ORDER
S. Rajeswaran, J.
1. This Revision Petition has been filed against the order dated 1.11.2004, passed in I.A. No. 1531/2004 in O.S. No. 275/2004, on the file of the District Munsif Court, Tiruppur.
2. The defendant in the suit is the Revision Petitioner.
3. For the sake of convenience, the parties are referred to as they are arrayed in the suit.
4. Plaintiff filed O.S. No. 233/1998 for specific performance of the sale agreement entered into between the plaintiff and the defendant on 15.2.1994. The defendant filed written statement on 10.6.1999 wherein in para 3 it was specifically stated that the alleged sale agreement dated 15.2.94 is a forged document and fabricated by the plaintiff to grab the defendant's property and also for unlawful gain and the defendant stoutly denied his signature in the sale agreement dated 15.2.94.
5. Thereafter defendant filed I.A. No. 1531/2004 under Section 45 of the Indian Evidence Act to direct the handwriting and finger print expert described in the petition namely, handwriting finger print expert, Forensic Sciences Department, Govt. of Tamil Nadu, Chennai.4 to inspect suit agreement in the court premises itself in the presence of some responsible court official and direct the expert to take photographs of the suit agreement in the presence of the responsible officer of the court and to compare the disputed signatures in the suit agreement dated 15.2.1994 with admitted signature of the defendant and direct the expert to file a detailed report in this regard. By order dated 1.11.2004, the trial court dismissed the I.A. No. 1531/2004 and aggrieved by the same the above Revision Petition has been filed under Article 227 of the Constitution of India.
6. Heard the learned Counsel for the defendant/Revision Petitioner and the learned Counsel for the plaintiff/respondent. I have also gone through the documents filed and the judgments referred to by them in support of their submissions.
7. Learned Counsel for the defendant/revision petitioner vehemently contended that the trial court erred in law and facts to dismiss the I.A. No. 1531/2004 and for this contention he relied on the following judgments:
(1) 1968 (II) .L.J. 48 Narasimhan v. Narayana Chettiar
(2) 1976(I) M.L.J. 11 Doraiswamy Gounder v. parayammal
(3) 84 L.W. 348 Ramaswamy Konar v. Karuppa Konar
(4) 1996(I) L.W. 255 Utham Prabhat Industries, etc. v. P. Subramaniam, etc.
(5) 97 L.W. 222 J.S. Summary of Cases (Extracts) Bank of India v. C.T. Rajagopalan
(6) : 1998(3)CTC139 Krishtama Naidu, K. v. M. Govindan
(7) : 1998(3)CTC140 Irulappan v. Meenakshisundaram
(8) : 1998(3)CTC650 Kuppanna Gounder v. R.Sivakami
(9)AIR 2001 Ori. 185 Bhagirati Sahu v. Akapatti Bhaskar Patra
(10) 2003(3) L.W. 649 Palaniammal and Ors. v. Palaniswami and Ors.
(11) : (2004)4MLJ604 Devaraju Padayachi v. Sivasankara Padayachi
(12) : 2005(2)CTC445 Vijayakumar, S.N. v. S.R. Velusamy
(13) : (2005)3MLJ268 Chinnappan v. Chinnammal
(14) : (2005)2MLJ603 P. Sood & Co. v. Peerchand Misrimalji Bhansali.
8. Per contra, learned Counsel for the plaintiff/respondent submitted that none of the judgments are relevant to the point at issue in the I.A. No. 1531/2004 and prayed for dismissal of Revision Petition. He further supported the trial court's order that the I.A. No. 1531/2004 was filed belatedly, that too without containing the list of documents, admitting the signature of the defendant. He also submitted that it is not for the defendant to take out an application under Section 45 of the Indian Evidence Act as the onus is only on the plaintiff to prove that the signature found in the agreement of sale is the signature of the defendant.
