Dismissed

Ashwani Kumar and Anr. v. Harvinder Singh

Punjab & Haryana HC24 Jul 2009RSA/3044/2007

Case brief

AI extract

What is this about?

Appeal against concurrent judgments decreeing specific performance of an agreement to sell. The High Court distinguished a criminal precedent requiring expert handwriting evidence, holding that the civil courts below were justified in relying on their own comparison of admitted signatures.

What did the court decide?

Appeal dismissed; no costs; pending civil miscellaneous applications disposed of.

Ashwani Kumar and Anr. Vs Harvinder Singh — Specific Performance | Punjab & Haryana HC (2009)

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RSA No.3044 of 2007 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA

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AT CHANDIGARH.

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RSA No.3044 of 2007 (O&M) Date of Decision: 24.07.2009

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Ashwani Kumar and another

...Appellants

VERSUS

Harvinder Singh

...Respondent

CORAM: HON'BLE MR.JUSTICE AJAY TEWARI

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Present : Mr. R. K. Handa, Advocate with Mr. Madan Sandhu, Advocate for the appellants.

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Ms. Sonia G. Singh, Advocate for the respondent.

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AJAY TEWARI J. (ORAL)

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This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondent for specific performance of the agreement to sell executed by the appellants in favour of the respondent. Following questions have been raised in this appeal by learned counsel for the appellants:-

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i) “Whether the trial court as well as the lower appellate court was justified in relying upon the false and fabricated document/agreement?

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ii)Whether the courts below were justified in not giving

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any finding on the objection raised by the appellantsdefendants in their reply as well as evidence?

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RSA No.3044 of 2007 (O&M)

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iii)Whether the finding of the trial court as well as the

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lower appellate court is erroneous?

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iv)Whether the findings of the courts below are based on

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conjectures and surmises and the same is not sustainable in the eyes of law?

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v) Whether the ld. trial court was justified in declining the application of the appellants-defendants for examining the hand writing expert and even not appreciated by the ld. appellate court?”

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It would be seen that the questions posed are all questions of

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fact. Learned counsel has taken me not only through the findings but also through the evidence and, with his assistance, I have also seen the various admitted signatures of the appellants. In my opinion, it cannot be held that the findings arrived at by the Courts below are either based on no evidence or on such misreading of evidence so as to render them perverse. Apart from this, learned counsel for the appellants has also raised a question that an application for additional evidence was filed in the case for permission to examine the hand writing expert but the same was rejected by the trial court by holding that he had seen the signatures of the appellants and they appear to be similar to those on the agreement to sell.

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Learned counsel for the appellants has relied upon the case of State (Delhi Administration) v. Pali Ram reported as AIR 1979 SC 14 and more particularly to para 29 thereof which is mentioned as follows:-

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“29. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted

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RSA No.3044 of 2007 (O&M)

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writing, even without the aid of the evidence of any hand writing expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheetanchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.”

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Thus learned counsel for the appellants has argued that the trial court should not have based his findings only on his own observations. Apart from the fact that the said judgment relates to a criminal matter where the onus of proof is much heavier, it also deserves to be mentioned here that no good cause was shown by the appellants in their application under Order 18 Rule 17-A (as it then existed) to justify the grant of an opportunity to lead additional evidence at the stage when the case was at conclusion.

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Consequently, this appeal is dismissed.

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No costs.

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As the main case has been disposed of therefore all the pending civil miscellaneous applications in the case also stand disposed of.

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( AJAY TEWARI ) JUDGE

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July 24, 2009 ashish

Ashwani Kumar and Anr. v. Harvinder Singh

Case brief

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Ashwani Kumar and Anr. v. Harvinder Singh

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