Dismissed

Kanthammal v. Jothi

Madras HC1 Jul 2014CRP/1878/2014

Case brief

AI extract

What is this about?

The Madras High Court dismissed a civil revision petition challenging the dismissal of an application to appoint a commissioner for signature comparison. The court held the application lacked bona fides due to a deliberate delay and held that the trial court correctly rejected comparison with post-dispute signatures when a valid ante-litem motem signature was available.

What did the court decide?

The Civil Revision Petition was dismissed. No costs. The connected miscellaneous petition was closed.

Kanthammal Vs Jothi — Contract and Commercial Disputes | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED:01.07.2014

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CORAM:

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THE HONOURABLE MS.JUSTICE R.MALA

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CRP (PD) No.1878 of 2014 and

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M.P.No.1 of 2014

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Kanthammal

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Babu @ Adhithya

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Ramesh Babu

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Munusamy

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Rajendran

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.. Petitioners

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Vs.

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Jothi

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The Sub Registrar, Arakkonam, Vellore District.

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.. Respondents

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Prayer : This Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 17.04.2014, made in I.A.No.153 of 2014 in O.S.No.233 of 2008 on the file of the learned District Munsif, Arakkonam.

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For Petitioners : Mr.J.Shanmugasundara Babu For R-1 : Mr.G.Jeremiah For R-2 : Served

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ORDER

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This Civil Revision Petition has been filed against the fair and decreetal

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order dated 17.04.2014, passed in I.A.No.153 of 2014 in O.S.No.233 of 2008 by the learned District Munsif, Arakkonam.

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The learned counsel appearing for the first revision petitioners submitted that the revision petitioners as plaintiffs filed a suit for specific performance on the basis of the sale agreement dated 28.08.1992. Since the first defendant/first respondent herein has disputed the signature by raising a defence that the sale agreement is a forged document, the plaintiffs/revision petitioners filed an application in I.A.No.153 of 2014 in O.S.No.233 of 2008 under Order 26 Rule 10A of C.P.C. to appoint an Advocate Commissioner to hand over the disputed document along with the admitted document to the Forensic Department for comparison. But, the Trial Court has dismissed the application only on the ground of delay, which is illegal. To substantiate his argument, he relied upon the decision of the Apex Court reported in 2009 (1) MLJ 1359 (Damara Venkata Murali Krishna Rao vs. Gurujupalli Satvathamma) and also the decision of this Court reported in 2010 (3) MLJ 65 (S.Chinnathai vs. K.C.Chinnadurai) . He further relied upon the decision of this Court reported in 2009 (4) MLJ 751 (P.Natarajan v. Parasuraman and another), wherein, ante litem motem signature of the defendant has also been considered. He further submitted that on the date of sale agreement, power of attorney was executed by the first defendant in favour of the third party, wherein, the admitted signature is there, which may be used for comparing the disputed signature in Ex.A1, i.e. Sale Agreement. Hence, he prayed for allowing of this Civil Revision Petition.

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The learned counsel appearing for the first respondent submitted

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that the alleged Sale Agreement is said to be executed on 28.08.1992 and before filing the suit, the first defendant/first respondent herein issued a reply notice, wherein, she denied the document stating that it is a forged document. He further submitted that the plaintiffs/revision petitioners herein filed the suit in the year 2008 and they kept quiet all along till 20.03.2014 and when the matter was posted for arguments, they filed the present application. He further submitted that on the side of the plaintiffs, P.W.1 to P.W.4 were examined and after closing the evidence, the plaintiffs filed an application to recall the evidence of P.W.2, which was allowed and at that time, they have not filed any applications

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and now, they filed the present application, with a view to drag on the proceedings. Hence, the trial Court has correctly considered the above said factum and dismissed the application. He further submitted that in the affidavit itself, the revision petitioners herein stated that the disputed signature in Ex.A1 has to be compared with the summons and vakalat, which is not permitted by law. To substantiate the same, he relied upon the decision of this Court reported in 2006 3 CTC 39 (Central Bank of India (A Nationalised Bank), rep. by its Manager, N.Gururajan, No.1, Alaiamman Kovil Street, Teynampet, Chennai – 600 018 vs. Antony Hardware Mart, Rep. by its Proprietor, K.Subbiah, No.113, Eldams Road, Teynampet, Chennai – 600 018 and another) and prayed for dismissal of this revision.

