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M. Narayanaswami Vs. V. Yangatanna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 1271 of 1973
Judge
Reported inAIR1975AP88
ActsEvidence Act, 1872 - Sections 45 and 73; Code of Civil Procedure (CPC) , 1908 - Order 3, Rule 1
AppellantM. Narayanaswami
RespondentV. Yangatanna
Appellant AdvocateN. Ramamohan Rao, Adv.
Respondent AdvocateChalla Sitaramaiah, Adv.
DispositionPetition dismissed
Excerpt:
.....application of petitioner and directed respondent to appear in court in person and give his left thumb impression for comparison. - - i fail to understand why article 20(3) of the constitution was mentioned because it relates only to accused persons. 3 rule 1 except for very good reasons. therefore, even according to this decision for good reason the court can always direct a party to appear in court in person. poonamchand, air1958bom207 .in that case the prosecution after examining some witnesses made an application to secure the attendance of all the accused in court and then direct them to write over their signatures as well as writings for the purpose of comparison. against the order of the magistrate when a revision was taken to the sessions judge, he recommended to the high..........requesting the court to direct the respondent to attend the court and give his specimen left hand thumb impression for the purpose of comparing the thumb impression in the suit promissory note by a fingerprint expert to find out whether the thumb impression in the suit promissory note is that of the respondent or not. the respondent opposed it by filing a counter stating that the petition is not maintainable and contending that there is no provision of jaw under which a court is empowered to direct a party to attend the court and give specimen thumb impression for the purpose of comparison by a finger-print expert. it was argued before the lower court and the same argument was pressed before me on behalf of the respondent that the only provision contained in the evidence act with regard.....
Judgment:
ORDER

Ramachandra Raju, J.

1. The plaintiff in O. S. No. 54 of 1973 on the file of the Court of the District Munsif. Dhone is the petitioner. He filed the suit against the respondent to recover some money on the basis of a promissory note said to have been executed by him in his favour. The respondent denied the borroving of any money from the petitioner and the execution of any promissory note in his favour. The petitioner filed an application, out of which this revision has arisen, requesting the Court to direct the respondent to attend the Court and give his specimen left hand thumb impression for the purpose of comparing the thumb impression in the suit promissory note by a Fingerprint Expert to find out whether the thumb impression in the suit promissory note is that of the respondent or not. The respondent opposed it by filing a counter stating that the petition is not maintainable and contending that there is no provision of Jaw under which a Court is empowered to direct a party to attend the Court and give specimen thumb impression for the purpose of comparison by a Finger-print Expert. It was argued before the lower Court and the same argument was pressed before me on behalf of the respondent that the only provision contained in the Evidence Act with regard to giving specimen writing or thumb impression in Court is the one contained in para 2 of Section 73 and under it a court can direct any person present in court to write any words or figure 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 and the same can be done with necessary modifications to thumb impressions also and that provision does not give any power to direct a party to be present in court for the purpose of giving specimen signature, writing or thumb impression for the purpose of sending the same to a Handwriting or Finger print expert for comparison. This contention was accepted by the lower court and it came to the conclusion that when the respondent is represented by an advocate and is not present before Court he cannot be directed to be present in Court as required by the petitioner. The lower Court also said that as provided under Article 20(3) of the Constitution of India an accused cannot be compelled to give his thumb impression. I fail to understand why Article 20(3) of the Constitution was mentioned because it relates only to accused persons. Moreover what is provided under Article 20(3) is that no person accused of any offence shall be compelled to be a witness against himself. What is meant by 'to be a witness against himself' was considered by the Supreme Court in State of Bombay v. Kathi Kalu, : 1961CriLJ856 and there, the Supreme Court said that Clause (3) of Article 20 is directed against self-incrimiaation by an accused person by giving personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony ot the nature of a 'personal testimony' and giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'. Whatever it is, we are not concerned here with any accused person. We are concerned only with a party in a civil suit.

2. While rejecting the application of the petitioner, the lower Court has said that when the suit summons was served on the respondent by the Court Amin he has affixed his thumb impression on the return and that thumb impression is available for comparison by a Finger-print Expert and the petitioner can send the thumb impression on the promissory note and the thumb impression available on the suit summons for comparison to a Finger-print expert. But is was argued on behalf of the petitioner that it is the contention of the respondent that he did not put the thumb impression in question and the Court Amin might have taken the impression of somebody else and not his. Under these circumstances, it is necessary that the thumb impression of the respondent should be taken in Court for the purpose of comparison.

3. Therefore, the point for consideration is whether the Court has power to direct a party to be present in Court and five his thumb impression or signature or and writing, as the case may be, for sending the same to an expert for the purpose of comparison with the disputed ones.

