Dinesh Chandra Deb Vs. Dulal Chandra Karmakar and others, 53 DLR (2001) 259

Case No: Civil Revision No. 2314 of 1992

Judge: Syed Mahmud Hossain,

Court: High Court Division,,

Advocate: Mr. Nikhilesh Dutta,,

Citation: 53 DLR (2001) 259

Case Year: 2001

Appellant: Dinesh Chandra Deb

Respondent: Dulal Chandra Karmakar and others

Subject: Law of Evidence, Procedural Law,

Delivery Date: 2001-3-29

 
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Syed Mahmud Hossain, J.
 
Dinesh Chandra Deb
………...………..Petitioner
Vs.
Dulal Chandra Karmakar and others
…………….….. Opposite Parties
 
Judgment
March 29, 2001.
 
Evidence Act (I of 1872)
Sections 45 & 73
Comparison of disputed signature/ LTI cannot be done by the expert with the said registered document which is not admitted or proved to the satisfaction of the court.
 
Cases Referred To-
State (Delhi Administration) Vs. Pali Ram AIR 1979 (SC) 14; Krushna Chandra Vs. Commissioner of Endowment AIR 1976 Orissa 52 & Sreemuthi Sarojini Dassi Vs. Han Das Ghose 26 CWN 113.
 
Lawyers Involved:
Nikhilesh Dutta, Advocate —For the Petitioner
Not represented- the Opposite parties.
 
Civil Revision No. 2314 of 1992
 
JUDGMENT
 
Syed Mahmud Hossain J.
 
This Rule is directed against order Nos.28 and 29 dated 24-6-1992 and 6-7-1992 respectively by the learned Senior Assistant Judge, 2nd Additional Assistant Judge Court, Sadar, Noakhali allowing comparison of disputed document against which another suit is brought with plaintiffs signature disputed in the suit, for obtaining opinion of the Handwriting Expert in Title Suit No. 461 of 1990
 
2. The petitioner as plaintiff instituted Title Suit No.461 of 1990 in the Court of Assistant Judge, Sadar, Noakhali for a declaration that the decree dated 24-2-1983 passed by the learned Subordinate Judge, Sadar, Noakhali in Title Suit No.106 of 1982 in terms of solenama was forged, fraudulent and inoperative.
 
3. The plaintiff’s Case in short, is that his maternal grandmother, Niroda Sundari, had been the owner of 0.26 acre of land of plot No. 30 measuring an area of 0.80 acre of land. She gifted 0.14 acre of land to the plaintiff by the registered deed of gift dated 12-9-1970 and thereafter died, leaving behind the plaintiffs mother as her only heir Kali Prasanna, and Han Prasanna (plaintiffs father) were the owners in possession of plot No. 28 of khatian No. 43 measuring an area of 1.17 acres of land. Having executed a Power of Attorney on 18- 8-1952 in favour of his brother, Han Prasanna, Kali Prasanna left for India, after the death of plaintiffs father Han Prasanna, the plaintiff became the owner in possession of the entire property. Biswanath Karmaker, father of defendant Nos. 1-6, filed Title Suit No.160 of 1982 in the Court of Subordinate Judge, Noakhali where plaintiffs uncle Kali Prasanna, maternal grandmother, Niroda Sundari and the plaintiff were impleaded as defendant Nos. 1, 2 and 3 respectively. At the time of filing of the suit the plaintiffs father Han Prasanna who died on 6- 10-1984 was alive. No summons or notices were at all served upon the defendants. It appeared that the plaintiff who was defendant No.3 in the said suit was alleged to have executed a solenama on 29- 1-1983. As a matter of fact, he neither executed the solenama nor appointed any Advocate to file such solenama. The decree on the basis of the said solenama was obtained by practicing fraud upon the court. Hence the suit.
 
