Dismissed

S.Sekar v. K.Chandrasekar

Madras HC20 Oct 2023CRP/273/2023

Case brief

AI extract

What is this about?

This revision petition challenged an order allowing an application for expert handwriting comparison under Section 45 of the Indian Evidence Act. The High Court dismissed the revision, holding the trial judge did not commit a legal error, while directing the trial court to formally mark the disputed document and proceed with the comparison.

What did the court decide?

The trial judge is directed to mark the document and send it to the Handwriting Expert for Opinion. Defendants are directed to produce the record slip of the cheque book for comparison.

S.Sekar Vs K.Chandrasekar — Specific Performance | Madras HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 20.10.2023

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CORAM :

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THE HONOURABLE MRS. JUSTICE T.V. THAMILSELVI

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Civil Revision Petition No.273 of 2023

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and C.M.P.No.2280 of 2023

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S. Sekar .. Petitioner

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Versus

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1.K. Chandrasekar 2.R. Raghu ... Respondents

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Civil Revision Petition filed Under Article 227 of Constitution of India, against the fair and decreetal orders made in I.A.No.6 of 2022 in O.S.No.424 of 2018 dated 09.12.2022 on the file of the IV Additional District and Sessions Judge, Tiruvallur District at Ponneri. For Petitioner : Mr. T. Kishore Kumar For Respondents : Mr. V. Lokesh Kumar

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ORDER

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The petitioner has filed this revision petition to set aside the order made

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in I.A.No.6 of 2022 in O.S.No.424 of 2018 dated 09.12.2022 on the file of the

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IV Additional District and Sessions Judge, Tiruvallur District at Ponneri.

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The revision petitioner is the plaintiff. He has filed the suit in

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https://www.mhc.tn.gov.in/judis

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O.S. No. 424 of 2018 for the relief of Specific Performance of the agreement dated 21.11.2015 and to execute the sale deed in his favour, with an alternative relief of refund of the sum of Rs.25,00,000/- with interest at the rate of 24% per annum from 19.11.2018 till the date of payment.

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According to the respondents/defendants, they have jointly borrowed a sum of Rs.6,00,000/- on 14.07.2013 and Rs.5,00,000/- on 26.07.2014 respectively, from the plaintiff by way of Cheques. At the time of borrowal, the plaintiff obtained their signature in his 2013 diary without writing anything in it. In the year 2017, when the defendants sought time to repay the amount, the plaintiff demanded to sell the plaint described property to him. In such circumstances, the defendants 1 and 2/respondents yielded to the demands made by the plaintiff and wrote the contents as dictated by the plaintiff in his 2013 diary where they have already signed and it cannot be construed to be a sale agreement.

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After filing the written statement, the defendants 1 and 2 have filed the present I.A. No. 6 of 2022 under Section 45 of Indian Evidence Act to send Ex.A1 and B1 for expert opinion for comparision of handwritings found in the title of Ex.A1 "Rs.25,00,000/- ikkana pana patru raseethu" and the

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https://www.mhc.tn.gov.in/judis

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handwriting in page 2 and 3 of Ex.B1 to know that both the handwritings are one and the same; to ascertain the different periods or age of the operative portion and witness portion in Ex.A1.

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Considering both sides submissions the learned trial Judge allowed the application with a direction to handwriting expert to compare the disputed handwriting found in Ex.A1 “Rs.25,00,000/-- ikkana pana patru raseethu” and the handwriting in page 2 & 3 of Ex.B1 to clear whether oth the handwritings are one and the same and to ascertain the different periods or age of the operative portion and witness portion in Ex.A1. For this purpose, the trial court also appointed an Advocate Commissioner to get the handwriting experts opinion and shall take the said documents for such comparison to the expert of Forensic Department and to produce the documents for handwriting experts opinion on 17.01.2023. Against the said order, the plaintiff has preferred this revision petition.

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The learned counsel for the revision petitioner submitted that after commencement of the trial, the defendants have straight away filed this application to compare the handwriting found in Ex.A1 along with record proof of the cheque slip of the cheque book without any pleadings to that

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https://www.mhc.tn.gov.in/judis

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effect in the written statement filed by them, as such, it is not permissible, but the learned trial Judge ignoring the same directed to get the expert opinion and it is liable to be set aside.

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The learned counsel for the respondents/defendants submitted that the record slip of the cheque books are relating to the year of 2015 and the alleged document Ex.A1 is in the year 2014. To compare handwriting of the plaintiff, the respondents have to prove the same and for this purpose, the cheque book was directed to be sent and the same was rightly appreciated by the learned trial Judge.

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On a perusal of the records, it reveals that the plaintiff has originally filed the suit for specific performance, directing the defendants 1 and 2 to execute the sale deed in his favour. According to the plaintiff, there was a sale transaction between him and the defendants by which the defendants agreed to sell the plaint described property in his favour, but it was the defence of the defendants that there was no such sale agreement. In order to prove their defence they have filed the instant application to send Exs. A1 and B1 for an expert opinion. Though Ex.B1, "record slip of the first

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defendant's cheque book is an unmarked document, still all the cheque books,

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https://www.mhc.tn.gov.in/judis

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it was sent only for the purpose of comparision of the signature with Ex.A1,

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which is said to be written by the plaintiff by his own handwriting. To support his contention, the revision petitioner placed reliance on the Order of Calcutta

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High Court, in C.O.No.2358 of 2011, Swami Satyanand Vs. Rajiv Ranjan

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Kumar Singh, in which reads as follows:

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"24. In this application in deciding the property of the said order it has to be seen as to whether the learned Court below was justified in entertaining the said application and directing appointment of an expert to examine the said signatures. It has to be kept in mind that the trial has not begun and the subject document is yet to be tendered and produced in evidence. Moreover, the petitioner has raised serious objection with regard to the admissibility of the said document on various grounds including insufficiency of stamp duty paid on the said document. The documents, with which the questioned document is directed to be compared and examined, is also not on record. In my view, when such issues are involved and the question of admissibility of the said document on the ground that the said document is forged, fabricated and insufficiently stamped has to be considered at the stage of marking such document as an exhibit and which issue is required to be decided at the stage when the said document is sought to be tendered as an exhibit in view of the judgment of the Hon'ble Supreme Court reported in 2004 (7) SCC 107 (Dayamati Bai V.K.M. Shaffi) and 2010 (8) SCC 423 (Shalimar Chemicals Works Ltd., V.Surendra Oil &

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https://www.mhc.tn.gov.in/judis

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Dal Mills Refineries) the trial Judge at the stage of admission of such documents and marking the said documents as exhibits could examine the said question and pass appropriate orders in exercise of its power under Section 45, 47 and 73 of the Indian Evidence Act, 1872."

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By relying the said proportion, it is submitted that the documents which is sought to be compared on the side of the respondents, though not marked, can very well be sent to comparision by an expert and the issue as regards admissibility of the said document can be decided only at the stage when the document is marked as an exhibit. The facts of the case is squarely applicable to this case.

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Accordingly this revision petition is dismissed as devoid of merits. Consequently, connected miscellaneous petition is closed. No costs. However, the learned trial Judge is directed to mark the document and send it to Handwriting Expert for Opinion. The defendants are directed to produce the record slip of the cheque book for comparison and assist the Court Commissioner.

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Index : Yes/No https://www.mhc.tn.gov.in/judis

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20.10.2023

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Speaking/Non Speaking order Neutral Citation: Yes/No rri

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