The High Court of Kerala disposed of an original petition filed by a plaintiff seeking to interfere with a lower court order that dismissed an application for forensic comparison of a disputed agreement signature. The application was rejected due to significant delay in filing the request.
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
TUESDAY, THE 9TH DAY OF JANUARY 2024 / 19TH POUSHA, 1945
OP(C) NO. 2738 OF 2023
AGAINST THE ORDER/JUDGMENT OS 11/2022 OF ASSISTANT SESSIONS COURT/SUB COURT, CHENGANNUR
PETITIONER/PETITIOER/PLAINTIFF:
KARTHIKEYAN AGED 52 YEARS S/O. GOPALAN, KARTHIKEYAM VEETTIL, THULAMPARAMBU SOUTH MURI, HARIPPAD VILLAGE, KARTHIKAPPALLY TALUK, ALAPPUZHA, PIN - 690514 BY ADVS. M.R.ARUNKUMAR MINI V.MENON P.SHAMMI NAVAS
RESPONDENT/RESPONDENT/DEFENDANT:
UDAYADEVI AGED 59 YEARS W/O. DASAPPAN PILLAI, GOKULAM VEETTIL, CHERUKOL P.O., CHENNITHALA VILLAGE, ALAPPUZHA - 690104 FROM PAZHAYIKKAL KOYIKKALETH VEETTIL, KARAZHMA WEST MURI, CHENNITHALA VILLAGE, MAVELIKARA TALUK, ALAPPUZHA, PIN - 690105 BY ADVS. P.BIJIMON ABRAHAM JOSEPH(K/906/1990) JACOB SAMUEL(K/259/1997) K.T.SEBASTIAN(K/1079/2001)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C).No. 2738 of 2023
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J U D G M E N T
Dated this the 9th day of January, 2024
The petitioner herein is the plaintiff in
O.S.No.11/2022 pending before the Sub Court,
Chengannur. Petitioner is aggrieved by Ext.P7 order, which dismissed an application to send Ext.A3 agreement for the purpose of comparison of
signature.
2. Heard the learned counsel for the petitioner
and the respondent.
3. Learned counsel for the petitioner submits
that, Ext.A3 agreement is one executed by and between the petitioner and the respondent. Though, the suit is one based on Ext.A1 cheque, Ext.A3 is
a very relevant document, the proof of which is essential to drive home the plaint case. It was further pointed out that, the plaintiff was labouring under the impression that Ext.A3
O.P.(C).No. 2738 of 2023
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agreement can be proved by examining one of the attesting witnesses. However, at the time of trial, the said witness was not available, as he was employed abroad. The defendant/respondent mounted the box execution of Ext.A3 was denied, in which circumstance, the petitioner is constrained to file Ext.P5 application for comparison. According to the learned counsel, the delay which may be caused in disposing the suit will not affect the respondent/defendant in any manner, since the petitioner herein is the plaintiff. On larger interest of justice, the petitioner seeks the matter to be sent for forensic examination.
4. This application was seriously opposed by the learned counsel for the respondent. Learned counsel pointed out that, the instant application for comparison was filed only after completion of evidence, when the petitioner/plaintiff was sensitized of the denial of execution of Ext.A3 agreement, way back at the time when defendants
O.P.(C).No. 2738 of 2023
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filed the written statement. No steps were taken to send the document for comparison at the appropriate time and it is too late for the moment for the petitioner to seek a comparison of the document, is the submission made by the learned counsel for the respondent.
5. Having heard the learned counsel appearing on both sides, this Court is not inclined to interfere with Ext.P7 order. As rightly pointed out by the learned counsel for the respondent, the denial of execution of Ext.A3 agreement is a matter which came to the notice of the petitioner/plaintiff, at the time when the
defendant filed a written statement. No steps were taken to get the signature compared. The explanation offered is that the petitioner was expecting to prove Ext.A3 by examining one of the attesting witness to Ext.A3, who, however, was not available at the time of adducing evidence. As
regards the second witness to Ext.A3, the
O.P.(C).No. 2738 of 2023
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explanation offered is that, he is a person representing the defendant and he would not speak the truth before the Court. This Court is persuaded to accept the explanations offered by the counsel for the petitioner's. It is also not believable that the petitioner was not aware that the 1st witness to Ext.A3 was abroad and that he came to know the said fact only when the matter was posted for evidence. There is no sufficient explanation forthcoming either in Ext.P5
application, or for that matter even in the Original Petition, for the delay in seeking comparison of the signature in the document. The only explanation offered is the non availability of the first witness to Ext.A3.
6. This Court also takes stock of the power of the court under section 73 of the Evidence Act to compare the signature. It has been held by the Hon'ble Supreme Court that such power can well-nigh be invoked in appropriate cases, though,
O.P.(C).No. 2738 of 2023
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as a matter of general prudence, such power under Section 73 is something within the domain of an expert.
With the above observations, this Original Petition is disposed of.
Sd/- C. JAYACHANDRAN JUDGE
TR
O.P.(C).No. 2738 of 2023
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APPENDIX OF OP(C) 2738/2023
PETITIONER EXHIBITS
| Exhibit P1 | COPY OF THE AGREEMENT BETWEEN THE PETITIONER AND RESPONDENT EXECUTED ON 27.4.2022 |
|---|---|
| Exhibit P2 | COPY OF THE CHEQUE OF BANK OF BARODA DATED 9.5.2022 |
| Exhibit P3 | COPY OF THE PLAINT IN O.S. NO. 11 OF 2022 ON THE FILE OF THE SUB COURT, CHENGANNUR |
| Exhibit P4 | COPY OF THE WRITTEN STATEMENT IN O.S. NO. 11 OF 2022 BEFORE THE SUB COURT, CHENGANNUR DATED 30.11.2023 |
| Exhibit P5 | COPY OF THE PETITION I.A. NO. 9 OF 2023 IN O.S. NO. 11 OF 2022 FILED BEFORE THE SUB COURT, CHENGANNUR FILED BY THE PETITIONER DATED 15.11.2023 |
| Exhibit P6 | COPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A. NO. 9 OF 2023 IN O.S. NO. 11 OF 2022 BEFORE THE SUB COURT, CHENGANNUR DATED 30.11.2023 |
| Exhibit P7 | COPY OF THE ORDER IN I.A. NO. 9 OF 2023 IN O.S. NO. 11 OF 2022 BY THE SUB COURT, CHENGANNUR DATED 30.11.2023 |
2 issues framed by the court
Whether the original petitioner's application for comparison of signatures should be allowed despite the delay claimed to have arisen from the unavailability of witnesses.
Whether the High Court should interfere with the lower court's order dismissing the application for signature comparison under Section 73 of the Evidence Act.
1 provisions across 1 enactments
Karthiskeyan
Udayadevi
C. Jayachandr
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