9. First let me consider the decisions relied on by the defendant/revision petitioner.
(1) In 1968(II) M.L.J. 48 (cited supra), this Court held as follows:Repeated instances have come to the notice of this Court when applications are lightly made for sending original documents on which suits are filed, like promissory notes and mortgage bonds, to the handwriting experts, the Court itself losing the custody of the documents. Receipts containing signatures, the genuineness of which are in dispute are similarly sent to handwriting experts. I am clearly of the opinion that this is a highly objectionable and a very bad procedure. Under no circumstances should a Court permit or allow the documents to go out of its custody, as such an evil practice is attendant with various risks which are obvious to be mentioned. In the case of enquiries by Commissioners or proceeding by Receivers, who are officers of Court, they are permitted to have access to documents, as they are under the direct control, supervision and jurisdiction of the Courts which appoint them, and there is thus ample safeguard when original documents are taken by the Commissioners or the Receivers. In my view the proper procedure in such cases would be only to permit the handwriting expert to inspect the document in the Court premises in the presence of some responsible officer of the Court, and also if necessary permit the expert to have photographic copies of documents in the presence of the responsible officer of this Court. Any lapse in taking the necessary safeguards in this direction may result in miscarriage of justice, besides creating complications.
10. In the above judgment, this Court has pointed out the procedure that should be followed by the trial court while dealing with an application filed under Section 45 of the Indian Evidence Act. In the very same judgment, this Court has found fault with the tendency of litigants filing application for examination of documents by handwriting experts at a late stage protracting and holding up the proceedings.
11. In 84 L.W. 348, this Court following the decisions reported in (T. Narasimha v. Narayana Chettiar and Anr.) held as follows:
This revision is directed against an order of the Lower Court refusing to send the suit promissory note and the thumb impression of the defendant taken in court to the Finger Print Expert at Vellore. The lower court relied on the decision of this Court relied on the decision of this Court in T. Narasimha v. Narayana Chettiar and Anr. for rejecting the petitioner's application for sending the suit promissory note to the Finger Print Expert. In that case, Ramamurthi J. has expressed that the practice of sending original documents in the custody of the court to the hand writing expert is highly objectionable and a very bad practice and that under no circumstances, should a court permit or allow the documents to go out of its custody as such an evil practice is attendant with various risks. The learned Judge points out the proper procedure in such cases to be only to allow the handwriting expert to inspect the document in the court premises itself in the presence of some responsible court official and also, if necessary, to permit the expert to have photographic copies of the same, for the purpose of his examination. This decision was referred to by Kailasam J. in C.R.P. 487of 1969. In that case, the promissory note was contended to be a forged one and for examination of the stamp in the promissory note a request was made to the trial Court for sending the promissory note to the Master, Indian Security Press, Nasik for finding out whether the stamps are genuine and proper. On the facts of that case, the learned Judge distinguished the case in T.A. Narasimha v. Narayana Chettiar I.L.R. 1968 Mad. Page 805 without any dissent with the view expressed by Ramamurthy J. After hearing the counsel on either side, I also feel that the procedure to be adopted in cases as there is the one as suggested by Ramamurthi J. With due respect, I am in entire agreement with the view expressed by Ramamurthi,J. In that case. If the petitioner wants to have the document examined by a Finger Print Expert, it is open to him to have the Finger Print Expert examine the document in court and to have photographic copies of the same for the purposes of his investigation. The order of the lower court in the circumstances is quite valid and does not call for an interference from this Court....
12. 97 L.W. 222 , this Court observed as follows:
1. The court below will give numbers, not as exhibits in the case to the documents filed along with the petition I.A. No. 11141 of 1980;
2. The plaintiff will be permitted to summon an expert of its choice within a time to be stipulated by the court below to examine these documents in the presence of an officer of the court;
3. The court below will take the signature of the first defendant on a date to be fixed by it, and make them available to the Hand Writing Expert, along with the admitted signatures and the documents filed along with the petition for his opinion;
4. The plaintiff is at liberty to submit a list of the documents already marked in the case, which are stated to bear the admitted signatures of the first defendant and have these documents also compared with the other signatures for the purpose of expression of the opinion by the Hand Writing Expert.
