An original petition by the petitioner/defendant was dismissed. It sought to send a photostat copy of an agreement for expert forensic examination to compare signatures. The High Court held that comparison under Section 45 of the Evidence Act regarding disputed signatures cannot be made on a photostat copy without the original.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
OP(C) NO. 1507 OF 2023
FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA
AGAINST THE ORDER DATED 30.06.2023 IN I.A.NO.05 OF 2023 IN
OS NO.30 OF 2017 ON THE FILES OF THE COURT OF SUBORDINATE
JUDGE, PAYYANNUR
PETITIONER/PETITIONER/DEFENDANT:
C.P. ABOOBACKER
AGED 62 YEARS
SON OF MUHAMMED, AGED 62 YEARS, RAHMATH MANZIL,
KADAPPURAM ROAD, AZHIKODE AMSOM DESOM, KANNUR
TALUK, KANNUR DISTRICT, PIN – 670 009
BY ADVS.
C.MURALIKRISHNAN (PAYYANUR)
SHAHNA
ABRAHAM GEORGE JACOB
P.I.RAHEENA
RESPONDENT/RESPONDENT/PLAINTIFF:
C. YOUSAF
SON OF ERAMULLAN, VALLEY VIEW, ALAVIL, KANNUR,
PIN – 670 008
BY ADVS.
ABDUL RAOOF PALLIPATH
K.R.AVINASH (KUNNATH)(K/1364/2003)
E.MOHAMMED SHAFI(K/1057/1993)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
0.P.(C).No.1507 of 2023
2
JUDGMENT
Dated, this the 6th day of March 2024
The petitioner herein is the defendant in the
suit, O.S.No.30/2017, of the Sub Court, Payyanur. He
is aggrieved by Ext.P11 order, which refused Ext.P9
application to send Ext.P3 agreement for examination
by an expert, for the purpose of comparison of
signature.
2.Heard the learned counsel for the petitioner and
the respondent.
3.The bare minimum facts required for the
disposal of this Original Petition are as follows:
A suit for money was instituted by the
respondent/plaintiffagainstthe petitioner/
defendant. In the written statement, the
petitioner/defendant claimed discharge of the debt
3
0.P.(C).No.1507 of 2023
on the strength of Ext.P3 agreement. However, the
said agreement was not produced along with the
written statement. By virtue of Ext.P5, the
petitioner/defendant, filed an application seeking
production of the original of the Ext.P3 agreement,
which according to the petitioner/defendant was in
the hands of the respondent/plaintiff. To Ext.P5,
the respondent/plaintiff filed Ext.P6 objection,
stating that no such agreement has ever been
executed by the respondent/ plaintiff and that
the photostat copy of such an agreement produced
before the court earlier is one created by
fraudulent means. Thereafter, the trial commenced on
02.02.2023. The counsel for the petitioner/defendant
confronted the plaintiff/respondent with Ext.P3,
which is a photostat copy of the agreement, and the
same was provisionally marked as Ext.B1. In Ext.B1,
the signature of the respondent/plaintiff in some of
the pages was admitted by the respondent/ plaintiff.
Thereafter, the defendant mounted the box and a
0.P.(C).No.1507 of 2023
4
question was put to the defendant/petitioner as to
why Ext.P3 was not sent for forensic examination,
which prompted the petitioner to file the instant
application – Ext.P9 - for sending Ext.P3 for
forensic examination. By virtue of Ext.P11 order,
the learned Sub Judge dismissed the application, on
the premise that the signatures in a couple of
pages of Ext.P3 have already been admitted by the
plaintiff/respondent, wherefore, the examination by
an expert is not necessary.
4.Having heard the learned counsel for the
petitioner and respondent and perused Ext.P11 order,
this court is of the opinion that Ext.P11 is liable
to be sustained, though for reasons different
altogether. Primarily, this court notice that the
genuineness of Ext.P3 agreement was denied by the
respondent/ plaintiff as far back as on 22.09.2021,
when the respondent tendered an objection to Ext.P5,
vide Ext.P6. However, no steps were taken by the
0.P.(C).No.1507 of 2023
5
petitioner/defendant to prove the authenticity of
Ext.P3 by sending the same for forensic examination,
which is otherwise also not possible for reasons to
be adverted later in this judgment. Instead, the
defendant/petitioner chose to prove the same by
examining the witnesses therein, a course permitted
by the law, surely. However, the present attempt
of petitioner/defendant to send the documents for
forensic examination is highly belated, that too
allegedly on the basis of a question put to
defendant in the cross examination, as to why the
document was not sent for examination by an expert.
