C.L. Ramaiah thevar Vs. P.C. Balarama Raja - Court Judgment

Excerpt:
civil - specific performance - section 115 (1) of code of civil procedure, 1908 and sections 4, 45 and 47 of evidence act, 1872 - suit filed by plaintiff for specific performance of contract on basis of agreement for sale alleged to have been executed by defendant - defendant denied execution - application filed by defendant to send same to get expert opinion - said documents returned without any opinion expressed in absence of standard materials - petition filed by plaintiff for examination by expert - same rejected by lower court - lower court did not commit any illegality so as to warrant interference - petitioner did not get any further material so as to get expert opinion - lower court right in holding that application without merit and intention of petitioner is only to protract litigation. - - lakshmana perumal, assistant with seals intact and with your letter second cited on 20.3.98 by registered post without any seals were carefully and thoroughly examined in this department but in the absence of enough standard materials it is not possible to express any reliable opinion on the red enclosed signatures stamped and marked q1 to q12 on a comparison with the red enclosed signatures similarly stamped and marked s1 to s36. it is considering the same documents werereturned on the ground stating that in the absence of enough standard materialsit is not possible to give reliable opinion. 115 need not amount to 'any case which has been decided'.the statements of objects and reasons of the code of civil procedure (amendment) act, 1976 (act 104 of 1976) clearly suggests that the legislature did not intend to alter the meaning of any case which has been decided.order1. defendant in o.s.no.214 of 1993 on the file of principal subordinate judge's court, tenkasi is the revision petitioner. 2. suit filed by plaintiff was one for specific performance of contract on the basis of agreement for sale, alleged to have been executed by defendant. defendant denied execution of agreement for sale. to prove that thumb impression in agreement for sale is not of defendant, an application was filed by defendant to send the same to get expert opinion, in i.a.no.718 of 1996. some of the admitted signatures along with disputed thumb impression were also sent for getting expert opinion to forensic science department, government of tamil nadu. on 15.4.1998, all the papers were returned to court with covering letter which reads thus, 'fromthe director and chemical examiner to government, forensic sciences department, forensic house), kamarajar salai, madras-600 004. tothe principal subordinate judge, tenkasi, tirunelveli district. reference 1. your letter d.no.1862 dated 29.8.97. 2. your letter d.no.606dated 17.3.98 (o.s.no.214 of 1993) the documents received along with your letter 1st cited on 1.9.97 through p.lakshmana perumal, assistant with seals intact and with your letter second cited on 20.3.98 by registered post without any seals were carefully and thoroughly examined in this department but in the absence of enough standard materials it is not possible to express any reliable opinion on the red enclosed signatures stamped and marked q1 to q12 on a comparison with the red enclosed signatures similarly stamped and marked s1 to s36. the documents are returned herewith.' 3. thereafter petitioner filed a memo again asking court to send the documents for expert opinion. that memo was filed on 8.9.1998. lower court rejected that memo by following order. 'the above said documents already sent to the experts and obtained experts opinion. therefore no necessity to send the said documents mentioned in the memo. therefore this memo is closed.'4. the above order was challenged in c.r.p.no.2472 of 1998 and by order dated 8.9.1998, learned judge dismissed the revision petition at the admission stage itself with the following observations: '...it is open to the revision petitioner who is the defendant before the lower court, if he is so advised to file appropriate petition under the relevant provision of law to send the standard materials as required by the expert for his opinion by filling a fresh and separate application to that effect....'5. on the basis of this observation petitioner filed i.a.no.702 of 1998 to send the documents for expert opinion. the same was seriously opposed by respondent and by the order dated 25.8.1998, lower court dismissed it. the same is challenged in this revision petition. 6. notice was served to respondent and after hearing both sides, i do not find any merit in this revision petition. 7. learned counsel for respondent even questioned the maintainability of the revision petition on the ground that it is not a 'case decided' under section 115 of code of civil procedure. 8. on merits i do not find that lower court has committed any illegalityso as to warrant interference in this case. all these documents i.e., various saledeeds, postal acknowledgment, vakalat, suit agreement and sample signatureswere originally sent to expert. it is considering the same documents werereturned on the ground stating that in the absence of enough standard materialsit is not possible to give reliable opinion. after expert returned the document,a memo was also filed asking the court to again send the papers for expertopinion. when that was dismissed, a revision was taken to this court and thesame was admittedly dismissed even at the admission stage. liberty was givento petitioner to move an application under relevant provision of law to send'standard materials as required by expert'. by filling this revision petition,petitioner, did not get any further material and he wanted the court to getexpert opinion on the basis of very same materials which was returned by theexpert. application itself is not in compliance with the direction given bylearned judge, who gave liberty to petitioner to file fresh application. lowercourt was therefore right in holding that the application is without merit andthe intention of petitioner is only to protract the litigation. no fresh material isplaced to get expert opinion. 