13. In 1976(I) M.L.J. 11 , this Court held as follows:
7. The question for consideration is whether the document could be parted with in favour of a finger-print expert, whether a private or a Government one. The decisions of Ramamurti, J., and Ramanujam, J. which have been referred to are clear on the point that it is unsafe to part with the documents in the course of the trial. The learned Judges did not make any distinction between private and Government experts. It is true that Raghavan, J., has permitted the handing over of the documents to Government expert. I do not know the circumstances under which the learned Judge felt it possible to part with the document in favour of the Government expert. The consideration that weighs in not allowing the document to be handled by any other person is only for the purpose of ensuring the safety of the document or prevent its being tampered with. It will have to be considered if there will be no undue risk if the document is parted with in favour of a Government expert. As far as private experts are concerned, the decisions are uniform. As far as Government expert is concerned unless it is not possible for the expert to examine the genuineness or otherwise of the endorsements without taking in from the custody of the Court, it would not be desirable to allow the document to be handled by him outside the Court. I think that in the circumstances it is proper and desirable to have the endorsement examined by the Government expert, but he will do it in the presence of a Court official in the District Munsif's Court, Salem. If he feels it necessary, he may be permitted to take photographic copies of the document....
14. In the above decision, this Court observed that as far as the Government Expert is concerned, if it is possible for the expert to examine the genuineness or otherwise of the endorsement without taking it from the custody of the court, then it would not be desirable to allow the document to be handled by him outside the court.
15. In 1996(1) L.W. 255 , this Court held as follows:
10. When the very object of examining the disputed documents within the Court premises is not possible due to the genuine difficulties expressed by the expert, certainly the Court has to find out the alternate way for achieving the object for the purpose of doing justice....
12. In the result, Thiru B. Namasivayam, is is appointed as Commissioner, in whose presence the disputed documents have to be examined by the hand-writing expert, deputed by the Director of the Forensic Science Department, Mylapore, Madras-4. Rs. 2,000/- is fixed towards the remuneration of the Commissioner payable to him direct by the plaintiff/applicant. The documents can be handed over to the Commissioner for production before the expert for the investigation, subject to the following conditions:
1. The disputed original documents, sought to be examined, shall be photocopied before the Second Assistant Registrar (Original Side) before handing over the same to the Commissioner. These photocopies will be retained in the Court along with the case papers.
2. The Commissioner shall address the Director of the Tamil Nadu Forensic Science Department, Mylapore, Madras to fix a date and time for the examination of the documents in his presence, as per the orders of this Court, and after fixing the time, he shall receive the Court records either on the same day or one day in advance, from the court.
3. A list will be prepared for the original disputed documents and the documents given for comparison to be delivered to the Commissioner and the same shall be signed by the Advocate Commissioner.
4. The disputed original documents and the documents given for comparison with the sample signatures or hand-writings, will be enclosed in two separate envelopes and sealed in the presence of the Commissioner, who has to acknowledge the contents of the envelopes and also the receipt of the same. These two sealed covers and the letter of requisition of the Second Assistant Registrar (Original Side) with a sample seal, shall be enclosed in another cover, which will also be sealed in the presence of the Commissioner, to whom this cover will be delivered by the Second Assistant Registrar (Original Side).
5. The Commissioner shall deliver this envelope to the Director, Tamil Nadu Forensic Science Department, Mylapore, Madras, and be present in the place of investigation of this documents throughout to ensure that the examination of the documents, including the photocopying, was done in his presence. After the examination of the documents is over, the office of the Director, Tamil Nadu Forensic Science Department, shall enclose the documents in a sealed cover with their covering letter and hand over to the Commissioner, who has to return all the documents received by him to the Second Assistant Registrar (Original Side).
6. The Director, Tamil Nadu Forensic Science Department, Mylapore, shall send his report after the investigation, recording his opinion, in a sealed cover, direct to the Second Assistant Registrar (original Side) of this Court. As fixed originally, the Director, Tamil Nadu Science Department, is entitled to Rs. 1,000/- towards his remuneration.
