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Kamwar Lal Gupta Vs. Amar Nath Chawla and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberInterim Application No. 95 of 1972 and Election Petition No. 2 of 1971
Judge
Reported inILR1972Delhi717
ActsEvidence Act, 1872 - Sections 5 and 73
AppellantKamwar Lal Gupta
RespondentAmar Nath Chawla and ors.
Advocates: S.N. Marwah,; K.C. Dua,; D.D. Chawla,;
Cases ReferredVeeraraghava Aiyangar v. Souri Aiyangar
Excerpt:
.....his. the second apart of this section primarily deals wit a situation where an admitted or proved handwriting may not be in existence and in such a case the handwriting of a person by whom it purports to have been written has been produced and if it is to be ascertained whether this handwriting is of the person present in court, the court may direct such person to give a specimen of his writing for comparison of the tow writings. the words 'enabling the court' do not restrict the exercise of the power given by the second part of section 73 to cases where such direction is necessary where the court has to satisfy itself or has its own purpose. this power can be exercised if a purported writing is sought to be proved either when there is no admitted or proved writing in which case the..........that of respondent no. 5. along with this application a letter dated 6.8.1971 alleged to be in the handwriting and bearing the signatures of respondent no. 5 has been filed. it is prayed that respondent no. 5 should be asked to admit or deny whether the said letter dated 6.8.1971 is in his handwriting and if respondent no. 5 denies this letter to be in his handwriting, he should be directed to give a specimen writing corresponding to the writing in exhibit public witness . 11/5 in three or four sets as the petitioner desires to examine a handwriting expert for the purpose of proving that the writing and nothings on exhibit public witness 11/5 are in fact in the handwriting of respondent no. 5. the petitioner, has, thereforee, made two prayers: (1) that respondent no. 5 be examined to.....
Judgment:

S.N. Andley, J.

(1) The document Exhibit Public Witness . 11/5 which contains a writing in Hindi was produced and proved by Public Witness . 11 who is an employee of the Sarvdeshik Press. This document was admitted in evidence only in connection with the corrupt practice referred to in section 123(6) of the Representation of the People Act, 1951, relating to the excess of expenses over the prescribed limit of Rs. 10,000.00 which is covered by Issue No. 10 and not in connection with the corrupt practice relating to annexures 'A' and 'B' to the petition which is covered by Issues Nos. 8 and 9. Public Witness . 11 stated that respondent No. I, accompanied by Krishan Avtar Aggarwal; Public Witness . 2 and respondent No. 5 had come to his press for getting some printing work done and that Krishan Avtar Aggarwal wanted 9 pamphlets, including Exhibit PW. 11/5, to be printed. Neither this witness nor any other witness has stated that the writing on Exhibit Public Witness . 11/5 is that of respondent No. 5. This writing has the signatures of one Om Parkash Jain and does not purport to bear the signatures of respondent No. 5.

(2) In this application it is alleged that the writing on Exhibit Public Witness . 1 1/5 is that of respondent No. 5. Along with this application a letter dated 6.8.1971 alleged to be in the handwriting and bearing the signatures of respondent No. 5 has been filed. It is prayed that respondent No. 5 should be asked to admit or deny whether the said letter dated 6.8.1971 is in his handwriting and if respondent No. 5 denies this letter to be in his handwriting, he should be directed to give a specimen writing corresponding to the writing in Exhibit Public Witness . 11/5 in three or four sets as the petitioner desires to examine a handwriting expert for the purpose of proving that the writing and nothings on Exhibit Public Witness 11/5 are in fact in the handwriting of respondent No. 5. The petitioner, has, thereforee, made two prayers: (1) that respondent No. 5 be examined to admit or deny whether the letter dated 6.8.1971 is in his hand and (2) upon his denial he be directed to give a specimen writing as stated above.

(3) Respondent No. 1 has filed a reply to this application opposing the prayers. It is submitted that the document Exhibit Public Witness . 11/5 Along with others in the series produced by Public Witness . 11 was produced by the petitioner in proof of Issue No. 10 relating to the expenses incurred by respondent No. 1 being beyond the prescribed limit ofRs. 10,000.00 and that respondent No. 5 has nothing to do with the incurring of expenditure beyond the authorised limit ofRs. 10,000.00 as he is connected only with the corrupt practices based on the publication of annexures 'A' and 'B' to the petition which are covered by the pleadings contained in paragraphs 20 to 24 while the allegation with regard to the excess of expenses is contained in paragraph 25 of the petition. It is contended that respondent No. 5 cannot be asked to admit or deny the document filed by the petitioner with this application as a party and the petitioner should summon respondent No. 5 as his witness so that respondent No. 1 has an opportunity to cross-examine him. It is further contended that respondent No. 5 is not at all concerned with Issue No. 10 relating to expenses.

