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Babubhai Mulchanddas Kapadia Vs. Ishwarlal Devchand Kabrawala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 323 of 1974
Judge
Reported inAIR1975Guj95; (1975)0GLR66
ActsEvidence Act, 1872 - Sections 73
AppellantBabubhai Mulchanddas Kapadia
Respondentishwarlal Devchand Kabrawala
Appellant Advocate K.H. Kaji, Adv.
Respondent Advocate S.N. Shelat, Adv.
Cases ReferredHiralal Agarwalla v. The State. In
Excerpt:
- - it is also observed that in so far as the magistrate wants to be satisfied as to the genuineness or otherwise of certain writings it is quite open to him to ask the accused to write out certain words and figures in order that a comparison might be made between them and the disputed writings;.....also section 73 of the act 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. section 73 of the indian evidence act is the only provision where a court is empowered 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. now the question is whether under the provisions of section 73 of the indian evidence act, a court has any power to dictate to any witness or party to write any words or figures so that the words or figures written by that.....
Judgment:
ORDER

1. This revision application is directed against the order passed on 11th Feb., 1974 by the learned 3rd Joint Civil Judge (J. D.), Surat, directing the defendant to write in the open court contents of writings Q-1 and Q-2 as desired by the Assistant Government Examiner of Questioned Documents.

2. The petitioner is original plaintiff. The respondent is original defendant. The plaintiff filed civil suit no. 1207 of 1969 against the defendant for ejectment. The plaintiff relied upon the rent note dated 15-1-1962 in respect of the suit premises alleged to be executed by the defendant. The plaintiff also relied upon a writing dated 31st October, 1963 below the rent note. In the said suit the defendant filed an application dated 17th April, 1972 and contended that the defendant had put the signature at the end of the rent note, but the defendant had not put his signature at the end of the writing below the rent note. The defendant contended that the, writing below the rent note and signature below the said writing were, not in his hand-writing. The defendant by the said application requested that as he was disputing the signature and the writing at the foot of the rent note, the original rent note should be sent to the Examiner of Questioned Documents Intelligence Bureau, Simla. The court by its order dated 14th August, 1972 granted the said application and directed the defendant to take photo copy of the rent note and forward the same to the Examiner of Questioned Documents. Thereafter the defendant filed another application on 19th November 1973. In the said application the defendant averred that the rent note in question was sent to the Examiner of Questioned Documents for his opinion on the signature and writing below the rent note. The Examiner of Questioned Documents had sought for some directions. The defendant requested that the court might take specimen signature of the defendant in presence of the court, and allow the defendant to copy from the questioned writing and to send them to the Examiner of Questioned Documents for comparison with the disputed signature and writing.

3. This application was resisted by the plaintiff. It was contended on behalf of the plaintiff that the court had no authority to take any specimen signature or specimen writing of the defendant in the court for the purpose of sending the said signature and writing to the Examiner of Questioned Documents as the standard writings of the defendant for comparison with the disputed signature and writing on the alleged rent note. The learned Civil Judge overruled the objections raised by the plaintiff and observed that the defendant had admitted his signature at the end of the rent note and the schedule annexed to the rent note. However, the defendant had disputed the writings below his admitted signature in the rent note and the schedule and the signatures below those writings and contended that those writings and signatures were not in his hand writings. The defendant had moved the court by an application Exh. 38 dated 17th April 1972 to seek opinion of the Government Examiner of the Questioned Documents. By order dated 14th August, 1972, the documents in question were sent to the Examiner of Questioned Documents, Simla. The Government Examiner returned the documents stating that it was not possible to express any opinion on the questioned writings marked Q-1 and Q-2 on comparison with the standard writings marked A-1 and A-2. It was further observed that for expressing opinion on the questioned writings marked Q-1 and Q-2, further admitted genuine writings on some existing documents of defendant Ishwarlal Devchandbhai Kabrawala might be procured and sent to the Assistant Government Examiner of Questioned Documents. It was also observed that it would be desirable if the contents of Q-1 and Q-2 were dictated to the aforesaid person on a few sheets and those might also be sent. The learned Civil Judge, thereafter observed that there were no other admitted genuine writings on existing documents produced in the court, therefore, the only course open to the court was to obtain admitted writings by dictating the defendant to write the writings in the open court. The learned Civil Judge ordered that the contents of writings Q-1 and Q-2 shall be dictated in the open court as desired by the Assistant Government Examiner of Questioned Documents. The learned Civil Judge observed that in the interest of justice it was necessary to obtain such admitted writings on the plain sheets in the open court in presence of the presiding Officer.