This court notice that the agreement was not
produced along with the written statement and the
same was produced thereafter. After the plaintiff,
as also, the defendant were examined, recourse to
section 45 of the Evidence Act is not usually
permissible, unless the applicant satisfies that he
could not have preferred an application under
0.P.(C).No.1507 of 2023
6
section 45 earlier on account of the peculiar facts
and circumstances, if any.
5.Coming to the context of comparison under
section 45 of the Evidence Act, it is settled that
no comparison can be made by an expert on the basis
of a photostat copy of the disputed document. It is
relevant to note that the signature contained in
Ext.P3 photostat copy is disputed and the
genuineness of such signature has to be opined by
the expert. That being so, in the absence of the
original of Ext.P3, a comparison under section 45 is
not possible. For that reason alone, the Ext.P9
application was liable to be dismissed.
For the aforesaid reasons this Original Petition
fails and the same will stand dismissed.
Sd/-
C.JAYACHANDRAN, JUDGE
SSG
0.P.(C).No.1507 of 2023
7
APPENDIX OF OP(C) 1507/2023
PETITIO |
NER’S EXHIBITS |
||||
|---|---|---|---|---|---|
Exhibit |
P1TRUE COPYDATED 28/BEFORE THE |
OF09/2SUB |
THE017COU |
PLAINT IN O.S.FILED BY THERT, PAYYANNUR |
NO. 30/2017RESPONDENT |
Exhibit |
P2TRUE COPYENTERED INRESPONDENT |
OFTO |
THEBETW |
AGREEMENT DATEDEEN THE PETITION |
15/11/2016ER AND THE |
Exhibit |
P3TRUE COPYEXECUTEDRESPONDENT |
OFAMO |
THENG |
AGREEMENT DATEDTHE PETITIONER |
08/05/2017AND THE |
Exhibit |
P4TRUE COPYPETITIONER28/11/2017 |
OFBEF |
WRITINORE |
TEN STATEMENT FO.S.NO.3THE SUB COURT, P |
ILED BY THE0/2017DATEDAYYANNUR R |
Exhibit |
P5TRUE COPYFILED BYPRODUCTION |
OFTOF |
THEHEDOCU |
AFFIDAVIT ANDPETITIONER SEEMENT DATED 08/09 |
APPLICATIONKING CAUSE/2021. |
Exhibit |
P6TRUE COPYFILED BYAPPLICATIO |
OFTHEN FI |
THERESLED |
COUNTER DATEDPONDENT TO THEBY THE PETITIONE |
22/09/2021EXHIBIT P5R. |
Exhibit |
P7TRUE COPYFILED BY TCHIEF EXAM |
OFHEINAT |
THEPLAIION |
AFFIDAVIT DATEDNTIFF/RESPONDENTAND DEPOSITION I |
02/02/2023IN LIEU OFN CROSS. |
Exhibit |
P8TRUE COPYFILED BY TCHIEF EXAM |
OFHEINAT |
THEDEFEION |
AFFIDAVIT DATEDNDANT/PETITIONERAND DEPOSITION I |
02/02/2023IN LIEU OFN CROSS |
Exhibit |
P9TRUE COPYOF THE APO.S. NO.THE PETITI |
OFPLI30/2ONER |
THECATIO017BEF |
AFFIDAVIT FILEDN IN I.A. NO.DATED 09/02/202ORE SUB COURT, P |
IN SUPPORT05/2023 IN3 FILED BYAYYANNUR |
Exhibit |
P10TRUE COPYFILED BY TIN O.S. NO |
OFHE. 30 |
THERESP/201 |
COUNTER DATEDONDENT TO I.A.7 OF SUB COURT, |
09/02/2023NO. 05/2023PAYYANNUR |
Exhibit |
P11TRUE COPYPAYYANNUR30/2017 DA |
OINTED |
F TI.A.30/0 |
HE ORDER OFNO. 05/2023 I6/2023 |
SUB COURT,N O.S. NO. |
3 issues framed by the court
Whether an application for expert comparison of signatures under section 45 of the Evidence Act can be entertained based on a photostat copy when the original is not produced.
Whether the application for forensic examination was belated given the genuineness of the document was denied much earlier in the proceedings.
Whether section 45 of the Evidence Act is generally permissible after examining the parties inSuit.
1 provisions across 1 enactments
C. P. Aboobacker
C. Yousaf
C. Jayachandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court