9. learned counsel for respondent also questioned the maintainability of the revision and reliance was placed on the decision reported in ravindran v. roja, 1992 (2) k.l.t.102: 1993 (i) bc 531. in para 7 of the judgment learned judge considered the scope of revision especially after amendment of code of civil procedure under act 104 of 1976, which reads thus, 'however, on the basis of the decisions of the orissa high court in tata iron & steel co.ltd.v.m/s.rajarishi exports (p) ltd., air 1978 ori.179, sabitri debi & another v. baikuntha das & another, : air1979ori140 , and doshei dei and others v. rama routa and others, : air1985ori77 , it was urged that the proviso to sub-section (1) of s. 115 of the code and the explanation introduced in s. 115 have so widened the revisional jurisdiction of the high court that every order made during the pendency of a suit becomes a case decided. upon an analysis of s. 115 with reference to the amendments introduced by the code of civil procedure (amendment) act-act 104 of 1976-i have, in m.kunju ahmed v. p.a.azeez kunju, 1992 (1) klt 713 : c.r.p.no.768 of 1991 decided on 19th march, 1992) held that the proviso to sub-section(1) of s. 115 and the explanation to that section have no doubt broadened the meaning of the expression 'any case which has been decided.' but the meaning of 'any case which has been decided' remains what the supreme court interpreted it to be consequently i have held that every order made during the pendency of a suit or proceeding does not become 'a case....decided'. it has still to satisfy the essential requirement that the order sought to be revised must decide or adjudicate upon a right or obligation. the reasons given by me in the aforesaid judgment may be summarized as under: (i) the high court's revisional power, by sub-section (1) of s. 115 of code, is confined to 'any case which has been decided'. the code of civil procedure (amendment) act, 1976-act 104 of 1976 - does not touch this fundamental perquisite of exercise of revisional power. (ii) the proviso, by its very function expects out, a part of the enacting section and does not replace the main provisions to which it is a proviso. the proviso which limits the high court's power to cases specified in clauses (a) and (b) of the proviso does not obliterate the words 'any case which has been decided' but it limits the high court's revisional power by the clauses (a) and (b). (iii) the proviso, by clauses (a) and (b) subserves the exercise of revisional power of the high court and is subordinate to it. it cannot be understood to mean that an order sought to be revised under sub-section(1) of s. 115 need not amount to 'any case which has been decided'. the statements of objects and reasons of the code of civil procedure (amendment) act, 1976 (act 104 of 1976) clearly suggests that the legislature did not intend to alter the meaning of any case which has been decided. the explanation and the proviso were added to remove doubts as to whether interlocutory orders are included within 'case decided'. the proviso was intended to limit the exercise of revisional power to cases where justice requires interference by the high court.' thereafter in paragraphs 9 and 10 of the judgment, learned judge held thus, '9. the consensus of judicial opinion is that admission of a document in evidence or refusal to send a document to an expert for an examination does not decide or adjudicate upon any right or obligation of a party. the opinion of handwriting expert is but one mode of proving handwriting of a person. another way of proving handwriting of a person is through the evidence of a person acquainted with the disputed handwriting. (section 4 evidence act -some judicial decisions quoted in sarkar on evidence consider that evidence under s. 47 is more satisfactory than the evidence of an expert under s. 45 of the evidence act.). when a court rejects an application for sending documents for examination by an expert, it merely denies to the applicant the opportunity of tendering evidence of a particular kind and by a particular mode. if the handwriting expert's evidence is denied to the husband, in this case, he can still lead other evidence to prove that the letters were in fact written by his wife. in any view of the matter an order refusing to send documents to a handwriting expert decides no right or obligation of a party. the impugned order does not decide adversely to the husband, his claim to lead evidence in regard to the handwriting of his wife. it denies to him the right to lead evidence by sending the documents to an expert. nothing has prevented him from leading evidence of a person who knows the handwriting of the wife. the impugned order is not 'a case decided.''(italics supplied) 10. i find force in the contention of learned counsel for respondent and hold that the revision petition itself if not maintainable both on fact and on law. 11. in the result, the revision petition is dismissed. no costs. consequently, c.m.p.16310 of 1998 is also dismissed.

