JABIRUNNISA BI Vs. KASI NAICKER

JUDGEMENT

(1.) THE unsuccessful plaintiff in the trial court is the appellant herein.

(2.) THE plaintiff has filed the suit O.S.No.202 of 1983 in the court of the Sub Judge, Chengalpattu for recovery of a sum of Rs.35,683.45 including interest due under promissory note executed by the defendants in favour of the plaintiff. THE plaintiff alleges that both the defendants received Rs.21,900 on 30.10.1980 and Rs.8,680 on 17.5.1982 and executed two promissory notes and they repaid Rs.1,900 and it was endorsed on 5.10.1983 and in spite of repeated demands, the defendants did not pay the amount and hence the suit.

(3.) I concur with the view taken by this Court in the decision cited supra. In the decision Fakhruddin v. The State of Madhya Pradesh , A.I.R. 1967 S.C. 1326 the Supreme Court has held that, ?The writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an Expert competent to the comparison of handwritings on a scientific basis. A third method is comparison by the court with the writing made in the presence of the court or admitted or proved to by the writing of the person. Both under Sec.45 and Sec.47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the court must satisfy itself by such means as are open that the opinion may be acted upon. Where an expert's opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its observation that it is safe to accept the opinion whether of the expert or other witness. ?? In O.Bharathan v. K.Sudhakaran O.Bharathan v. K.Sudhakaran O.Bharathan v. K.Sudhakaran , A.I.R. 1996 S.C. 1140 held that the court cannot examine the writings and the signatures of the parties. It is settled law that the court cannot compare the signatures. There must be some admitted signature of P.W.1 on the basis of which comparison has to be made, and the deposition came into existence after the dispute and so the signature in the deposition cannot be compared with the disputed signature in Ex.B-2 and so I find that the finding of the learned Subordinate Judge about the comparison of the signature of P.W.1 in Ex.B-2 with that in the deposition is not sustainable. The trial judge has also gone to the extent of saying that the figures mentioned in Exs.A-1 and A-2 are not round ones and thus they could have been arrived at by calculating the interest amount on amount paid on the mortgages.