EXPERT OPINION AND CLAIM PETITIONS PROCEDURES = A TENANT CAN NOT MAINTAIN CLAIM PETITION UNDER Or.21, Rule 97 C.P.C. = Order XXI Rule 58 C.P.C an executing Court is empowered to entertain claims preferred to or objections made to attachment of any property in execution of a money decree on the ground that such property is not liable to such attachment. In execution proceedings relating to decree for delivery of possession of immovable property, there is no element of attachment of any property involved at any stage and it follows that no question of making adjudication of claims or objections to attachment of such property arises.; Or.21, Rule 95 = Rule 95 of Order XXI C.P.C sets out the procedure for delivery of property in occupation of the judgment debtor.; Order XXI Rule 96 C.P.C = In case there is a tenant in the property to be delivered, Rule 96 of Order XXI C.P.C sets out the procedure for delivery in execution of such a decree for possession. ; Order XXI Rule 97 C.P.C = can be invoked by either a decree holder who is holding a decree for possession of immovable property or purchaser of any portion of such property sold in execution of a decree, in case he is resisted or obstructed by any 3rd person from obtaining possession of the property, and no others.; Order XXI Rule 99 C.P.C = Whereas a third party who is not bound by the decree under execution is dispossessed by a decree holder or Court auction purchaser of that property, then such third party other than judgment debtor and who is not bound by the decree for possession under execution and who has independent right dehors the Judgment debtor in the property delivered, can make an application under Order XXI Rule 99 C.P.C to the Court complaining of such dispossession, in which case the Court has to adjudicate upon such application of a third party who is wrongfully dispossessed in execution of a decree for possession. ; EXPERT OPINION- NOT A SCIENCE - NOT A CONCLUSIVE ONE - COURT CAN COMPARE THE SAME IF NEEDS = there was no necessity for sending the documents to an expert as the Court itself can undertake such comparison to come to an opinion of its own in exercise of power under Section 73 of the Indian Evidence Act, 1872.= Comparison of hand writings or signatures is not a science at all much less any scientific approach is involved in making such comparison. It is only an art which has to be acquainted by experience. In so far as judicial officers in this State are concerned, they are provided with the subject of introduction to comparison of signatures and hand writings during their basic induction course at the time of their induction into the subordinate judiciary after their selection. They are taken to several premier forensic and scientific institutions for practical experience and also are provided with lectures by faculty on the above subject in the Andhra Pradesh Judicial Academy. It is not as if judicial officers undertake the power under Section 73 of the Indian Evidence Act, 1872 in a gullible manner. They are provided with basic confidence in undertaking this subject. It cannot be said that the lower Court which is a Court presided over by a senior subordinate judicial officer cannot undertake the work of comparison of signatures in exercise of power under Section 73 of the Indian Evidence Act, particularly when that Court did not entertain any doubt on this aspect of the matter. 10) After all, evidence of a person who claims to be an expert, is not conclusive. An expert's evidence has to be scrutinized and adjudicated again by the Court, like any other witness for the party, as to his approach to his conclusion and also reliability of such report.
PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9680
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CIVIL REVISION PETITION No.5192 of 2012
04-03-2013
J.Krishna
Maliram Agarwal and 16 others
Counsel for the Petitioner : Sri A.Pulla Reddy
Counsel for the Respondents 2 to 8: Sri Bankatlal Mandhani
<Gist :
>Head Note:
?Cases referred:
1. AIR 1997 Supreme Court 3255
2. 1999(1) ALT 222
ORDER:
This revision petition is filed under Section 115 C.P.C questioning order
passed by the lower Court refusing to send admitted signatures and disputed signatures in the documents to an expert for the purpose of comparison and report.