16. In the above decision, this Court dealt with the procedure to be followed in detail when the expert expresses his inability to verify the disputed documents within the court premises.
17. In 1998(III) CTC 650, this Court held that delay cannot be attributed to the applicant praying for an appointment of commissioner to take the disputed Will to handwriting expert to compare the same with admitted signature as the application was filed in April 1998 itself immediately after filing the reply statement in March 1998 wherein for the first time a specific plea of forgery and fabrication has been put forward.
18. In 1998(III) CTC 140 , this Court held as follows:
4. I may mention, at the out set, that the prayer in the application filed by the petitioner in I.A. No. 190 of 1997 before the court below is not sustainable, in view of the judgments rendered by this Court earlier in T.A. Narasimhan v. Narayana Chettiar and Anr. and Ramaswamy Konar v. Karuppa Konar 84 L.W. 348 C.R.P. No. 1306 of 1970 dated 26.11.1970. The point decided in these cases is as follows:
The practice of sending original document in the custody of the Court to the handwriting expert is highly objectionable and a very bad practice and under no circumstances should a court permit or allow the document to go out of its custody, as such an evil practice is attendant with various risks. The proper procedure is to allow the handwriting expert to inspect the document in the court premises itself and if necessary to permit the expert to have photographs of the same for the purpose of examination. Moreover, following these decisions, the Registrar of this Court sent a circular to the lower Courts as well as the Director of Forensic Science Department intimating that under no circumstances the court should send the documents for examination by the expert from out of its custody. The relevant portion of the circular are given below:
I am directed to state that in G.O. Ms. No. 194 Home (F.S) Department, dated 28.1.1986, the Government have stated that in order to verify the documents referred by the Civil Courts, the Government in G.O. Ms. No. 2053, Home, 21.3.1985, sanctioned certain additional staff to the Documents division of the Forensic Science Department. Therefore when it is evident that additional members of staff have been sanctioned exclusively for the documents division of the Forensic Science Department to verify the documents referred by the Civil Courts, it should not be difficult for the said department to send their experts to the Courts concerned for examination of questioned documents and giving opinion. In this connection, kind attention is also invited to the law laid down by the High Court in T.A. Narasimhan, V. Narayana Chettiar and Anr. wherein it has been held that under no circumstances should a court permit or allow the document to go out of its custody, as such an evil practice is attendant with various risks which are too obvious to be mentioned. The proper procedure in such cases would be only to permit the handwriting expert to inspect the documents in the court premises itself in the presence of some responsible officer of the court and also if necessary permit the expert to have photographic copies of documents in the necessary safeguards in this direction may result in miscarriage of justice, besides creating complications. I am therefore, directed to request that the handwriting expert may be deputed to courts to inspect the documents in the court premises and if necessary, to take photographic copies to of the disputed documents in the presence of some responsible officer of the Court for the said purpose. In view of the above, I see no reason to interfere with the order of the lower court, especially when the lower court feels that the application was filed belatedly, in order to drag on the proceedings.
19. This Court in the above decision has categorically held that as per the decision reported in 1968(II) M.L.J. 48 , 84 L.W. 348 and the circular issued by the Registrar of this Court, under no circumstances, this Court shall send the document for examination by the expert out of its custody.
20. In : 1998(3)CTC139 (cited supra), this Court held as follows:
1. Petitioners are aggrieved by the order of the trial Court, declining to permit the proposed Advocate Commissioner to take and deliver a suit document to the Finger Print Bureau for examining and reporting on the disputed thumb impression on the document.
2. The trial Court has held that the document cannot be taken out of court. The request by the petitioners was to send the document to the Finger Print Bureau, which is a department of the Government. The petitioners may be directed to file a photostat copy of the disputed document, which may be retained in the record and thereafter the original document can be sent to the Finger Print Bureau under their safe custody either through an official of that department or through an official of the Court. If there is any difficulty in following that mode, the delivery of the document can be effected through an Advocate Commissioner.