(4) I made an order that respondent No. 5 should also file a reply lo this application and a reply has been filed on 17.1.1972. Respondent No. 5 has denied the letter dated 6.8.1971 to be in his handwriting. Respondent No. 5 has also contended that he is concerned only with the corrupt practice in relation to the publication of annexures 'A' and 'B' to the petition and that he has no concern with Issue No. 10 which relates to the excess of expenses over the prescribed limit, Respondent No. 5 submits that the application has been filed in order to overawe him and that it is mala fide and should be dismissed with costs.

(5) Mr. Marwaha, counsel for the petitioner, has attempted to argue that Exhibit Public Witness . 1 1/5 is relevant even for the issue of corrupt practice in relation to annexures 'A' and 'B' to the petition because it will show connection of respondent No. 5 with respondent No. 1. Paragraphs 20 to 24 of the petition contain the pleadings with respect to the corrupt practice in relation to annexures 'A' and 'B' to the petition and in connection with this corrupt practice respondent No. 5 has undoubtedly been named as an agent of respondent No. 1. In view, however, of the fact that Exhibit Public Witness ./11/5 was taken in evidence only on Issue No. 10 which relates to the excess of expenses, this argument cannot be accepted and the proof of Exhibit Public Witness . 11/5 as being in the handwriting of respondent No. 5 cannot be said to relate to Issue Nos. 8 and 9 and this document has to be confined to the proof of Issue No. 10.

(6) Issue No. 10 is whether respondent No. 1 incurred or authorised the expenditure beyond the prescribed limit in contravention of section 77 of the said Act and is based upon the pleadings contained in paragraph 2 5 of the petition which merely repeats the language of sections 123(6) and 77 of the said Act. In the particulars supplied with respect to Issue No. 10 respondent No. 5 has not been named at all. thereforee, respondent No. 5 is not concerned with Issue No. 10 which is only between the petitioner and respondent No. 1.

(7) Mr. Marwaha relies upon sections 5 to 10 of the Evidence Act to show that the question whether the writing on Exhibit Public Witness . 11 /5 is in the hand of respondent No. 5 is a relevant fact to prove the fact in issue No. 10, namely, whether respondent No. 1 had incurred an expense in excess of the authorised expense. Respondent No. 1 does not contest this position. The stand of respondent No. 1 is not that the document Exhibit Public Witness . 11/5 cannot be proved against him on Issue No. 10 but the objection is with regard to the mode of proof by obtaining an admission or denial from respondent No. 5 or obtaining his specimen writing. It is not disputed that the petitioner can prove the writing in Exhibit Public Witness . 11/5 to be the writing of respondent No. 5 even in relation to Issue No. 10 if respondent No. 5 is produced as a witness so that respondent No. 1 may have an opportunity of cross-examining him if he admits the writing in Exhibit Public Witness . 11/5 to be his in such statement as a witness. Even if it is a relevant fact, the objection on behalf of respondent No. 1 as stated earlier, is not to the proof of the fact but to the method of proof.

(8) There is no doubt that an admission by one of several defendants in a suit is no evidence against the other defendants. There is, thereforee, substance in the argument that any admission made by respondent No. 5 even though he is a party to the petition will not be binding on respondent No. 1.

(9) With regard to proving the writing on Exhibit Public Witness . 11/5 in the way prayed for, Mr. Marwah relies upon section 73 of the Evidence Act. This section relates to the comparison of inter alia, writings, with other writings admitted or proved. It provides,-

'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.

