Substantive Evidence Preferable

A Supreme Court division bench consisting of Justice N.V.Ramana and Justice Mohan M. Shantanagoudar have declared in the judgment of the case - Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy (Dead) through LRs& Another, delivered on August 27, 2019, that in the words of the trial court, if the evidence of the attesting witnesses is cogent and reliable, then there is no reason why their evidence should be disbelieved to give way to the expert opinion.

Explaining its reason for its disinclination to place reliance on the opinion of the expert (Defendant’s Witness-DW-2), the Supreme Court has pointed out that from a perusal of his report, it is evident that barring the signature on a written statement in a prior suit , all other admitted signatures of the first defendant are of a period subsequent to the filing of the suit could not have been used as a valid basis of comparison, and their use for this purpose cast serious doubt on the reliability of entire report . Thus, the report was liable to be discarded on this ground alone, and was wrongly relied upon by the High Court.

Further, in the opinion of the Supreme Court, the HC has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded performance of sale after execution of the agreement of sale. A plaint which seeks the relief of specific performance of an agreement/contract must comply with all the requirements of relevant legal provisions. In the present case, the plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale of April 20, 1993.

It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs 58,800/- and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale.

In light of this, in the considered opinion of the Top Court, all the formalities, which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover there cannot be any proof of oral demand.

The two appeals in this case were directed against the impugned judgment of June 12, 2008 passed by the Andhra Pradesh High Court at Hyderabad in Appeal Suit and Cross-Objection cases.

Through its impugned judgment, the HC had reversed the judgment of the trial court of December 5, 2003 passed by the 3rd ADJ, Karimnagar in Original Suit 91/1996. The trial court had decreed the suit.

A suit for specific performance was filed by the plaintiff Chennadi Jalapathi in respect of the agreement of sale of April 20, 1993pertyaining to a house situated at Kaman Road, Karimnagar. The suit was initially filed against the first defendant. The second defendant was added subsequently. It is relevant to note that the plaintiff purchased half of the suit property from the second defendant after the impugned judgment was passed by the HC. The defendants in their written statement denied the case of the plaintiff, specifically alleging that the agreement of sale is forged.

After evaluating the material on record, the trial court decreed the suit. Through its impugned judgment, the HC dismissed the suit and disposed of the appeal and cross-objections arising from the judgment of the trial court. Hence, these appeals were preferred before the SC.

During the trial, the agreement of sale was sent for obtaining expert opinion on the genuineness of the signature of the first defendant thereon. DW-2 is the expert, who examined it and submitted report. He opined that the admitted signatures of the first defendant and the disputed signature do not tally, meaning thereby that it is forged. The trial court considered this opinion, but preferred not to rely on that, inasmuch as it ruled that the expert opinion was not corroborated by any reliable evidence. 

On the other hand, the HC solely relied upon the expert opinion and dismissed the suit by concluding that the signature of the first defendant on the agreement of sale (Ext. 1-A) is forged.

The Supreme Court has commented that the HC has not assigned any valid reason for disbelieving the attesting witnesses. In fact, with respect to their evidence, the HC made certain observations, which are against the evidence on record. It is clear that the HC disbelieved evidence of the plaintiff (PW1) and the attesters (PWs 2 and 3) on mere assumption and wrong reasons.         

The top court has stated that as rightly observed by the trial court, there is no reason to disbelieve these witnesses, whose evidence is consistent, cogent and reliable. Though they were subjected to lengthy cross-examination, nothing noteworthy has been brought out from their deposition to discard their evidence. Thus, the evidence of PWs 1, 2 and 3 fully supports the case of the plaintiff and in the SC’s considered opinion, the HC was not justified in rejecting their evidence.

The HC mainly relied upon the opinion evidence of DW-2 , the handwriting expert, who opined that the signature of the first defendant on the agreement of sale did not tally with his admitted signatures.

By now it is well settled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of such a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect reference can be made to a long line of precedents that includes Ram Chandra and Ram Bharosey v.  State of Uttar Pradesh – AIR 1957 SC 381, Shasdhi Kumar Banerjee v. Subodh Kumar Banerjee-AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab –(1977) 2 SCC 210 and S. Gopal Reddy v. State of Andhra Pradesh – (1996) 4 SCC 596.

In Shashi Kumar Banerjee’s case, the Constitution Bench of the Supreme Court has observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. 

The Supreme Court has expressed satisfaction on the basis of evidence on record that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract.

The Supreme Court has set aside the impugned judgment and order passed by the HC, restored the judgment and decree of the trial court and allowed the appeals.

 

R.S.Agrawal 
on 09 September 2019
Published in Others
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