21. In AIR 2001 Ori.185 , the Orissa High Court held as follows:
11. In the case at hand the plaintiff-opp. Party undisputed based his claim on the document (Ext.2), a deed of agreement for sale of the disputed house which has been challenged by the defendants-petitioners herein on the ground that it was a forged and fabricated document wherein the signature of defendant No. 1 has also been forged and accordingly an application for sending the disputed signature for scientific examination was made. In the circumstances the learned trial Court ought to have as a matter of prudence sent the disputed document for the opinion of the expert after a scientific comparing with the disputed writing with the proved or admitted writing with regard to point of similarity or dissimilarity in the two sets of writing. This Court should not have taken on to itself the task of comparing the handwriting for the proper assessment of the value on the total evidence. Proof of handwriting is in nature of comparison of the admitted and the disputed signature or handwriting. Section 73 of the Evidence Act authorises the Court to compare such handwriting in order to come to its own conclusion, but it is always safe for the Court to take the aid of handwriting expert who were equipped and have the expertise to scientifically compare such handwriting with reasons and place their report which may induce the Court to form its own judgment by its own observation of those materials. In view of the settled position of law in the facts and circumstances of the case when the entire case is based on Ext.2, the alleged deed of agreement to sale, the learned trial Court ought to have as a matter of prudence though it appropriate to allow the application and send the document for handwriting expert.
22. In the above decision the Orissa High Court observed that it is always safe for the court to take the aid of handwriting experts who have the expertise to scientifically compare such handwriting with reasons even though Section 73 of the Indian Evidence Act authorises the court to compare such handwriting in order to come to its own conclusion.
23. In 2003(3) L.W. 649 , this Court has held as follows:
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 Section 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 Section 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.
24. In the above judgment this Court has held that merely because of the reason that the trial court has compared the admitted signature with the disputed signature invoking Section 73 of the Indian Evidence Act, there is no bar or ban for the first appellate court in sending the documents for expert opinion.
25. In : (2004)4MLJ604 (cited supra), this Court held as follows:
5. ... In such circumstances, I am to point out that if the disputed document and the alleged signature of the decree holder in the receipt are examined by a handwriting expert and opinion is received, it would be easier for the Principal District Munsif, Cuddalore to have an opinion about the truth and genuineness of the disputed receipt and the alleged signature of the decree holder therein or otherwise. Such an expert opinion would give much more clarity for arriving at a decision upon the truth and genuineness of the disputed receipt. But, unfortunately, neither the decree holder nor the judgment debtor has taken steps to get such expert opinion before the Principal District Munsif, Cuddalore. In such circumstances, irrespective of the fact that the Judge can compare the signature, it would be better for the Judge viz., Principal District Munsif, Cuddalore to get the expert opinion after examination of the disputed receipt and comparison of the signature therein with the admitted one of the decree holder which may help further to find out the truth and genuineness of the signature.
26. In the above decision this Court held that irrespective of the fact that the Judge can compare the signature, it would be better for the Judge to get the opinion of the expert after examination and comparison of the signature with the admitted one.
27. In : 2005(2)CTC445 (cited supra), this Court held as follows:
3. The provision under Section 73 of the Indian Evidence Act reads as follows:
73.Comparison of signature, writing or seal with others admitted or proved:- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
This Court may direct any person present in court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written by such person.
4. Thus it is clear that the said provision of law gives ample power to the trial Court to compare the signature in the disputed document and the admitted signatures of the revision petitioner and then come to an independent conclusion based on such comparison. If in any event, the trial Court finds it difficult to arrive at any definite conclusion even after such comparison, it is open to either of the parties to take the document to a handwriting expert for comparison and offering his opinion on this aspect of the matter. Hence this Court is of the considered view that the trial Court may be suitably directed to adopt such course as stated above and dispose of the suit at an early date.
5. Thus the Civil Revision Petition is ordered as here under:
(i) The trial Court is directed to compare the disputed signature of the revision petitioner with that of the admitted signatures to arrive at the right conclusion. If in any event, the trial Court is unable to reach any definite conclusion after comparison of such signatures of the revision petitioner and the signature in dispute, a suitable direction may be given to the revision petitioner/defendant to take the document to the forensic laboratory for comparison by a handwriting expert in order to obtain the expert opinion.