(10) 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. This section applies also, with any necessary modifications, to finger-impressions.' The first part of this section cannot apply for the simple reason that there is no writing of respondent No. 5 which has been admitted by him or proved to have been written by him because respondent No. 5, in his. reply, has denied the said letter dated 6.8.1971 to be in his handwriting. To meet this situation, the counsel for the petitioner turns to the other prayer in his application that the Court may direct respondent No. 5 to give a specimen of his handwriting and for this purpose he invokes the second part of this section which empowers the Court to 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. Counsel for respondent No. 5 urges that the second part of this section cannot be invoked as the words 'enabling the Court' signify that this power can be exercised only when the Court is of the view that it requires such specimen writing for its own purposes or to satisfy itself. Reliance is placed upon a decision of Kotval J. : AIR1958Bom207 in re: State v. Poonamchand Gupta and others') where it has been observed that the second part of section 73 limits the power of the Court to directing a person. present in Court to write any words or figures only where the Court itself is of the view that it is necessary for its own purposes to take such writing for the purpose of comparison and that this power does not extend to permitting one or the other party before the Court to ask the Court to take such writing for the purpose of its evidence or its own case. With respect to the learned Judge, it is difficult for me to see what purposes can be the purposes of the Court as distinguished and distinct from the purposes of the parties before it. The sole purpose of the Court is to do justice between the parties and to take into consideration all relevant evidence which is tendered by the parties. There are no purposes nor is there any satisfaction which can be said to be personal to the Court as distinguished from the parties before it in the cause which is under trial. I thereforee, find it difficult to restrict the scope of the second part of section 73 to situations where the Court has to form a view of its own purposes or to satisfy itself. Section 73 can be invoked when the Court is to ascertain whether a particular writing is in the handwriting of the person by whom it purports to have been written. It is for the purpose of ascertaining this fact that the second part of section 73 empowers the Court to direct any person present in Court to give his specimen writing so that the Court may be able to compare the specimen writing with the writing which is alleged to be his. The .second part of this section primarily deals with a situation where an admitted or proved handwriting may not be in existence and in such a case the handwriting of a person by whom it purports to have been written has been produced and if it is to be ascertained whether this handwriting is of the person present in Court, the Court may direct such person to give a specimen of his writing for comparison of the two writings. In my view, the words 'enabling the Court' do not restrict the exercise of the power given by the second part of section 73 to cases where such direction is necessary where the Court has to satisfy itself or has its own purpose. This power can be exercised if a purported writing is sought to be proved either when there is no admitted or proved writing in which case the specimen writing becomes such admitted or proved writing or the admitted or proved writing on the record is inadequate for the purpose of comparison. Section 73 is a section relating to the proof of a writing by comparison and for this purpose this power can be exercised either by the Court itself or at the instance and upon the prayer of any of the parties before it.

(11) The more weighty argument has been addressed on behalf of respondent No. 1. As stated by me, if there are several parties before a Court, an admission of one of them cannot be held binding against the others and it is based upon a basic principle which has been recognised in (1874) Indian Appeals 113 in re: Aurnirtolall Bose v. Rajoneekant Mitter(2) and in Air 1928 Lah 769 in re: Narindar Singh and others v. C. M. King(3) where it has been laid down that an admission, or even a confession of judgment by one of several defendants in a suit, is no evidence against another defendant. Of- course, in the present case respondent No. 5 has denied the writing on Exhibit Public Witness . 11/5 to be in his hand but even if he had admitted it, such admission could not be held binding on respondent No. 1 in relation to Issue No. 10 or any other issue. thereforee, the prayer that respondent No. 5 should be asked to admit or deny the writing on Exhibit Public Witness . 11/5 cannot be granted.

(12) The next argument on behalf of respondent No. 1 is that to apply section 73, it is necessary that the ascertainment must be in respect of a writing of the person by whom it purports to have been written and it is to be seen ex fade the document whether the writing purports to be of that person. It is contended that neither the subject matter of the writing on Exhibit Public Witness . 11/5 nor the name of the person on it (which is Om Parkash Jain and not Jai Parkash Goel) suggests that the writing is by Jai Parkash Goel, respondent No. 5 and, thereforee, the writing Exhibit Public Witness . 11/5 does not purport to be the writing of Jai Parkash Goel. For this contention reliance is first placed upon I.L.R. 37 Cal 467 in re: Barindra Kumar Chose and others v. Emperor(4) where Jenkins, Chief Justice, speaking for the Court has stated,-

'SECTION 73 of the Evidence Act does not sanction the comparison on any two documents, but requires, first, that the standard writing shall be admitted or proved to be that of the person to whom it is attributed; and secondly, that the disputed writing must itself purport to have been written by the same person.'