4. The present revision application is filed against the aforesaid order passed by the learned Civil Judge. Mr.Kaji, learned Advocate for the plaintiff vehemently contended that the order passed by the learned Civil Judge for taking the writings of the defendant in presence of the court with a view to supply the standard writings to the Government Examiner of Questioned Documents for comparison with the disputed writings, was without jurisdiction and not warranted by any provisions of law, therefore, the order passed by the learned Civil Judge should be set aside. On the other hand Mr. S. N. Shelat, learned Advocate for the defendant vehemently relied upon Rule 78 of Chapter VII of Civil Manual, Volume I, and contended that the learn ed Civil Judge was justified in passing the order in question under the provisions of the aforesaid Rule 78. First I will consider the contention raised by Mr. Shelat, learned Advocate for the defendant as to whether the Court had power under R. 78 of the Civil Manual to pass the impugned order. In clause (B) of sub-rule (2) of Rule 78 it is provided that the applications from private parties in Civil suits in Indian Union Courts for examining the Government Examiner of Questioned Documents as a witness will be accepted only on requisition from the court in which the case is being heard. Therefore, if a private party in a civil suit wants services of the Government Examiner of Questioned Documents, he has to make an application to the court and it is for the court to take further steps necessary to obtain services of the Government Examiner of Questioned Documents. In sub-rule (2) of Rule 78 it is also clarified that even if a reference is made by a court suo motu in civil cases in which the State is not a party, the cases would be deemed to be the cases from private parties for the purpose of rules. Sub-rule (3) gives discretion to the Government Examiner of Questioned Documents whether to accept the applications or not, but he may refuse the application if it cannot be undertaken without detriment to his other work. Sub-rules (4) and (5) provide for the fees to be charged by the Government Examiner of Questioned Documents. The other sub-rules provide for other incidental matters. Therefore, in Rule 78 there is no provision enabling to take writings of a party or a witness in presence of the court with a view to supply the standard writings for comparison with the disputed writings. However, Mr. Shelat contended that the private party can examine the Government Examiner of the Questioned Documents as a witness according to sub-rules laid down in Rule 78 under orders of the court. Therefore, it was open to the court to supply standard writings of a party or a witness by dictating to the party or the witness in presence of the Court with a view to supply standard writings for comparison with the questioned writings. I am unable to accept this contention of Mr. Shelat. The provisions of sub-rules in Rule 78 only provide that when a private party wants the services of the Government Examiner of the Questioned Documents, it can be done so only on requisition from the Court in which the case is being heard. Therefore, there is no substance in the contention of Mr. Shelat, learned Advocate for the defendant that the order passed by the learned Civil Judge was in compliance with the provisions of Rule 78 in Chapter VII of the Civil Manual, Volume I. Section 73 of the Indian Evidence Act, 1872, empowers a court 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. Also Section 73 of the Act 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. Section 73 of the Indian Evidence Act is the only provision where a court is empowered 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. Now the question is whether under the provisions of Section 73 of the Indian Evidence Act, a court has any power to dictate to any witness or party to write any words or figures so that the words or figures written by that witness or party may be used as the standard writings or figures of that witness or party for comparison with any words or figures alleged to have been written by such person. The relevant part of Section 73 reads as under: -

'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.'

A plain reading of the aforesaid -provision of Section 73 shows that the clause limits the power of the court only to direct 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 in order to compare the words or figures so written with any words or figures alleged to have been written by such person. However, the aforesaid provision of Section 73 does not empower the court to direct any witness or party present before the court to take such writing for the purpose of its evidence, or its own case or for the purpose of using the said writing or words or figures as standard writings or figures for the purpose of comparison with the disputed writings. The said provision of Section 73 of the Evidence Act came up for interpretation before a Single Judge of the Bombay High Court in AIR 1958 Bom 207, State v. poonamchand Gupta. While interpreting the aforesaid provision of Section 73 of the Evidence Act, it is observed that in terms the second clause limits the power of the Court to directing a person present in Court to write any words or figure only where the Court itself is of the view that it is necessary for its own purposes to take such writing in order to compare the words or figures so written with any words or figures alleged to have been written by such person. The 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. Also the aforesaid provision of Section 73 was interpreted in AIR 1958 Cal 123, Hiralal Agarwalla v. The State. In the aforesaid decision it is observed that Section 73 cannot be construed as an instrument of case or a device to be used for the advancement of any party, either the prosecution or the accused. It is one of those sections where large powers are given to the court with the obvious object of enabling the court to find out the truth and to do complete justice between party and party; any other use of it would be wholly unjustified. It is also observed that in so far as the magistrate wants to be satisfied as to the genuineness or otherwise of certain writings it is quite open to him to ask the accused to write out certain words and figures in order that a comparison might be made between them and the disputed writings; but it is certainly not open to the Magistrate to hand the document over to the prosecution in order that they might make use of it as a piece of their own evidence, nor can he send the documents to an expert who is a prosecution witness.

5. From the aforesaid discussion it is very clear that the second clause of Section 73 of the Indian Evidence Act permits the court to direct any person to write words and figures for the purpose of comparison and such comparison is to be with a view to enable the court to form its own conclusion and in order that it might do the complete justice between party and party. The court is not entitled under Section 73 of the evidence Act to assist a party to the proceedings by asking any person to write any words or figures with a view that the words or figures may be used as standard writings for comparison with the alleged writings or figures. Section 73 entitles the court to assist itself to come to a proper conclusion in the interest of justice. Therefore, it is very clear that the learned Civil Judge had no authority to take the writings from the defendant in presence of the court with a view that the said writings may be used as the standard writings for comparison with the alleged disputed writings so as to assist the party. In view of the aforesaid discussion, the order passed by the learned Civil Judge is liable to be set aside.

6. In the result I allow this revision application, set aside the order passed by the learned Civil Judge on 11th February, 1974 and reject the application filed by the defendant. Rule made absolute. However, there will be no order as to costs under the circumstances of the case.

7. Revision petition allowed.


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