(ii) The trial court is also directed to dispose of the suit within three months from the date of receipt of a copy of this order.
28. In the above judgment, this Court held that Section 73 of the Indian Evidence Act gives ample powers to the trial court to compare the signature with the disputed document and the admitted signature to come to an independent conclusion. If the trial court finds it difficult to arrive at a definite conclusion, it is open to take the document to a handwriting expert for comparison and offering his opinion.
29. In : (2005)3MLJ268 (cited supra), this Court held as follows:
12. Therefore, it is clear that the crux of the entire case rests upon the document Ex.X-1 and it is very much relied on by the plaintiff in support of her case that she is the daughter of Perumal Gounder born through his wife Perumayee Ammal to whom admittedly, the suit properties belonged to in view of the purchase as per the sale deeds referred to above. Inasmuch as the signatures of the second defendant, first defendant and his two sons in the said agreement Ex.X-1 and also the thumb impression of the plaintiff in that document is challenged, it is just and proper that the document is to be tested and examined by the Handwriting Expert to find out as to whether the signatures and thumb impression claimed to be the signatures of the second defendant, first defendant and his two sons and the thumb impression of the plaintiff, are that of the second defendant, first defendant and his two sons and of the plaintiff. In that view, the defendants have made out their case for sending the document Ex.X-1 to the handwriting Expert by appointing advocate-commissioner mainly for the purpose of comparing the signatures and thumb impression in the document Ex.X-1 in that the document is very much relied upon by the plaintiff to show and find out as to whether the plaintiff is the daughter of Perumal Gounder born through his wife Perumayee Ammal to whom it is alleged, the suit properties belonged to as the self-acquired properties. It follows, the dismissal of the petition by the trial Court by stating that the suit is pending for more than 7 years and therefore, there is no necessity to compare the signatures of the second defendant, first defendant and his two sons and the thumb impression of the plaintiff along with admitted signatures and thumb impression, cannot be said to be proper and the trial Court has committed an error in the approach made for dismissing the petition. Therefore, the order of the trial Court is to be set aside.
30. In the above decision, this Court observed that when the crux of the entire case rests upon a particular document, which is challenged by the other side that the document is forged, it is just and proper that the document is to be tested and examined by the handwriting expert to find out the truth and this Court has also observed that the delay of more than 7 years need not be held against the petitioner for filing the application belatedly.
31. In , a Division Bench of this Court held that when the defendant denied the signature in the written statement, the plaintiff should take steps to ascertain the genuineness of the disputed signature by sending the same to a handwriting expert.
32. From the above judgments, the following principles have emerged:
(1) Section 73 of the Indian Evidence Act authorises the court to compare the disputed signature with the admitted signature in order to come to its own conclusion.
(2) It is always safe for the court to take the aid of handwriting expert to have the expertise to scientifically compare such handwriting with reasons.
(3) The practice of sending original documents in the custody of the courts to the handwriting experts is a highly objectionable one and a very very bad procedure.
(4) The proper procedure would be to permit the handwriting expert to inspect the document in the court premises itself in the presence of some responsible officers of the court.
(5) If necessary, the expert may be permitted to have photographic copies of documents in the presence of the responsible officers of the court.
(6) When examination of the disputed documents within the court's premises, is not possible due to genuine difficulties expressed by the expert, the court has to find out the alternative way of achieving the object for the purpose of doing justice.
(7) In such circumstances as mentioned above, the application has to be treated as an application for an appointment of the commissioner in whose presence the examination of the disputed document has to be conducted by the expert.
(8) When the investigation cannot be conveniently conducted within the premises of the court and the same has to be carried out in the laboratory of the Forensic Department of the Government of Tamil Nadu, it is necessary to appoint a commissioner to conduct the investigation of the document in his presence.
