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Palaniammal v. Palaniswami
Summary of Opinion
Factual and Procedural Background
The petitioners (plaintiffs) sued for specific performance seeking a direction to the respondents (defendants) to execute a sale deed based on an agreement of sale dated 19.8.1981 (Ex.A2) and a receipt dated 30.1.1984 (Ex.A4). The respondents denied execution of those documents. The trial Court dismissed the suit after comparing signatures by invoking Sec. 73 of the Evidence Act. The plaintiffs appealed (A.S. No. 34 of 2001). While that appeal was pending, the plaintiffs filed an application before the first appellate Court seeking appointment of a handwriting expert to compare signatures in Ex.A2 and Ex.A4 with admitted signatures in Ex.A3. The appellate Court dismissed that application on the ground of delay. The plaintiffs filed the present civil revision challenging the dismissal of the application.
Legal Issues Presented
- Whether the first appellate Court may appoint a handwriting expert to compare disputed and admitted signatures during the pendency of an appeal, even though the trial Court previously compared the signatures under Sec. 73 of the Evidence Act.
- Whether delay in seeking expert comparison before the trial Court necessarily indicates lack of bonafide such that the appellate Court should refuse to appoint an expert.
- What relief, if any, should compensate for delay in making the application and what procedural directions (if any) are appropriate when appointing an expert at the appellate stage.
Arguments of the Parties
Petitioners' (Plaintiffs') Arguments
- The lower Court dismissed the application only on the ground of delay.
- Although steps were not taken before the trial Court, the trial Court itself compared signatures invoking Sec. 73 of the Evidence Act, and on that comparison accepted the defence.
- Because the trial Court's comparison adversely affected the plaintiffs and that grievance is raised on appeal, it is appropriate for a handwriting expert to be appointed to compare the signatures before the appeal is heard by the first appellate forum.
Respondents' (Defendants') Arguments
- The suit was filed in 1990 and the defendants had specifically denied execution of the agreement and receipt in their written statement, yet the plaintiffs took no steps to obtain expert opinion during the trial.
- The trial Court already compared the signatures by invoking Sec. 73 of the Evidence Act.
- The appellants did not indicate in their appeal that the case required sending documents for expert opinion.
- The application exhibited not only delay but a thorough lack of bonafide, and therefore the lower Court rightly dismissed it.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court reviewed the procedural history and the competing submissions. It acknowledged that:
- The suit was founded on written documents (agreement Ex.A2 and receipt Ex.A4) whose execution was denied by the defendants.
- The plaintiffs did not seek expert comparison at trial, and the trial Court itself undertook a comparison invoking Sec. 73 of the Evidence Act.
The Court examined the trial Court's comparison and concluded that the comparison had not been properly done. The Court found no legal infirmity in filing an application for expert opinion before the first appellate forum during the pendency of the appeal. It held that the fact that the trial Court had performed a comparison under Sec. 73 did not preclude the appellate Court from sending the documents for expert opinion. The Court distinguished delay from lack of bonafide, finding that although there was delay in applying for expert assistance at the trial stage, that delay did not establish lack of bonafide. Consequently, the Court found it appropriate to allow appointment of a handwriting expert, but to compensate for the delay by imposing reasonable costs and by directing expedition of the appeal by the appellate Court.
Holding and Implications
Holding: The civil revision petition is allowed and the order of the lower Court dismissing the application for appointment of a handwriting expert is set aside. I.A. No. 37 of 2002 in A.S. No. 34 of 2001 is allowed on condition that the petitioners/plaintiffs pay costs of Rs. 3,000/- (Rupees three thousand) directly to the counsel for the respondents/defendants within four weeks, failing which the application shall stand automatically dismissed.
Additional directions and consequences:
- The lower appellate Court is directed to dispose of the appeal within three months from the date of receipt of a copy of this order.
- No further costs were awarded by the Court; the connected CMP is closed.
Implications: The decision grants the plaintiffs an opportunity to obtain expert comparison at the appellate stage despite prior comparison by the trial Court, subject to payment of specified costs and time limits. The opinion does not purport to lay down any new precedent beyond the disposition in this case.