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I have considered the rival submissions made by both sides and

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perused the typed set of papers.

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The admitted facts are that the revision petitioners herein filed the suit for specific performance on the basis of the sale agreement dated 28.08.1992. Before filing the suit, the plaintiffs issued Ex.A3-pre-suit notice dated 10.10.2008 to the first defendant, for which, the first defendant issued Ex.A5-reply notice dated 21.10.2008, wherein, in para 2, she specifically mentioned that the alleged agreement is a forged one. Thereafter only, the suit was filed for specific performance. The first defendant/first respondent herein filed her written statement on 19.05.2009, wherein, she reiterated her defence that the sale agreement is a forged document.

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After settlement of issues, the trial commenced. Admittedly, on the side of the plaintiffs, P.W.1 to P.W.4 were examined and Exs.A1 to A7 were marked and on the side of the defendants, D.W.1 was examined and Ex.B1 was marked. It is also an admitted fact that after closing the oral evidence, the revision petitioners herein filed an application to recall the evidence of P.W.2, which was allowed and he was examined further and when the matter was posted for argument on 13.03.2014, the present application under Order 26 Rule 10A of C.P.C. was filed on 20.03.2014. The trial Court has dismissed the application only on the ground that there is a delay in filing the application. Further, the trial

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Court has held that the admitted signature for the relevant period has not been produced and it further held that the summons, vakalath and written statement cannot be compared with the disputed document and the document pertaining to ante litem motem alone has been taken into consideration.

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Before considering the facts of the case, this Court has to consider the decisions relied upon by the learned counsel appearing for both sides.

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The learned counsel appearing for the revision petitioners submitted that as per the decision of this Court reported in 2009 4 MLJ 751 (P.Natarajan vs. Parasuraman and another) , wherein, it was held that ante litem motem signature of the defendant alone has been taken into consideration for comparison with the disputed document. There is no dispute about the same, which has been conceded by the learned counsel appearing for the first respondent by producing the decision of the Division Bench of this Court reported in 2006 (3) CTC 39 (Central Bank of India (A Nationalised Bank), rep. by its Manager, N.Gururajan, No.1, Alaiamman Kovil Street, Teynampet, Chennai – 600 018 vs. Antony Hardware Mart, Rep. by its Proprietor, K.Subbiah, No.113, Eldams Road, Teynampet, Chennai – 600 018 and another) , wherein, in para 9, it was held as follows:

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“9. At the outset, we want to point out that the Trial Court has committed an error in comparing the signatures in Ex.A2 and Ex.A5 with the admitted signature of the defendant in the

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Vakalath and written statement. In the judgment in Somasundaram v. Palani, 1999 (3) CTC 156 , this Court has held as follows:

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“Even though the Court may have the power

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to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison.”

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It is settled law that the disputed signature can be compared with admitted signature, which were contemporaneous and not with the admitted signatures obtained subsequent to the date of the disputed signature. By lapse of time, there may be some difference in the signature of a person. Only based on that principle, the above said judgment has been rendered by the learned single Judge of this Court. Therefore, the Trial Court erred in comparing the signatures in Ex.A2 and Ex.A5 with the signatures found in the Vakalath and written statement of the defendant.”

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It is a well settled principle of law that once the signature of the document has been disputed, ante litem motem signature of the defendant has alone been considered for comparison.

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At this juncture, the learned counsel appearing for the revision petitioners has taken me to page No.33 of the typed set of papers stating that Ex.B1 has been executed on the date of execution of Ex.A1, i.e. on 28.08.1992. Both the first plaintiff's husband and the first defendant had executed a power of attorney in favour of the third party, which is admitted by D.W.1. So, the signature of the first defendant/first respondent herein in Ex.B1 is an admitted signature. Even though in her affidavit, she has not stated what document has to be sent for comparison with the disputed signature, but, there is a document pertaining to the period ante litem motem. Hence, the learned counsel appearing

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for the revision petitioners prayed for setting aside the finding of the trial Court.

