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Narasimha Rao Vs. Someswar Joshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 837 of 1954
Judge
Reported inAIR1957Mad210
ActsEvidence Act, 1872 - Sections 73; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantNarasimha Rao
RespondentSomeswar Joshi
Appellant AdvocateT.C.A. Bhashyam and ;T.C.A. Thirumalachari, Advs.
Respondent AdvocateM. Govinda Pillai, Adv.
DispositionRevision Petition dismissed
Cases ReferredGhose v. Emperor
Excerpt:
.....signature purporting to be his signature must be proved to be his before it can be compared with admitted signature - section 73 requires writing with which comparison is to be made or standard writing shall be admitted to have been written by person to whom it is attributed - in present case standard writing was admitted signature of petitioner in vakaiat and petition taken in court from petitioner - lower court rightly compared admitted and disputed signature of petitioner and decided that petitioner had affixed disputed signature - petition dismissed. - - , has been satisfied to this case. 5. the second condition, namely, that the disputed writing must purport to have been written by the same person as the writer of the admitted signatures is also satisfied here. even if the..........petitioner in open court were compared by the learned judge of the court of small causes with the disputed signature in ex. p. 1, and he came to the conclusion that the signature. purporting to be his in the promissory note, ex. p. 1. was really his.he was reinforced in this conclusion by the petitioners falling to reply to the demand notice. he therefore passed a decree against both the defendants for the suit amount, and costs aggregating to rs. 91-9-0. the petitioner took the matter up for a new trial but the learned judges dismissed the new trial application. hence this civil revision petition.3. the first defendant, who was ex parte in the trial court, did not move any further in the matter; and the decree has become final against him.4. i have perused the entire records, and heard.....
Judgment:

Panchapakesa Ayyar, J.

1. This is a petition by one Narasimha Rao, the second defendant in S. C. S. No. 3904 of 1949 on the file of the Court of Small Causes, Madras, to revise and set aside the judgment and decree of the Court of Small Causes, so far as he is concerned, and also the judgment and decree of the Court of Small Causes in N. T. A. No. 108 of 1953, so far as he is concerned.

2. The facts are briefly these: One Some-swara Joshi sued the petitioner and his brother, Suryanaryana, the first defendant, to recover the amount due on a promissory note, Ex. P. 1, executed by them jointly in his favour, for Rs. 650 on 10-1-1949, and for costs. At first both the defendants were absent, and the suit was decreed 'ex parte' against them. Subsequently, the petitioner alone applied and got the ex parte decree set aside.

Then he contended that he had not executed the suit promissory note, and that the signature in the suit promissory note purporting to be his was not really his, but was a forgery. The plaintiff was not a person acquainted with the signature of the second defendant, and so he could not give evidence regarding the genuineness of the signature purporting to be the second defendant's.

Nor was any witness examined who had seen the second defendant affix the purported signature or had seen him Write letters, or was acquainted with his handwriting. Nor was any handwriting expert examined. The signatures of the petitioner in his vakaiat and in petitions and the signatures given by the petitioner in open court were compared by the learned Judge of the Court of Small Causes with the disputed signature in Ex. P. 1, and he came to the conclusion that the signature. purporting to be his in the promissory note, Ex. P. 1. was really his.

He was reinforced in this conclusion by the petitioners falling to reply to the demand notice. He therefore passed a decree against both the defendants for the suit amount, and costs aggregating to Rs. 91-9-0. The petitioner took the matter up for a New Trial but the learned Judges dismissed the New trial application. Hence this civil revision petition.

3. The first defendant, who was ex parte in the trial court, did not move any further in the matter; and the decree has become final against him.

4. I have perused the entire records, and heard the learned counsel on both sides. Mr. T. O. A. Bashvam, the learned counsel for the petitioner, raised a very ingenious contention, namely, that the signature purporting to be the petitioner'sin the promissory note, Ex. P. 1, must be proved to be his, before it can be compared with the admitted signatures of his, or at least some witness should swear that he saw the petitioner affix the purported signature in the promissory note before it can be compared with the admitted signatures of the petitioner in the vakalat and petitions and those taken, in court.