(13) This decision was quoted in : AIR1957Mad210 in re. Narasimha Rao v. Someswar Joshi(5) but it was stated that it did not apply to the facts of the case before the Court. The Calcutta view was dissented from by the Bombay High Court in a Division Bench judgment reported in 15 Indian Cases 649 in re. Emperor v.Ganpat Balkrishna Rode(6) where the word 'purports' in section 73 of the Evidence Act was held to mean 'alleged'. It was observed that it is not necessary under this section that the writing, which is in dispute, must itself in terms express or indicate that it was written by the person to whom it is attributed. The Bombay view was followed and the Calcutta view was dissented from by a Division Bench of the Madras High Court in the case reported in 48 Indian Cases 68 in re. Veeraraghava Aiyangar v. Souri Aiyangar(7) where it was observed,-

'SECTION 73 of the Indian Evidence Act is not limited, in its scope, to documents which are signed or contain some intrinsic statement of the identity of the writer. As under English Law, all that is necessary to render proof by comparison admissible is a dispute as to the writing.''

(14) I have my preference for the Madras and the Bombay view. It is not difficult to visualize that all writings may not indicate on their face the person by whom they purport to have been written. No names may be mentioned either in the body of the document or as signatures thereto but still a question may arise as to whether this writing is of a particular person. It is difficult for me to accept the proposition that section 73 cannot be invoked in such a case and that the document can be proved only by the other two modes, namely, (1) by calling as a witness a person who wrote the document or saw it written or (2)by admission. I think the third part of section 73 which applies this section, with necessary modifications, to finger-impressions fortifies me in my view. If there is a finger-impression on a document without indication in the document of the name of the person by whom it has been made, there will not be any indication in the document containing the finger-impression of the person by whom it purports to have been made but if such a finger impression is sought to be proved by comparison, the Court is empowered by section 73 to ascertain this fact by comparing it with an admitted or proved finger- impression. In my view the word 'purports' has been used in the sense of 'alleged'. It is an accepted principle that while construing a statute the ordinary dictionary meaning of a particular word has to be taken to be its meaning unless the context compels another meaning. Webster's Third New International Dictionary says that the adjective 'purported' has the meaning 'suspected of being: reputed, rumored'. The meaning given to the word 'purport' that 'it means fictitious, what appears on the face of the instrument; the apparent and not the legal import and thereforee any act which purports to be done in exercise of a power is to be deemed to be done within that power notwithstanding that the power is not exercisable' in : [1961]2SCR91 in re. Azimumissa and others v. The Deputy Custodian, Evacuee Properties,(8) does not give any assistance to the respondents because the aforesaid meanings were in a context where the word 'purport' is used in connection with the exercise of a power.

(15) In view of the denial of respondent No. 5 about the writing in Exhibit Public Witness . 11/5 being in his hand the question of any further admission by him does not arise. Even if there had been an admission it could not have been, as stated by me earlier, used against respondent No. 1 in connection with Issue No. 10. The question that is left is whether I should direct respondent No. to give a specimen of his handwriting. Even if such a specimen were taken, the admitted and the disputed writings will have to be compared by a handwriting expert whose opinions have not been looked upon with favor and which. at best, are opinions. If the proof of the writing on Exhibit Public Witness . 11/5 were based only on the opinion of a handwriting expert, it will again give an unfair advantage to the petitioner over respondent No. 1 who will still not have any opportunity to cross-examine respondent No. 5 whose writing Exhibit Public Witness . 11/5 is alleged to be.

(16) Mr. Marwaha contends that the method of proof by comparison as prayed by him has been accepted in the cases : 1961CriLJ856 ; : AIR1950Cal66 ; : AIR1955Cal247 ; ; : AIR1962Pat255 ; A.I.R. 1954 Mysore 117 and : AIR1970Mad85 . The contention has no force. These cases did not deal with the scope of section 73 of the Evidence Act. The question dealt with was whether the power to obtain specimen writing etcetera was vocative of clause 3 of Article 20 of the Constitution of India.

(17) I have, thereforee, come to the conclusion that I cannot ask respondent No. 5 to admit or deny the writing in Exhibit Public Witness . 11/5 although in his reply he has already denied it nor can I direct him to give a specimen of his writing for purposes of comparision. In the first case any admission of respondent No. 5 will not be binding on respondent No.1 and in the second case the mode of proof will be unfair to respondent No. 1 because he will be deprived of the right to cross-examine respondent No. 5. None of the prayers, thereforee, can be granted and this application is dismissed with costs. Costs shall be costs in the case.


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