HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
C.R.P.Nos.5498 of 2012 and batch
30-11-2012
C.R.P.No.5498 of 2012
Syed Ali Moosvi
Zainulabeddin Moosvi and another
Counsel for the Appellant: Sri ajmal Ahmed
Counsel for Respondents: Sri Ali Farooq
<Gist:
>Head Note:
?Cases referred:
1. AIR 2001 AP 394
2. AIR 1969 PATNA 218
C.R.P.Nos. 5498, 5502 and 5513 of 2012
COMMON ORDER:
In these Civil Revision Petitions, common question of law and facts are
involved, and the parties are also same, hence they are being disposed of by
this common order.
2. These Civil Revision Petitions are filed under Article 227 of the
Constitution of India aggrieved by orders dated
25-07-2012 passed I.A.Nos.522 of 2012, 523 of 2012 and 521 of 2012 in O.S.No.60
of 2007 on the file of the Court of
IX Additional Chief Judge (Fast Track Court), City Civil Court at Hyderabad
(I.As).
3. The revision petitioner in all the petitions is the petitioner in the I.As
and plaintiff in the suit whereas the respondents in all the petitions are the
respondents in the I.As and defendants in the suit. For convenience sake, I
refer the parties as arrayed in the suit.
4. The plaintiff filed the suit
against the defendants who are his own
brothers, for partition of the plaint schedule property i.e., House bearing
No.8-2-334/32/34, "Golden Glory Guest House" situated at Road No.3, Banjara
Hills, Hyderabad, into three plots and allot one such share to him.
The claim
of the plaintiff is as follows:
He and the defendants have taken up many
ventures jointly. In that process they took up the work of construction of a
guest house at Banjara Hills for which the plaintiff contributed amounts in
accordance with his share.
During the progress of the work, the first defendant
assured that whatever amounts were taken from the plaintiff for the construction
of the guest house would be returned to him with interest.
Accordingly in that
context he prepared a document and handed over the same to the plaintiff.
In
fact
the document contains typed and handwritten block letter parts
respectively.
Below the typed part or parts therein the first defendant in his
own handwriting wrote that the said amount or amounts would be paid as soon as
Khairtabad lands were sold or the plan for constructing the complex was settled
and when they would get their share of amounts therefrom.
The document also
contains the statement that the project at 1) Aushapur land,
2) Moula Ali Land and 3) M/s. Ramada Crockery will be settled as per the will
and wish of the plaintiff and
in continuation of that, the first defendant wrote
in his own handwriting "But all four brothers should agree with your decision,
otherwise any of the four brothers can discuss the matter, before the
settlement".
The document comes within the definition of 'document' as defined
under Section 3 of the Evidence Act, 1872 (for short 'the Act').
But the
defendants have gone back and have been denying the payment.
Therefore, the
plaintiff has to establish the contents of the document which is related to the
main issue framed in the suit.
5. The plaintiff filed I.A.No.523 of 2012 to reopen the suit, I.A.No.522 of
2012 to direct the first defendant/DW-1 to give his specimen handwriting for
comparison with the disputed handwriting on the document and to send the
document to handwriting expert for examination along with the specimen
handwritings of the first defendant and report as to whether the disputed
handwritings were made by the first defendant or not, and I.A.No.521 of 2012 to
recall PW-1 and to mark the document (which was partly typed and partly
handwritten).
The Court below, after hearing both parties, dismissed all the
I.As. It is the observation of the Court below that the document does not
contain the signatures of the executant or executants and hence the execution of
it cannot be proved.
The document sought to be marked must be brought on record
as per law.
The contents of the document cannot be proved by merely producing it for the
inspection of the Court.
Therefore the document is an inadmissible one by
reason of which, the petitions are not tenable.
6. It is also the contention of the learned counsel for the plaintiff that
the document in question comes within the purview of the disputed document as
per the definition of Section 3 of the Act.
He further contends that the
contents of a document can be proved to establish an issue before a Court of law
even though the actual executant of it did not sign it. However, the question of
genuineness of the document or under what circumstances a part of the document
was got typed and the remaining part of it was written in handwriting can be
decided only basing upon necessary evidence to be recorded.
Without recording
such evidence and just on the apparent consideration of the contents of the
document, it is not reasonable to hold that it is an inadmissible document which
cannot be put in evidence and which cannot be established.
According to him,
the observation of the Court below in rejecting the document at the outset is
premature. Therefore, it needs for setting aside the orders in question.
7. On the other hand, learned counsel for the defendants has contended that
the order passed by the Court below is quite appropriate to interfere with it.
According to him the contents of the document cannot be established.
Further as
it cannot be marked as exhibit in evidence because it is inadmissible document,
the question of sending the document to handwriting expert for necessary
examination and report does not arise at all. He pleads that the C.R.Ps are
liable to be dismissed.
8. According to the plaintiff,
the document in question is a draft which is
not disputed.
So it is only an original document.
Therefore, it is to be seen
as to
whether the document can be sent to handwriting expert for examination and
report and further the contents of the document can be made use of for the
purpose of examining and deciding the issue with regards to the liability of the
first defendant to pay certain amount or amounts in connection with the
construction work in question.
9. It is necessary to examine what is meant by document as envisaged under
Section 3 of the Act.
It defines 'document' as meant "Any matter expressed or
described upon any substance by means of letters, figures or marks, or by more
than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter".