He relied upon the ruling in -- Barindra-kumar Ghose v. Emperor', ILR 37 Cal 467 (A), and the observations of Jenkins O. J. at pp. 502 and 503. Those observations run as follows:

'The ordinary methods of proving handwritings are (i) by calling as a witness a person who wrote the document or saw it written, or who is qualified to express an opinion as to the handwriting by virtue of Section 47 of the Evidence Act; (ii) by a comparison of handwriting as provided in Section 73 of the Evidence Act; and (iii) by the admission of the person against whom the document is tendered.

A document does not prove itself, nor is an unproved signature proof of its having been written by the person whose signature it purports to bear.

In applying the provisions of Section 73 of the Evidence Act it is important not to lose sight of its exact terms. It does not sanction the comparison of any two documents, but requires that the writing with which the comparison is to be made, or the standard writing, as it may be called, shall be admitted or proved to have been written by the person to whom it is attributed, and next the writing to be compared with the standard or, in other words, the disputed writing, must purport to have been written by the same person that is to say the writing itself must state or Indicate thai- it was written by that person.'

This passage will not help the petitioner at fill. Here the standard writing was the admitted signature of the petitioner in the vakaiat and petition and those taken In court from the petitioner. It is not as if the admitted signatures were taken by compulsion, when it may become inadmissible, as Bo citizen of India can be compelled to do such an act and to render himself liable to financial liability.

It is admitted by Mr. Bashyam that the signatures in the vakaiat and petitions and the signatures in court were knowingly and willingly affixed by the petitioner. So the first condition mentioned by Jenkins O. J., has been satisfied to this case.

5. The second condition, namely, that the disputed writing must purport to have been written by the same person as the writer of the admitted signatures is also satisfied here. Mr. Bashyam concedes that the person described as having signed in the promissory note, Ex. P. 1, is this petitioner: His only contention Is that the description of the man who signed in Ex. P. 1 is Incorrect, and that this petitioner did not really affix his signature to it, and that it is a forgery.

I may illustrate what the second condition put by Jenkins C. J., means. Suppose the disputed signature in a document runs as 'Sacchariah Nehemiah, son of Jesudasan' and it is alleged that the real man who affixed the signature and took on the liability under the promissory note is Rama-nathan son of Viswanathan. whose admitted signature is tendered for comparison, no court can by any amount of comparison of the two handwritings hold Ramanathan to be the person liable for the signature running Saccharlah Nehemlah son of Jesudesan.

Even if the signature in the disputed document runs as Swaminathan of Mylapore, but thereis no description of that particular Swsminathan, and there is evidence that there are many Swami-nathans in Mylapore, and it cannot be proved that the person on whom the liability is sought to be foisted is the person described in the promissory note, the second condition wilt not be satisfied.But, here, the petitioner G. Narasimha Rao, was. admittedly the person described in the promissory note as the person who had taken on the liability under it along with his brother and had signed in it. So the second condition too has been satisfied.

6. Mr. Bashyam urged, as a last argument, that the promissory note in question was exhibited by the trial court only as against the first defendant, who remained ex parte, and not as against this petitioner. But there is no such reservation when Ex. p. 1 was marked as an exhibit. I have no doubt that it was exhibited as a whole, including the disputed signature, and that the only thing remaining for the plaintiff to do was to prove the disputed signature to be the real signature of this petitioner.

The lower court compared the admitted and disputed signatures of the petitioner and held that the petitioner had affixed the disputed signature in Ex. P. 1, and that it was genuine. It was entitled to do so. No doubt, Mr. Bashyam is right in saying that even the opinion of a handwriting expert, standing by itself, is rarely conclusive, and that the opinion or a layman, like the learned Judge of the Court of Small Causes, should not be held to be conclusive. But, then, I am sitting in revision, and it is well settled that this court sitting in revision, should not interfere unless there is a patent error and clear failure of justice, as in a case where there is no evidence or no jurisdiction. But this is not a case like that.

The only thing I want to do, therefore, is to relieve this petitioner of the liability to pay the plaintiff's coste in the trial court in the New Trial Application proceedings, and here, while making him jointly and severally liable for the decree amount along with the first defendant who will, of course, shoulder the suit costs awarded in the trial court, though it is doubtful how far he will be financially able to pay them.

7. With the above modification, I confirmthe judgment and decree of both the courts below,and dismiss this civil revision petition. No orderas to costs in this petition.


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