It is stated that the respondents 1 to 8
after obtaining decree for possession of the suit property in O.S. No.682 of 1982, filed E.P. No.72 of 2007
in the lower Court for delivery of possession against the respondents 9 to 17
who are the judgment debtors and that in that execution petition,
the petitioner
filed a claim petition (?) by way of E.A. No.142 of 2011 under
Order XXI Rule 97
C.P.C claiming himself to be tenant in the decree schedule property under the
deceased 1st J.Dr, G.Kishan Rao and
that during the course of enquiry in that
claim petition,
the claim petitioner filed the present E.A. No.375 of 2012 under Section 45 of the Evidence Act, 1872 to send the documents to expert for comparison of signatures and report.
2) When this Court questioned the petitioner's counsel as to how a claim
petition is maintainable under Order XXI Rule 97 C.P.C in delivery proceedings,
the revision petitioner's counsel raised objection stating that this Court may
not go into merits of the case in this revision petition as subject matter of
this revision petition pertains only to sending disputed documents and admitted
documents to an expert for comparison of signatures.
It may be noted that this
Court is not making any adjudication on respective rights of the parties in the
suit property,
but this Court's question relates to only the procedure i.e.,
regularity or irregularity of the procedure in entertaining a claim petition in execution proceedings relating to decree for delivery of possession.
3) It is only under Order XXI Rule 58 C.P.C an executing Court is empowered to entertain claims preferred to or objections made to attachment of any property in execution of a money decree on the ground that such property is not liable to such attachment. In execution proceedings relating to decree for
delivery of possession of immovable property, there is no element of attachment of any property involved at any stage and it follows that no question of making adjudication of claims or objections to attachment of such property arises.
When there is no attachment at all, there is no question of adjudication of claims or objections to the attachment.
4) Rule 95 of Order XXI C.P.C sets out the procedure for delivery of
property in occupation of the judgment debtor.
In case there is a tenant in the
property to be delivered,
Rule 96 of Order XXI C.P.C sets out the procedure for delivery in execution of such a decree for possession.
Order XXI Rule 97 C.P.C
can be invoked by either a decree holder who is holding a decree for possession
of immovable property or purchaser of any portion of such property sold in execution of a decree,
in case he is resisted or obstructed by any 3rd person
from obtaining possession of the property, and no others.
Whereas a third party
who is not bound by the decree under execution is dispossessed by a decree holder or Court auction purchaser of that property, then such third party other than judgment debtor and who is not bound by the decree for possession under execution and who has independent right dehors the Judgment debtor in the property delivered, can make an application under Order XXI Rule 99 C.P.C to the Court complaining of such dispossession, in which case the Court has to adjudicate upon such application of a third party who is wrongfully dispossessed in execution of a decree for possession.
It is un-understandable as to how the
lower Court entertained E.A.No.142 of 2011 filed by the revision petitioner for the relief claimed therein, in the absence of and even prior to his dispossession in execution of the decree.
5) It is complaint against the revision petitioner that he is bent upon
dragging the execution proceedings by filing one petition or the other in his so
called claim petition, in spite of there being a direction from this High Court
previously more than one year back for disposal of the so called claim petition
within six months.
The present petition for sending documents to expert for
comparison of signatures was filed by the revision petitioner in the lower Court
after completion of enquiry in his so called claim petition and when the
petition was being posted for arguments.
6) It is also pointed out that previously also the revision petitioner
filed similar petition in the lower Court in the midst of enquiry, but he
withdrew the said petition.
It is pointed out by the revision petitioner's
counsel that the revision petitioner withdrew previous similar petition with
permission for renewal of the same at another point of time.
Though the
revision petitioner made endorsement on the previous petition seeking permission
to give liberty to file fresh petition after withdrawing the then existing
petition, the lower Court did not make any formal order expressly permitting or
giving liberty to the revision petitioner to file similar petition again.
Previous proceedings are pointed out, not to prevent the petitioner on
technicalities but to show lack of bonafides and intention of the petitioner to
drag on the execution proceedings which are pending in the lower Court since a
long time.