What is challenged herein is an order of the learned Additional District Judge cum Chief Judicial Magistrate, Karur dismissing an application filed by the petitioners herein for appointment of a handwriting expert to compare the signatures in the agreement of sale dated 19.8.1981 marked as Ex.A2 and the signature in the receipt dated 30.1.84 marked as Ex.A4 along with the signatures in the admitted documents dated 30.1.84 marked as Ex.A3, on the basis of which the relief was sought for by the petitioners/plaintiffs.
2. It was a suit filed filed by the petitioners herein for specific performance seeking a direction to the respondents/defendants to execute a sale deed on the basis of an agreement of sale dated 19.8.81 and the receipt dated 30.1.84 The execution of those documents was flatly denied by the respondents/defendants. On trial, the suit by the revision petitioners was dismissed. Aggrieved plaintiffs have brought forth an appeal in A.S No. 34 of 2001 pending on the file of the learned Additional District Judge. During the pendency of the appeal, the instant application seeking the appointment of an handwriting expert to compare the signatures found in Ex.A2 agreement and Ex.A4 receipt along with the admitted signatures found in the document under Ex.A3 was filed. On contest, the said application was dismissed. Aggrieved plaintiffs have brought forth this revision.
3. Arguing for the petitioners, the learned Counsel would submit that the lower Court has dismissed the application only on the ground of delay; that it is true that steps were not taken by the plaintiffs when the suit was pending before the trial Court, but a comparison was done by the trial Court invoking Sec. 73 of the Evidence Act; that on comparison, the trial Court has accepted the defence, which grievance was ventilated before the first appellate forum, and hence, it was a fit case where a handwriting expert has got to be appointed to compare the signatures before the matter is heard by the first appellate forum.
4. Opposing the above contentions of the petitioners' side, the learned Counsel for the respondents would urge that the suit was filed in the year 1990; that even in the written statement, the execution of the agreement and the receipt was specifically denied by the defendants, but no steps were taken by the plaintiffs all along; that after trial, the trial Court has well compared the signature invoking Sec. 73 of the Evidence Act; that when the appeal was filed by the aggrieved plaintiffs, they have not stated that it is a fit case for sending those documents for expert's opinion; that it was not only the case of delay, but it was a thorough lack of bonafide; that the lower Court has rightly dismissed the application, and hence it is a fit case where the order of the lower Court has got to be sustained.
5. After careful consideration of the rival submissions, the Court is of the view that it is a fit case where a handwriting expert has got to be appointed for the purpose of comparison of the signatures found in the agreement and the receipt marked as Exs.A2 and A4 respectively.
6. It was a suit for specific performance, based on a written agreement of sale. It is true that the execution of the said agreement and the receipt for payment of consideration marked as A-2 and A-4 respectively was flatly denied by the defendants. It is also true that no steps were taken by the plaintiffs' side for sending those documents for expert's opinion. In such circumstances, the trial Court invoking Sec. 73 of the Evidence Act has compared the signatures. A perusal of the judgment of the trial Court would clearly indicate that the said comparison was not properly done. On the dismissal of the suit, the plaintiffs have brought forth an appeal, during the pendency of which the instant application has been filed. The Court is unable to notice any infirmity or illegality in filing such an application before the first appellate forum. Merely because of the reason that the trial Court has compared the admitted signature and the disputed signature invoking Sec. 73 of the Evidence Act, there is no bar or ban for the first appellate Court sending the documents for canvassing the expert's opinion. Under such circumstances, an opportunity has got to be given for the comparison of the documents by a handwriting expert. The Court is unable to notice any lack of bonafide, but, there was delay. The Court is of the view that the delay that was caused in making such a request before the trial Court cannot be equated to the lack of bonafide. Therefore, it is a fit case where the delay has got to be compensated by way of awarding reasonable costs along with a direction to the first appellate Court to dispose of the appeal within a stipulated time.
7. In the result, this civil revision petition is allowed, setting aside the order of the lower Court. I.A No. 37 of 2002 in A.S No. 34 of 2001 is allowed on condition that the petitioners/plaintiffs shall make payment of costs of Rs. 3,000/- (Rupees three thousand) directly to the Counsel for the respondents/defendants, who is appearing in the appeal before the first appellate Court, within four weeks herefrom, failing which the application shall stand automatically dismissed. That apart, the lower appellate Court is directed to dispose of the appeal within a period of three months from the date of receipt of copy of this order. No costs. Consequently, connected CMP is closed.
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