Therefore what is to be seen here is as to
whether the document in question comes within the purview of the definition of
the 'document'. Having gone through the document, it is very clear that there is
relevant material with regards to the repayment of the amount in connection with
the construction work. Therefore it is to be termed as 'document'.
10. What is significant is that the document sought to be relied upon contains
some typed matter and some handwritten matter.
The document in fact reads as
follows:
SOMAJIGUDA PROPERTY
1. HOUSE NO.6.3.1094 OF SOMAJIGUDA, HYDERABAD WILL NOT BE SOLD AT ANY COST
AND AT ANY CIRCUMSTANCES, BECAUSE IT IS VERY VALUABLE COMMERCIAL PLACE.
2. WHATEVER PROFIT WE WILL GET FROM KHAIRTABAD'S LAND EACH BROTHER WILL
CONTRIBUTE HIS SHARE TO CONSTRUCT COMMERCIAL COMPLEX AT SOMAJIGUDA.
3. THIS COMMERCIAL (AT SOMAJIGUDA) WILL BE DIVIDED INTO FIVE EQUAL PORTIONS
UNDER REGISTERED DOCUMENTS AND ALL FIVE BROTHERS WILL BE BENEFITED FROM ITS
INCOME EQUALLY.
---------------------------
1. AUSHAPUR LAND
2. MOULA ALI LAND
3. M/s.RAMADA CROCKERY
ALL ABOVE THREE PROPERTIES WILL BE SETTLED AS PER YOUR WILL AND WISH, BUT ALL
FOUR BROTHERS SHOULD AGREE WITH YOUR DECISION, OTHERWISE ANY OF THE FOUR
BROTHERS CAN DISCUSS THE MATTER, BEFORE THE SETTLEMENT.
BANJARA HILLS ROAD No.3
WHATEVER AMOUNT HAS BEEN TAKEN FROM MR. S.A. MOOSAVI FOR CONSTRUCTION OF THIS
PROJECT WILL BE RETURNED TO MR. S.A. MOOSAVI WITH INTEREST AS PER NRNR DEPOSIT
INTEREST RATE.
AS SOON AS THE KHAIRATABAD LAND'S SALE OR PLAN OF MAKING COMPLEX WILL BE
SETTLED, AND WE WILL GET OUR SHARE FROM IT.
11. It is also contended by the defendants that the so called original
document is not filed before the Court and unless sufficient explanation is
given with regards to what happened to the original, the question of considering
the draft for the purpose of establishing the claim of the plaintiff does not
arise.
In fact in BADRUNNISA BEGUM v. MOHAMOODA BEGUM 1, a copy of a so called
agreement was sought to be marked as secondary evidence but without producing
the original of it and also without explaining as to what happened to the
original. This Court held under those circumstances that the document was not
admissible in evidence.
Similar observations were made in GIRIDHAR PRASAD v. AMBIKA PRASAD THAKUR 2.
12. In fact the document was referred to the first defendant/DW-1 at the time
of his cross-examination, but he denied the same to be true and correct.
It is
not the case of the plaintiff that it is a copy of the original document.
On
the other hand it appears according to him that it is only the document in
original given by the first defendant.
In other words he is seeking for marking
the document treating it as only original document.
If it was written only as a
draft and no corresponding main document was executed, that is suffice to take
the former as the original.
In the absence of any other document, which can be
taken as the original, the question of taking the draft of it as secondary
evidence but not as primary evidence does not arise at all.
13. What is required here is as to
whether the contents of the document if
proved to be written by the first defendant create a nexus between the first
defendant and the amount or amounts promised to be paid.
If the contents of the
document are proved which actually establishes that nexus, definitely it will
have bearing upon the final judgment in the suit even though it was not signed
by the first defendant.
Apart from that as contended by the learned counsel for
the plaintiff the question of establishment of the execution of the document
requires adducing of necessary evidence from both sides on availing necessary
opportunities.
It is premature at this stage to decide as to
whether it is
inadmissible document or not by reason of which that cannot be taken into
consideration for the purpose of deciding the main issue in the suit.
If the
document contains only typed matter, no useful purpose will be served by sending
it to handwriting expert for necessary examination and report which in fact is
not the case here.
Execution or preparation of a document can be decided
sometimes even without there being necessary signature.
Therefore, the
observation made by the Court below dismissing the plea of the plaintiff to send
the document to handwriting expert for examination and report is not tenable.
At this stage it is only to be seen as to how best justice can be done either to
the plaintiff or the defendants as the case may be.
If all avenues available to
either of the parties to establish their respective claims are closed at this
stage, there would be no possibility to administer justice in the matter.
Also
simply because the manner of handwritings is in block letters, it is not correct
to say that the examination of those letters will not serve any purpose in the
present context. The defendants can be allowed to raise necessary objections
after receiving relevant report from the handwriting expert anyhow.
14. Hence, it is appropriate to give direction to the first defendant to give
his specimen handwritings before the Court below for sending those handwritings
along with the handwritings on disputed document to handwriting expert for
necessary examination and report.
15. In the result, all the Civil Revision Petitions are allowed setting aside
the orders passed by the Court below.
No costs.
16. Because of the disposal of the C.R.Ps, miscellaneous petitions pending, if
any, shall stand closed.
________________________
G. KRISHNA MOHAN REDDY, J
Date: 30-11-2012