4. No doubt in para 2 of Section 73 of the Evidence Act reference is made only to a person present in Court and it is to enable the Court to compare a direction to write any words or figures etc. may be given by it. But in the first paragraph of Section 73 it is provided that 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 and in paragraph 8 it is provided that the section applies to thumb impression also. Therefore this provision enables a Court to compare signature or writing or thumb impression in question with the one which is to be proved or admitted to be of the person concerned. It is provided under Section 45 of the Evidence Act that when the Court has to form an opinion as to identity of handwriting or finger impressions, the Court can obtain the opinion of an expert. For obtaining the opinion of an expert certainly the disputed and the undisputed things must be sent to him for the purpose of comparison. As provided under the proviso to Order 3, Rule 1 of the Code of Civil Procedure, a Court can always order a party to appear in Court in person though it is provided under the rule that appearance may be made or done by the party in person or by recognised agent or by a pleader. Therefore as provided under the proviso to Order 3, Rule 1 though a party is appearing by a recognised agent or by a pleader in a case, the Court can always direct a party to appear in Court in person when the need arises. When power is given to a Court as provided under Section 78 of the Evidence Act to compare any signature, writing or thumb impression and for that purpose as provided under Section 45 of the Evidence Act it can take the assistance of an expert, there is no reason why as provided under Order 3, Rule 1, C. P. C. the Court cannot direct a party to appear in Court in person and give his signature, handwriting or thumb impression, as the case may be, to enable the Court to compare the same with the disputed ones. Otherwise the parties and the Court would be helpless if the admitted signature, handwriting or thumb impressions are not available otherwise. When the Court can direct a party present in Court to write or give thumb impression for the purpose of comparison and when he is not present there is no reason why the court cannot direct the party to he present in Court for that purpose by reason of the power given to it under the proviso to Order 3, Rule 1, C. P. C.

5. In this connection, Sri Challa Sitaramayya, the learned counsel for the respondent, has cited some decisions in support of his contention opposing the power of the Court to direct his client to be present in Court for the purpose of giving his left hand thumb impression. In Appavoo Asary v. Sornamal, AIR 1933 Mad 821 the question arose as to whether the Court case give a direction under Order 3, Rule 1 C. P. C. to a party to enable the opposite party to examine him as a witness. In that connection, the Madras High Court said that where one party desires the presence of the opposite party in Court for the purpose of examining him as a witness, the proper procedure to adopt is the one under Order 16 and not the one under the proviso to Order 3, Rule 1 C. P. C. The Court also observed that no Court of law would be justified in ordering a party to appear in Court on an application filed under Orde: 3 Rule 1 except for very good reasons. Therefore, even according to this decision for good reason the Court can always direct a party to appear in Court in person. Another decision relied on by the learned counsel is State v. Poonamchand, : AIR1958Bom207 . In that case the prosecution after examining some witnesses made an application to secure the attendance of all the accused in Court and then direct them to write over their signatures as well as writings for the purpose of comparison. The trying Magistrate allowed that application to take the specimen of the handwriting of the accused in the Court for comparison and then to seek a further report of the handwriting expert on that point. Against the order of the Magistrate when a revision was taken to the Sessions Judge, he recommended to the High Court to set aside the order for the reason that the power to take such evidence conferred by Section 73 of the Evidence Act is now controlled by Article 20(3) of the Constitution and that the second para of Section 73 of the Evidence Act also has no application because it deals with cases of person present in Court where the Court requires it for its own purpose to take such writing etc. for the purpose of comparison. When the matter was thus referred to the High Court, the Bombay High Court agreed with that view. It is true paragraph 2 of Section 73 of the Evidence Act may not in terms apply. As already discussed above, there are other provisions in Paragraph I of Section 73 and Section 45 of the Evidence Act and Order 3, Rule 1 C.P.C. which read together would certainly enable a Court to direct a party to appear in Court in person for the purpose of giving either thumb impression or writing or signature for purpose of comparison. In the decision Ayyandan v. Thanamal, AIR 1920 Mad 213 it was held by the Madras High Court that when to prove the defendants lunacy the plaintiff applied to the Court for her personal appearance in Court, Order 3, Rule 1 is wide enough to enable the Court to direct any party to the suit to appear in person, whether he be a minor or a major or of sound or unsound mind, and the order may be made at any stage of the suit. When such an order is given to the guardian of a lunatic or minor defendant, it is in effect an order to the defendant to appear in person and failure to comply with it will enable the Court to act under Order 9, Rule 12, C. P. C.

6. Therefore, I am of the opinion that by reason of the provisions contained in Sections 73 and 45 of the Evidence Act and Order 3, Rule 1 C. P. C., the Court can direct a party to be present in Court to give signature, handwriting or thumb impression for the purpose of comparison either by itself or for purpose of obtaining the opinion of an expert by sending the same to him. Therefore the civil revision petition is allowed and the application filed by the petitioner to direct the respondent to be present in court and give his left hand thumb impression is ordered. I direct the parries to Dear their respective costs in this civil revision petition.


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