7) Be that as it may, the revision petitioner sought for sending admitted
signatures contained in Exs.A-84 to A-86 along with disputed signatures
contained in Exs.A-21, A-22, A-73 and A-74 to an expert for the purpose of
comparing signatures of late G.Kishan Rao (1st J.Dr) for giving report. Exs.A-
84 to A-86 are signatures of Kishan Rao contained in Ex.A-83 document.
According to the petitioner, late G.Kishan Rao passed Exs.A-20, A-21, A-73 and
A-74 rent receipts to him. R.W-1/decree holder in his cross-examination denied
the same. Whereas R.W-1 in his cross-examination is stated to have admitted
signatures of G.Kishan Rao in Ex.A-83 as per Exs.A-84 to A-86 and stated that
signature in 4th page of the said document is not matching with signatures in
pages 1 to 3. Therefore, the revision petitioner wanted to send the documents
to an expert for comparison of signatures.
The lower Court while exercising its
discretionary jurisdiction, came to the conclusion that there was no necessity for sending the documents to an expert as the Court itself can undertake such comparison to come to an opinion of its own in exercise of power under Section 73 of the Indian Evidence Act, 1872.
8) Sheet anchor of the revision petitioners' counsel is
Ajit Savant Majagavi V. State of Karnataka1 of the Supreme Court
wherein the Supreme Court
while advising cautious approach in such matters, recognized undoubted power of
the Court under Section 73 of the Indian Evidence Act in the following terms:
"38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest
doubt leave the matter to the wisdom of experts.
But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act".
The revision petitioners' counsel also placed reliance on
M.Rama Swarajya Lakshmi V. P.Satyanarayana2 of this Court
wherein this Court in the light of
facts and circumstances of that particular case came to the conclusion that it would be appropriate to send disputed documents for the opinion of hand writing expert.
The Supreme Court in Ajit Savant Majagavi (1 supra) reiterated power of a
Court to compare the disputed signatures with the admitted signatures and upheld
the power in unequivocable tone. At the same time the Supreme Court advised the
Courts to go in a cautious manner, only when the Court entertains a doubt.
9) Comparison of hand writings or signatures is not a science at all much less any scientific approach is involved in making such comparison.
It is only an art which has to be acquainted by experience.
In so far as judicial officers in this State are concerned, they are provided with the subject of introduction to comparison of signatures and hand writings during their basic induction course at the time of their induction into the subordinate judiciary after their selection.
They are taken to several premier forensic and scientific institutions for practical experience and also are provided with lectures by faculty on the above subject in the Andhra Pradesh Judicial Academy.
It is not as if judicial officers undertake the power under Section 73 of the Indian Evidence Act, 1872 in a gullible manner.
They are provided with basic confidence in undertaking this subject. It cannot be said that the lower Court which is a Court presided over by a senior subordinate judicial officer cannot
undertake the work of comparison of signatures in exercise of power under Section 73 of the Indian Evidence Act, particularly when that Court did not entertain any doubt on this aspect of the matter.
10) After all, evidence of a person who claims to be an expert, is not conclusive.
An expert's evidence has to be scrutinized and adjudicated again by the Court, like any other witness for the party, as to his approach to his conclusion and also reliability of such report.
Therefore, having regard to all the above facts and circumstances of this case, I find no error in the judicial discretion exercised by the lower Court in refusing to send the disputed documents and admitted document to expert for comparison of signatures.
11) In the result, the revision petition is dismissed.
____________________________
SAMUDRALA GOVINDARAJULU,J
Dt.4th March, 2013
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CIVIL REVISION PETITION No.5192 of 2012
04-03-2013
J.Krishna
Maliram Agarwal and 16 others
Counsel for the Petitioner : Sri A.Pulla Reddy
Counsel for the Respondents 2 to 8: Sri Bankatlal Mandhani
<Gist :
>Head Note:
?Cases referred:
1. AIR 1997 Supreme Court 3255
2. 1999(1) ALT 222
ORDER:
This revision petition is filed under Section 115 C.P.C questioning order
passed by the lower Court refusing to send admitted signatures and disputed signatures in the documents to an expert for the purpose of comparison and report.