(9) Filing application for examination of documents by handwriting expert at a late stage thereby protracting and holding up the proceedings is highly objectionable.
(10) Merely because of the reasons that the trial court has by itself compared the admitted signature and the disputed signature invoking Section 73 of the Indian Evidence Act there is no bar or ban for the first appellate court for sending the documents to get the expert opinion.
(11) Expert opinions could give much more clarity for arriving at a decision upon the truth and genuineness of a disputed document.
(12) When the defendant denies the signature in a particular document which is very much relied on by the plaintiff, it is for the plaintiff to take steps for examination of the disputed signature by sending the document to a handwriting expert.
33. In the light of the legal principles and correct procedure as emerged from the above decisions, let me consider the facts of this case.
34. The plaintiff filed O.S. No. 275/2004 for specific performance of the sale agreement dated 15.2.1994 entered into between the plaintiff and defendant. The defendant filed written statement on 10.6.1999 wherein in para 3, he specifically alleged that the sale agreement dated 15.2.94 is a forged document and the signature in the sale agreement dated 15.2.94 is a forged one. When the document namely, the sale agreement dated 15.2.94 was disputed by the defendant the onus was shifted to plaintiff only to prove that the sale agreement dated 15.2.94 is a genuine document.
35. But the defendant filed I.A. No. 1531/2004 on 19.10.2004 under Section 45 of the Indian Evidence Act to examine the sale agreement dated 15.2.94 by a handwriting expert. The trial court dismissed this application on the ground that the application was a belated one, no document containing the admitted signature of the defendant was filed along with the application and it is filed along with the application and it is for the plaintiff to prove that the sale agreement dated 15.2.94 is a genuine document which was signed by the defendant. These reasons were assailed by the learned Counsel for the revision petitioner/defendant by relying on the decisions above referred to.
36. The prayer in I.A. No. 1531/2004 is only to direct the handwriting expert from the Forensic Department of Tamil Nadu Government to inspect the suit agreement in the court premises itself to give his expert opinion. Therefore the procedure to be adopted in a case where an expert is called for to give his opinion by comparing the signatures is not at all an issue before the trial court. The trial court considered the fact that the application was filed belatedly by observing that the written statement was filed as early as on 10.6.99, containing the averment that the signature in the sale agreement dated 15.2.94 was not his and it is a forged one. The trial court has also referred to the fact that the application has been filed after 5 years and therefore it is not a bona fide one.
37. It is not in dispute that the written statement was filed on 10.6.99 and the application was filed on 19.10.2004 only. But in the affidavit filed in support of I.A. No. 1531/2004 no explanation much less an acceptable explanation was given by the defendant for taking out the application under Section 45 of the Indian Evidence Act after nearly more than 5 years. Further, even though it was stated in the affidavit that the signature in the sale agreement dated 15.2.94 should be compared with his admitted signature by handwriting expert, there was no mention about the document containing his signature which was admitted by him and which should be compared with the disputed signature. In such circumstances the trial court has rightly observed that the application lacks bonafide. This Court in T.A. Narasimhan's case (cited supra) has deprecated the practice of filing applications for examination of documents by handwriting experts at a late stage and thereby protracting and holding up the proceedings. This decision is applicable to the facts of the present case and I do not find any illegality nor infirmity in the order of the trial court.
38. Moreover, as rightly pointed out by the trial court, when the signature in the sale agreement dated 15.2.1994 is disputed as forged by the defendant, it is for the plaintiff who vouches for the genuineness of the document to take steps to send the document for getting the opinion of the handwriting expert to prove his case. Further the opinion of the handwriting expert alone is not the deciding factor in finding out the genuineness of the sale agreement dated 15.2.94 and the same could be tested by examining the attesting witnesses and also in some other modes and it is the duty of the plaintiff to establish his case by letting in sufficient oral and documentary evidence.
39. Therefore I do not find any merit in the above Civil Revision Petition, warranting interference under Article 227 of the Constitution of India.
40. In the result, the C.R.P. is dismissed. No costs. C.M.P. No. 941/2005 is also dismissed.