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I have considered the arguments and also the page No.33 in the typed set of papers.

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D.W.1 herself admitted her signature in Ex.B1, which came into effect on the date of execution of Ex.A1, i.e. on 28.08.1992. In such circumstances, it is appropriate to incorporate the portion of page 33.

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“vd;dplk; fhl;lg;gLk; bghJ mjpfhu gj;jpuk; rhd;wpl;l efy; ehDk; vd; jfg;gdhh; kw;w thhpRfs; kw;Wk; gpujpthjpfs; vGjpf;bfhLj;Jjhd;. mJ gp/rh/M1. gp/rh/M1 Mizg;go jhth brhj;J kw;w brhj;Jf;fisa[k; tpw;gid bra;a mjpfhuk; bfhLf;fg;gl;Ls;sJ/”

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The said factum has not been brought to the knowledge of the trial Court. Hence, I am of the view that the document, i.e. Ex.B1 contains the admitted signature of the first defendant, hence, the same can be used for comparison of the signature with the disputed document, i.e. Ex.A1.

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In respect of second limb of argument is concerned, whether the delay is a reason for dismissal of the application.

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The learned counsel appearing for the revision petitioners relied upon the decision of Apex Court reported in 2009 (1) MLJ 1359 (Damara Venkata Murali Krishna Rao vs. Gurujupalli Satvathamma), wherein, it was held as follows:

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“Occasion for making such application arose only after

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examination – Cannot be held such application is filed to protract the proceedings – Impugned order set aside and Trial Court directed to pass necessary orders.”

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In the above citation, the cause of action arose after P.W.1's son was examined as C.W.1 and he denied the signatures appearing on Exs.B1 to B12 and the Trial Court

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closed the evidence and posted the case for argument, at that time, the application under Section 45 was filed to send Exs.B1 to B12 to the Government Expert opinion for comparison of the signatures of C.W.1 appearing thereon with his admitted signatures appearing on the deposition as well as summons served on

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him. But, in the case on hand, pre-suit notice was issued much before the date of filing of the suit and reply notice was issued on 21.10.2008, wherein, it was also specifically mentioned that the sale agreement is a forged document and the same was reiterated in the written statement. The plaintiffs kept quiet all along till the matter was posted for arguments. In such circumstances, the above citation is not applicable to the facts of the case.

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In the decision of this Court reported in 2010 (3) MLJ 65

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(S.Chinnathai vs. K.C.Chinnadurai), it was stated as follows:

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“I. When the Civil Court decides an application filed under provisions of Order 26 Rule 10A of the Code of Civil Procedure, the Court has to decide as to whether the said application is necessary for the purpose of deciding the issue involved in the case.

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II. Mere delay in filing the application cannot be a ground for rejecting an application seeking exercise of power under Order 26 Rule 10A of the Code of Civil Procedure. While deciding the said application, the Civil Court cannot reject the application only on the ground of delay, until or unless it comes to conclusion that the application lacks bona fides or the same has been filed with the sole view to protract the proceedings.”

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As already stated, the genuineness of sale agreement was disputed in the reply notice, which was reiterated in the written statement filed by the first respondent herein. After examination of P.W.1 to P.W.4 and defendant's side evidence was over, the plaintiffs/revision petitioners filed the application to

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recall the evidence of P.W.2, which was allowed and he was examined further and when the matter was posted for argument on 13.03.2014, the plaintiffs/revision petitioners filed the application to appoint an Advocate Commissioner to hand over the disputed document along with the admitted document to the Forensic Department for comparison, which shows the mala fide intention of the revision petitioners to protract the proceedings. So, I am of the view that the trial Court has considered all the aspects in proper perspective and came to the correct conclusion. Hence, I do not find any merits in this Civil Revision Petition and the same is liable to be dismissed.

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