It is stated that the respondents 1 to 8
after obtaining decree for possession of the suit property in O.S. No.682 of 1982, filed E.P. No.72 of 2007
in the lower Court for delivery of possession against the respondents 9 to 17
who are the judgment debtors and that in that execution petition,
the petitioner
filed a claim petition (?) by way of E.A. No.142 of 2011 under
Order XXI Rule 97
C.P.C claiming himself to be tenant in the decree schedule property under the
deceased 1st J.Dr, G.Kishan Rao and
that during the course of enquiry in that
claim petition,
the claim petitioner filed the present E.A. No.375 of 2012 under Section 45 of the Evidence Act, 1872 to send the documents to expert for comparison of signatures and report.
2) When this Court questioned the petitioner's counsel as to how a claim
petition is maintainable under Order XXI Rule 97 C.P.C in delivery proceedings,
the revision petitioner's counsel raised objection stating that this Court may
not go into merits of the case in this revision petition as subject matter of
this revision petition pertains only to sending disputed documents and admitted
documents to an expert for comparison of signatures.
It may be noted that this
Court is not making any adjudication on respective rights of the parties in the
suit property,
but this Court's question relates to only the procedure i.e.,
regularity or irregularity of the procedure in entertaining a claim petition in execution proceedings relating to decree for delivery of possession.
3) It is only under Order XXI Rule 58 C.P.C an executing Court is empowered to entertain claims preferred to or objections made to attachment of any property in execution of a money decree on the ground that such property is not liable to such attachment. In execution proceedings relating to decree for
delivery of possession of immovable property, there is no element of attachment of any property involved at any stage and it follows that no question of making adjudication of claims or objections to attachment of such property arises.
When there is no attachment at all, there is no question of adjudication of claims or objections to the attachment.
4) Rule 95 of Order XXI C.P.C sets out the procedure for delivery of
property in occupation of the judgment debtor.
In case there is a tenant in the
property to be delivered,
Rule 96 of Order XXI C.P.C sets out the procedure for delivery in execution of such a decree for possession.
Order XXI Rule 97 C.P.C
can be invoked by either a decree holder who is holding a decree for possession
of immovable property or purchaser of any portion of such property sold in execution of a decree,
in case he is resisted or obstructed by any 3rd person
from obtaining possession of the property, and no others.
Whereas a third party
who is not bound by the decree under execution is dispossessed by a decree holder or Court auction purchaser of that property, then such third party other than judgment debtor and who is not bound by the decree for possession under execution and who has independent right dehors the Judgment debtor in the property delivered, can make an application under Order XXI Rule 99 C.P.C to the Court complaining of such dispossession, in which case the Court has to adjudicate upon such application of a third party who is wrongfully dispossessed in execution of a decree for possession.
It is un-understandable as to how the
lower Court entertained E.A.No.142 of 2011 filed by the revision petitioner for the relief claimed therein, in the absence of and even prior to his dispossession in execution of the decree.
5) It is complaint against the revision petitioner that he is bent upon
dragging the execution proceedings by filing one petition or the other in his so
called claim petition, in spite of there being a direction from this High Court
previously more than one year back for disposal of the so called claim petition
within six months.
The present petition for sending documents to expert for
comparison of signatures was filed by the revision petitioner in the lower Court
after completion of enquiry in his so called claim petition and when the
petition was being posted for arguments.
6) It is also pointed out that previously also the revision petitioner
filed similar petition in the lower Court in the midst of enquiry, but he
withdrew the said petition.
It is pointed out by the revision petitioner's
counsel that the revision petitioner withdrew previous similar petition with
permission for renewal of the same at another point of time.
