
AS.No.106 of 2014
3. The Trial Court framed the following issues:-
1. Whether the defendant entered into an agreement with
the plaintiff for sale of the suit properties and received a
sum of Rs.25,001/- as advance on 19.12.2006?
2. Whether the defendant received a sum of Rs.50,000/- as
further advance?
3. Whether a regular sale agreement was executed between
the plaintiff and the defendant on 30.07.2007 and the
defendant has received a sum of Rs.20,00,000/-?
4. Whether the receipts and sale agreement are forged and
created by the plaintiff?
5. Whether the plaintiff is entitled for the relief of specific
performance as prayed for?
6. Whether the plaintiff is entitled for the alternative relief
of return of advance amount with a creation of charge
over the suit properties?
7. Whether the description of the suit property is correct?
8. To what relief, the plaintiff is entitled?
9. Whether the plaintiff is always ready and willing to
perform his part of contract?
4. The case of the defendant was one of total demand. She claimed that
the Agreement itself has been created. The Trial Court disbelieved the
https://www.mhc.tn.gov.in/judis
AS.No.106 of 2014
defence and on the conclusion that the plaintiff has been ready and willing to
perform his part of contract, decreed the suit.
5. At trial, PW1 to PW5 were examined and Exs.A1 to A13 (Exs.A11 to
A13 were marked in cross examination of DW1) were marked on the side of
the plaintiff. DW1 was examined and Exs.B1 to B4 were marked on the side
of the defendant. Exhibits X1 to X3 were also marked.
6. The Trial Court found that the plaintiff has proved the Agreement
and that he is ready and willing to perform his part of the contract. On such
finding, the Trial Court decreed the suit, leading to this appeal. Pending this
appeal, the original document namely the Sale Agreement was disputed by the
appellant. A Division Bench of this Court thought it fit to refer the matter for
opinion of a Finger Print Expert. Originally the thumb impressions found in
the records of the Trial Court viz., in the deposition of the defendant were
directed to be compared and the Finger Print Expert gave an opinion that
those thumb impressions were smudged and are unfit for comparison.
Therefore, the defendant was asked to appear before the Finger Print Expert
and the Finger Print Expert was permitted to take the thumb impressions in the
https://www.mhc.tn.gov.in/judis
AS.No.106 of 2014
presence of the counsel for the parties and the Advocate Commissioner
appointed for the purpose and Mr.T.A.Shagul Hameed, Advocate
Commissioner appointed for that purpose. After taking such thumb
impressions, the Finger Print Expert had written an opinion stating that the
disputed thumb impression found in the second page of the Original Sale
Agreement-Ex.A3 is smudged and is incapable of being compared. As
regards the disputed thumb impression found in the first page of Sale
Agreement-Ex.A3, the Expert had opined that it does not match with the
admitted thumb impression marked as “S”. The characteristics of differences
have also been pointed out by the Finger Print Expert. They read as follows:-
“OPINION II: The Disputed Left Thumb impression marked
as “D1” found against the name of Saraswathi on the Original
Un-Registered Sale Agreement Deed is “NOT IDENTICAL”
with the Specimen Left Thumb impression marked as “S”
found on the Original Specimen Left Thumb impressions sheet
of Saraswathi.
REASON: The ridge characteristics that are found in the
Disputed Left Thumb impression marked as “D1” are not
found in their same relative positions in the Specimen Left
Thumb impression marked as “S” of Saraswathi.
For the purpose of demonstration in the Court, the
https://www.mhc.tn.gov.in/judis
AS.No.106 of 2014
Photo enlargements marked as “D1” and “S” were got
prepared, affixed in white sheets and have marked five not
identical ridge characteristics in red lines in photo
enlargement “D1” and its descriptive particulars are
enumerated below for easy reference.
Point No.1 Is a bifurcation of a ridge.
Point No.2 Is a bifurcation of a ridge above and to the left of
Point No.1 with three ridges intervening.
Point No.3 Is a termination of a ridge below and to the left of
Point No.2 with one ridge intervening.
Point No.4 Is a termination of a ridge to the left of Point No.3
with one ridge intervening.
Point No.5 Is a bifurcation of a ridge below and to the left of
Point No.4 with no ridge intervening.
All the above ridge characteristics available in the
Disputed Left Thumb impression marked as “D1” are not
found in their same relative positions in the Specimen Left
Thumb impression marked as “S” of Saraswathi.
CONCLUSION: Hence, the Left Thumb impressions marked
as “D1” and “S” are “NOT IDENTICAL” with each other
and are not made by one and the same finger of the same
person (i.e) the Left Thumb impression said to be of
Saraswathi.”
https://www.mhc.tn.gov.in/judis
AS.No.106 of 2014
7. In view of the above, it becomes unnecessary for us to enter upon any
other issues. Once it is found that the thumb impression found in the suit
Agreement is not that of the defendant, that suit has to necessarily fail. We
are therefore not going into any other questions. We accepted the report of the
Finger Print Expert and the same shall form part of the records. The Advocate
Commissioner has returned all the documents along with the warrants.
Hence, the appellant shall pay a further sum of Rs.30,000/- to the Advocate
Commissioner, within a period of two(2) weeks from the date of receipt of a
copy of this judgment.
8. In view of the above, this appeal stands allowed and the suit in
OS.No.43 of 2010 will stand dismissed. We however make no orders as to
costs. Consequently, connected CMPs are also closed.
[R.S.M., J] [R.K.M., J]
13.07.2023
Index : No
Speaking Order
kmi
To
The II Additional District Court,
Salem.
https://www.mhc.tn.gov.in/judis
AS.No.106 of 2014
R.SUBRAMANIAN, J
and
R.KALAIMATHI, J
kmi
A.S.No.106 of 2014
and CMP.Nos.9150 & 9151 of 2023
13.07.2023
https://www.mhc.tn.gov.in/judis