4. Defendant opposite party Nos.1 to 6 having entered appearance in the suit filed a joint written statement denying all the material allegations made in the plaint. Their Case, in short, is that Kali Prasanna in August, 1952 kot mortgaged 0.42 acre of land to their father Biswanath Karmakar, for a period of 2 years on receipt of Taka 300.00. But subsequently, on 13-12-1993 sold the same to Biswanath at a consideration of Taka 1,500.00 and undertook to register the sale deed but failed to do so. Biswanath thereafter brought Title Suit No 106 of 1982 in the Court of Subordinate Judge, Noakhali for declaration of his right, title and interest in the suit land by way of adverse possession. The plaintiff petitioner having found that there was no chance of success in the suit compromised the same by executing and filing a solenama through his learned Advocate. The suit is liable to be dismissed for reasons stated hereinabove.
 
5. On 24-6-92 defendant opposite party Nos.1-6 filed an application for collecting specimen signatures of the plaintiff stating, amongst others, that to ascertain the genuineness of the signature in the disputed solenama it was necessary that (i) the signature of the plaintiff in the solenama in Title Suit No. 106 of 1982 (ii) Specimen signatures of the plaintiff and (iii) signatures given by the plaintiff in the registered deed dated 23-10-1983 in favour of Sreemati Lakshmi Prava Devi were required to be sent for comparative, study and examination by a Handwriting Expert and also for his opinion in this regard.
 
6. The said application for Hand Writing Expert’s opinion so far as it related to comparison of the plaintiffs signature with the registered deed dated 23-10-1983 was objected to on the ground that the plaintiff already filed Title Suit No. 334 of 1992 in the Court of Assistant Judge, Sadar, Noakhali against Lakshmi Prava, the recipient of the deed, stating that the said deed dated 23-10-1983 was forged, fraudulent, collusive and registered under false personation.
 
7. The learned Senior Assistant Judge by his order dated 24-6-92 allowed the said application.
 
8. The petitioner on 6-7-1992 filed another application for reconsideration of the earlier order dated 24-6-1992 on the ground that comparison of the disputed signature by the Handwriting Expert with the registered deed dated 23-10-1983 could not be done as the said deed was under challenge in Title Suit No. 334 of 1992.
 
9. Defendant opposite party Nos. 1 to 6 also filed an application for taking the specimen LTI of the plaintiff for comparison by a Fingerprint Expert with the LTI of the plaintiff appearing in the registered sale deed dated 23-10-1983 as the plaintiff challenged the genuineness of the said registered deed.
 
10. The learned Senior Assistant Judge rejected the application of the plaintiff-petitioner but allowed the application filed by the defendant opposite party Nos. 1 to 6 for obtaining LTI of the plaintiff-petitioner for comparison by the Finger print Expert with the registered sale deed dated 23. 10-1983 by his order dated 6-7-1992
 
11. From the record it appears that the plaintiff I petitioner filed another application for reconsideration of the order dated 6-7-1992 but the said application was also rejected on 14-7-1992
 
12. Mr. Nikhilesh Dutta, learned Advocate, appearing on behalf of the petitioner, submitted that the impugned orders so far as they related to the taking of opinion of the Handwriting Expert/Finger print Expert by comparing the plaintiffs signature and thumb impression with registered sale deed dated 23-10-19 in favour of Sreemati Lakshmi Prava Devi was illegal as the genuineness of the said registered deed of sale was under challenge in another suit namely Title Suit No 334 of 1992, filed by the plaintiff petitioner He further submitted that comparison of the disputed signatures could only be done with admitted documents containing admitted signatures.
 