Though the
revision petitioner made endorsement on the previous petition seeking permission
to give liberty to file fresh petition after withdrawing the then existing
petition, the lower Court did not make any formal order expressly permitting or
giving liberty to the revision petitioner to file similar petition again.
Previous proceedings are pointed out, not to prevent the petitioner on
technicalities but to show lack of bonafides and intention of the petitioner to
drag on the execution proceedings which are pending in the lower Court since a
long time.
7) Be that as it may, the revision petitioner sought for sending admitted
signatures contained in Exs.A-84 to A-86 along with disputed signatures
contained in Exs.A-21, A-22, A-73 and A-74 to an expert for the purpose of
comparing signatures of late G.Kishan Rao (1st J.Dr) for giving report. Exs.A-
84 to A-86 are signatures of Kishan Rao contained in Ex.A-83 document.
According to the petitioner, late G.Kishan Rao passed Exs.A-20, A-21, A-73 and
A-74 rent receipts to him. R.W-1/decree holder in his cross-examination denied
the same. Whereas R.W-1 in his cross-examination is stated to have admitted
signatures of G.Kishan Rao in Ex.A-83 as per Exs.A-84 to A-86 and stated that
signature in 4th page of the said document is not matching with signatures in
pages 1 to 3. Therefore, the revision petitioner wanted to send the documents
to an expert for comparison of signatures.
The lower Court while exercising its
discretionary jurisdiction, came to the conclusion that there was no necessity for sending the documents to an expert as the Court itself can undertake such comparison to come to an opinion of its own in exercise of power under Section 73 of the Indian Evidence Act, 1872.
8) Sheet anchor of the revision petitioners' counsel is
Ajit Savant Majagavi V. State of Karnataka1 of the Supreme Court
wherein the Supreme Court
while advising cautious approach in such matters, recognized undoubted power of
the Court under Section 73 of the Indian Evidence Act in the following terms:
"38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of slightest
doubt leave the matter to the wisdom of experts.
But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act".
The revision petitioners' counsel also placed reliance on
M.Rama Swarajya Lakshmi V. P.Satyanarayana2 of this Court
wherein this Court in the light of
facts and circumstances of that particular case came to the conclusion that it would be appropriate to send disputed documents for the opinion of hand writing expert.
The Supreme Court in Ajit Savant Majagavi (1 supra) reiterated power of a
Court to compare the disputed signatures with the admitted signatures and upheld
the power in unequivocable tone. At the same time the Supreme Court advised the
Courts to go in a cautious manner, only when the Court entertains a doubt.
9) Comparison of hand writings or signatures is not a science at all much less any scientific approach is involved in making such comparison.
It is only an art which has to be acquainted by experience.
In so far as judicial officers in this State are concerned, they are provided with the subject of introduction to comparison of signatures and hand writings during their basic induction course at the time of their induction into the subordinate judiciary after their selection.
They are taken to several premier forensic and scientific institutions for practical experience and also are provided with lectures by faculty on the above subject in the Andhra Pradesh Judicial Academy.
It is not as if judicial officers undertake the power under Section 73 of the Indian Evidence Act, 1872 in a gullible manner.
They are provided with basic confidence in undertaking this subject. It cannot be said that the lower Court which is a Court presided over by a senior subordinate judicial officer cannot
undertake the work of comparison of signatures in exercise of power under Section 73 of the Indian Evidence Act, particularly when that Court did not entertain any doubt on this aspect of the matter.
10) After all, evidence of a person who claims to be an expert, is not conclusive.
An expert's evidence has to be scrutinized and adjudicated again by the Court, like any other witness for the party, as to his approach to his conclusion and also reliability of such report.
Therefore, having regard to all the above facts and circumstances of this case, I find no error in the judicial discretion exercised by the lower Court in refusing to send the disputed documents and admitted document to expert for comparison of signatures.
11) In the result, the revision petition is dismissed.
____________________________
SAMUDRALA GOVINDARAJULU,J
Dt.4th March, 2013
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