Judgment:
ORDER

1. Defendant in O.S.No.214 of 1993 on the file of Principal Subordinate Judge's Court, Tenkasi is the revision petitioner.

2. Suit filed by plaintiff was one for specific performance of contract on the basis of agreement for sale, alleged to have been executed by defendant. Defendant denied execution of agreement for sale. To prove that thumb impression in agreement for sale is not of defendant, an application was filed by defendant to send the same to get expert opinion, in I.A.No.718 of 1996. Some of the admitted signatures along with disputed thumb impression were also sent for getting expert opinion to Forensic Science Department, Government of Tamil Nadu. On 15.4.1998, all the papers were returned to Court with covering letter which reads thus,

'From

The Director and Chemical Examiner to Government,

Forensic Sciences Department,

Forensic House), Kamarajar Salai,

Madras-600 004.

To

The Principal Subordinate Judge,

Tenkasi, Tirunelveli District.

Reference 1. Your letter D.No.1862 dated 29.8.97.

2. Your letter D.No.606

dated 17.3.98 (O.S.No.214 of 1993)

The documents received along with your letter 1st cited on 1.9.97 through P.Lakshmana Perumal, Assistant with seals intact and with your letter second cited on 20.3.98 by Registered post without any seals were carefully and thoroughly examined in this department but in the absence of enough standard materials it is not possible to express any reliable opinion on the red enclosed signatures stamped and marked Q1 to Q12 on a comparison with the red enclosed signatures similarly stamped and marked S1 to S36.

The documents are returned herewith.'

3. Thereafter petitioner filed a memo again asking Court to send the documents for expert opinion. That memo was filed on 8.9.1998. Lower Court rejected that memo by following order.

'The above said documents already sent to the experts and obtained experts opinion. Therefore no necessity to send the said documents mentioned in the memo. Therefore this memo is closed.'

4. The above order was challenged in C.R.P.No.2472 of 1998 and by order dated 8.9.1998, learned Judge dismissed the revision petition at the admission stage itself with the following observations:

'...It is open to the Revision petitioner who is the defendant before the lower court, if he is so advised to file appropriate petition under the relevant provision of law to send the standard materials as required by the expert for his opinion by filling a fresh and separate application to that effect....'

5. On the basis of this observation petitioner filed I.A.No.702 of 1998 to send the documents for expert opinion. The same was seriously opposed by respondent and by the order dated 25.8.1998, lower court dismissed it. The same is challenged in this revision petition.

6. Notice was served to respondent and after hearing both sides, I do not find any merit in this revision petition.

7. Learned counsel for respondent even questioned the maintainability of the revision petition on the ground that it is not a 'case decided' under Section 115 of Code of Civil Procedure.

8. On merits I do not find that lower court has committed any illegalityso as to warrant interference in this case. All these documents i.e., various saledeeds, postal acknowledgment, vakalat, suit agreement and sample signatureswere originally sent to expert. It is considering the same documents werereturned on the ground stating that in the absence of enough standard materialsit is not possible to give reliable opinion. After expert returned the document,a memo was also filed asking the court to again send the papers for expertopinion. When that was dismissed, a revision was taken to this Court and thesame was admittedly dismissed even at the admission stage. Liberty was givento petitioner to move an application under relevant provision of law to send'standard materials as required by expert'. By filling this revision petition,petitioner, did not get any further material and he wanted the Court to getexpert opinion on the basis of very same materials which was returned by theexpert. Application itself is not in compliance with the direction given bylearned Judge, who gave liberty to petitioner to file fresh application. LowerCourt was therefore right in holding that the application is without merit andthe intention of petitioner is only to protract the litigation. No fresh material isplaced to get expert opinion.