13. Perused the revisional application, the impugned order and the LC record of the suit.
 
14. Section 45 of the Evidence Act (hereinafter referred to as Act) deals with the taking of opinion of the Experts. But in order to resolve the point raised in the Rule it is necessary to have a glance over sections 45 and 73 of the Act which are as follows:
 
45. When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.”
 
73. 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.
The 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 with any words or figures alleged to have been written by such person. The section applies also, with necessary modifications, to finger impressions.” (emphasis supplied)
 
15. The principle enunciated in the case of State (Delhi Administration) Vs. Pali Ram reported in AIR 1979 (SC) 14, though in a criminal case, is equally applicable for civil cases as well. In the said case it was held as follows:
 
“The first paragraph of the section (section 73) as already seen provides for comparison of signature, writing, etc., purporting to have been written by a person with others admitted or proved to the satisfaction of the court to have been written by the same person. But it does not specifically say by whom such comparison may be made. Construed in the light of English law on the subject, which is the legislative source of this provision, it is clear that such comparison may be made by a handwriting expert (Section 45) or by one familiar with the handwriting of the person concerned (Section 47) or by the Court. The two paragraphs of the section are not mutually exclusive. They are complementary to each other. Section 73 is therefore, to be read as a whole, in the light of Section 45…………………………………………………..
The Handwriting Expert’s function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writing” (emphasis supplied)
 
16. In the case of Krushna Chandra Vs. Commissioner of Endowment reported in AIR 1976 Orissa 52 it was held by a Division Bench that before invoking section 73 of the Act there must be evidence before the Court that a thumb impression was that of a party to the litigation to be compared with the specimen thumb impressions.
 
17. In the case of Sreemuthi Sarojini Dassi Vs. Han Dos Ghose reported in 26 CWN 113 it was held that the writing with Which comparison was to be made or the standard writing as it might be called, should be admitted or proved to have been written by the person to whom it was attributed and next the writing to be compared with the standard or, in other words, the disputed writing.
 
18. So, according to the principle enunciated in the Cases referred to hereinabove it is clear that comparison of the disputed writing/thumb impression by the Expert or by the court must be made with a document admitted or proved to the satisfaction of the court to be genuine.
 
19. In the instant case the court by the impugned order dated 24-6-1992 allowed comparison of the disputed signature of the plaintiff on the solenama with the specimen signatures of the plaintiff and the signature of the plaintiff on the registered sale deed dated 23-10-1983. The plaintiff-petitioner raised serious objection on the ground that the genuineness of the registered sale deed dated 23-10-1983 was challenged in Title Suit No. 334 of 1992 and the same was pending, and prayed for recon of the order. Defendant-opposite party Nos.1 to 6 when saw that the plaintiff-petitioner challenged the genuineness of the registered sale deed dated 23-10-1983 they filed another application for obtaining specimen LTI of the plaintiff for comparison with the alleged plaintiffs LTI in the registered sale deed dated 23-10-1983. In other words, the defendant-opposite party Nos. 1 to 6 in effect, were trying to establish the genuineness of the registered sale deed dated 23-10-1983 The learned Senior Assistant Judge by the order dated 6-7-1992 allowed the subsequent prayer of the defendant-opposite party Nos.1 to 6. The genuineness of the said registered sale deed cannot be decided in the instant suit, namely, Title Suit No. 461 of 1990 as the genuineness of the same will be determined in Title Suit No. 334 of 1990. Unless and until the genuineness of the registered sale deed dated 23-10-1983 is determined, the same cannot be used for comparison by a Handwriting Expert/ Fingerprint Expert in the instant suit, namely, Title Suit No. 461 of 1990.
 
20. From the discussions made hereinabove it is clear that comparison of disputed signature/LTI cannot be done by the Expert with the said registered document which is not admitted or proved to the satisfaction of the court.
 
21. For the reasons stated above the impugned orders call for interference by this Court so far as they relate to comparison by the Handwriting /Fingerprint Expert with the registered sale deed dated 23-10-1983.
 
22. In the result, the Rule is made absolute and the impugned orders dated 24-6-1992 and 6-7-1992 as well as the order dated 14-7-1992 so far as they relate to comparison with the registered sale deed dated 23-10-1983 only are set aside without any order as to costs and the order of stay granted at the time of issuance of the Rule is hereby vacated.
Let a copy of the judgment be communicated to the learned Senior Assistant Judge concerned. Send down the LC record immediately.
 
Ed.