THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
C.R.P.No.2035 of 2019
ORDER:
This revision petition arises out of the order dated 22.12.2018 in I.A.No.1056 of 2018 in O.S.No.429 of 2013 on the file of VI Additional District Judge, Visakhapatnam, dismissing the petition by a common order along with petition in I.A.No.1057 of 2018 in the same suit.
2. I.A.No.1056 of 2018 is filed under Section 45 of the Indian Evidence Act, 1872 to send the agreement of sale dated 30.12.2010 for comparison of the signature of the petitioner/D-1 to an Handwriting expert for the opinion with the other admitted signatures. I.A.No.1057 of 2018 is filed under Section 151 CPC to permit the petitioner to withdraw the amount deposited by the respondent/plaintiff in case the expert opinion reveals that the signature of the petitioner is forged one. The suit is filed for specific performance of agreement of sale dated 30.12.2010 by the first respondent herein against the petitioner and respondents 2 and 3. The petitioner filed written statement denying the signature on the agreement of sale and describing the document as rank forgery averring that she had never subscribed her signature on the agreement. In pursuance thereof, I.A.No.1056 of 2018 is filed.
3. The respondent/plaintiff filed counter stating that the petition is misconceived with an intention to harass the respondent, to make wrongful gain and thereby, cause wrongful loss. Learned counsel reiterated the pleadings taken by the plaintiff in the suit. Further, the respondent opposed the petition in the counter stating that the Court can compare the signature under Section 73 of the Indian Evidence Act and prayed to dismiss the petition.
4. Inspite of sending notice to the first respondent to the address given by her in the plaint, the same was returned with an endorsement 'addressee 2 left' and thereafter the revision petitioner has taken steps to serve the notice on the counsel appearing in the trial Court for the first respondent herein, but the notice was refused and accordingly, substitutes service of notice, by way of publication, in 'Vishalandra (Main Edition) having circulation in the Districts of Visakhapatnam and Srikakulam was taken. Yet, no appearance is made for the first respondent. Since the service of notice is held sufficient, this Court proceeded to hear the revision petitioner.
5. As can be seen from the impugned order, there is an observation that the defendant Nos.2 and 3 remained ex parte in the suit and have not even filed any written statement. They have not filed any counter in these petitions. As the subject is interrelated, the trial Court passed a common order in I.A.No.1056 of 2018 and I.A.No.1057 of 2018. Both petitions were dismissed. However, the petitioner has chosen to challenge the order in I.A.No.1056 of 2018 alone by filing revision petition. The lower Court observed in that order that the expenses shall be borne by the party who requests the Court to send the document for an opinion of an expert and in case the judgment favours the said person, Court may award costs which includes the expenses borne for seeking opinion of an expert, but the party/defendant cannot demand the plaintiff to bear the expenses. The findings cannot be found fault. The, order in I.A.No.1057 of 2018 has become final for not being challenged.
6. However, regarding the petition in I.A.No.1056 of 2018, the Court below observed that the agreement of sale is allegedly executed by D-1 to D-3 and D-2 and D-3 are slibbings of D-1 who filed this petition and that on behalf of D-2 and D-3, D-1 cannot contend that the signatures of D-2 and D-3 are forged on the agreement of sale. This observation of the Court below is against the record in view of the fact that the petitioner sought opinion of the expert 3 only to the extent of the disputed signature of D-1 only and filed the written statement also denying her signature alone.
7. Nextly, the Court below observed the petitioner/D-1 has not explained in the written statement why the plaintiff forged the signature of D-1 on the agreement of sale and has not explained the stand of D-2 and D-3 regarding the suit agreement of sale. It is a matter of appreciation of evidence whether the defendant is successful in proving her case in the light of the facts pleaded or omitted, including the failure to take a plea and prove the reason for such forgery. The scope of enquiry in an application under Section 45 of the Evidence Act cannot be stretched to appreciation of evidence at that juncture. The Court below is influenced by the fact that the case of the plaintiff is presumably supported by D-2 and D-3 as they remained ex parte. According to the Court, since the petitioner/D-1 could not explain the stand of D-2 and D-3, under these circumstances, no merit was found in favour of the petitioner. The petition was dismissed with these observations. As discussed above, there is no finding whether the disputed document can be sent for opinion of an expert to examine the signature of D-1 for the purpose of establishing her defence as set out in the written statement. The considerations extraneous to the point under enquiry have lead to dismissal of the petition.
8. According to the submission of the learned counsel for the petitioner, the signatures of the petitioner/D-1 contemporaneous to the period of the disputed document are available with the petitioner and the same can be made use for the purpose of examination of the disputed signature by comparison. It is not a question of delay in taking steps to get the disputed signature examined by an expert which has come in the way of the Court below to reject the relief claimed.
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9. Therefore, as the petitioner could make out grounds for seeking the opinion of an expert to establish her defence, it is just and necessary to permit the petitioner to seek such opinion. Thus, this Court finds that the impugned order is liable to be set aside and accordingly the revision petition shall be allowed.
10. In the result, the revision petition is allowed by setting aside the order dated 22.12.2018 in I.A.No1056 of 2018 in O.S.No.429 of 2013 on the file of VI Additional District Judge, Visakhapatnam. I.A.No.1056 of 2018 is allowed, subject to the condition that the petitioner shall bear the expenses for seeking the opinion of an expert and in this regard the petitioner shall initially make a deposit of Rs.5,000/- before the lower Court to meet the expenses for report of an expert and it is made clear that the expenses born by the petitioner forms part of costs of suit on her side.
Pending miscellaneous petitions, if any, shall stand closed.
_________________ B.S.BHANUMATHI, J Dt.23-02-2022 PNV 5 THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI C.R.P.No.2035 of 2019 PNV DATED: 23-0-2022