9. Learned counsel for respondent also questioned the maintainability of the revision and reliance was placed on the decision reported in Ravindran v. Roja, 1992 (2) K.L.T.102: 1993 (I) BC 531. In para 7 of the judgment learned Judge considered the scope of revision especially after amendment of Code of Civil Procedure under Act 104 of 1976, which reads thus,

'However, on the basis of the decisions of the Orissa High Court in Tata Iron & Steel Co.Ltd.v.M/s.Rajarishi Exports (P) Ltd., AIR 1978 Ori.179, Sabitri Debi & another v. Baikuntha Das & another, : AIR1979Ori140 , and Doshei Dei and others v. Rama Routa and others, : AIR1985Ori77 , it was urged that the proviso to sub-section (1) of S. 115 of the Code and the explanation introduced in S. 115 have so widened the revisional jurisdiction of the High Court that every order made during the pendency of a suit becomes a case decided. Upon an analysis of S. 115 with reference to the amendments introduced by the Code of Civil Procedure (Amendment) Act-Act 104 of 1976-I have, in M.Kunju Ahmed v. P.A.Azeez Kunju, 1992 (1) KLT 713 : C.R.P.No.768 of 1991 decided on 19th March, 1992) held that the proviso to sub-section(1) of S. 115 and the explanation to that section have no doubt broadened the meaning of the expression 'any case which has been decided.' But the meaning of 'any case which has been decided' remains what the Supreme Court interpreted it to be consequently I have held that every order made during the pendency of a suit or proceeding does not become 'a case....decided'. It has still to satisfy the essential requirement that the order sought to be revised must decide or adjudicate upon a right or obligation. The reasons given by me in the aforesaid judgment may be summarized as under:

(i) The High Court's revisional power, by sub-section (1) of S. 115 of Code, is confined to 'any case which has been decided'. The Code of Civil Procedure (Amendment) Act, 1976-Act 104 of 1976 - does not touch this fundamental perquisite of exercise of revisional power.

(ii) The proviso, by its very function expects out, a part of the enacting section and does not replace the main provisions to which it is a proviso. The proviso which limits the High Court's power to cases specified in clauses (a) and (b) of the proviso does not obliterate the words 'any case which has been decided' but it limits the High Court's revisional power by the clauses (a) and (b).

(iii) The proviso, by clauses (a) and (b) subserves the exercise of revisional power of the High Court and is subordinate to it. It cannot be understood to mean that an order sought to be revised under sub-section(1) of S. 115 need not amount to 'any case which has been decided'. The statements of objects and reasons of the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) clearly suggests that the legislature did not intend to alter the meaning of any case which has been decided. The explanation and the proviso were added to remove doubts as to whether interlocutory orders are included within 'case decided'. The proviso was intended to limit the exercise of revisional power to cases where justice requires interference by the High Court.'

Thereafter in paragraphs 9 and 10 of the Judgment, learned Judge held thus,

'9. The consensus of judicial opinion is that admission of a document in evidence or refusal to send a document to an expert for an examination does not decide or adjudicate upon any right or obligation of a party. The opinion of handwriting expert is but one mode of proving handwriting of a person. Another way of proving handwriting of a person is through the evidence of a person acquainted with the disputed handwriting. (Section 4 Evidence Act -Some judicial decisions quoted in Sarkar on Evidence consider that evidence under S. 47 is more satisfactory than the evidence of an expert under S. 45 of the Evidence Act.). When a court rejects an application for sending documents for examination by an expert, it merely denies to the applicant the opportunity of tendering evidence of a particular kind and by a particular mode. If the handwriting expert's evidence is denied to the husband, in this case, he can still lead other evidence to prove that the letters were in fact written by his wife. In any view of the matter an order refusing to send documents to a handwriting expert decides no right or obligation of a party.

The impugned order does not decide adversely to the husband, his claim to lead evidence in regard to the handwriting of his wife. It denies to him the right to lead evidence by sending the documents to an expert. Nothing has prevented him from leading evidence of a person who knows the handwriting of the wife. The impugned order is not 'a case decided.''(Italics supplied)

10. I find force in the contention of learned counsel for respondent and hold that the revision petition itself if not maintainable both on fact and on law.

11. In the result, the revision petition is dismissed. No costs. Consequently, C.M.P.16310 of 1998 is also dismissed.