Telangana High Court
Bitla. Jayaprakash, vs Amrutham Pushpa, on 19 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
1
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL REVISION PETITION No.1136 of 2024
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of India, questions the legality of the order dated 12.03.2024 passed by the Principal Junior Civil Judge, Jangaon, (for short, 'the trial Court') in IA No.421 of 2023 in OS No.102 of 2013, this civil revision petition is filed. The revision petitioner herein is the defendant in the suit. For the sake of convenience of reference, the parties will hereinafter be referred as they were arrayed before the trial Court.
2. Heard Mr. Bethi Venkateshwarlu, learned counsel for the revision petitioner/defendant; and Mr. Ashok Reddy Kanathala, learned counsel for the respondent/plaintiff.
3. Brief facts of the case are that the plaintiff filed suit OS No.102 of 2013 for specific performance of contract based on an Agreement of Sale dated 30.01.1997.
The defendant filed the application IA No.421 of 2023 under Section 45 of the Indian Evidence Act read with Section 151 of the Code of Civil Procedure on the ground that the Agreement of Sale dated 30.01.1997 is fake and the husband of plaintiff created the said document by purchasing the document vide SL No.2406 dated 19.12.1986 from the Stamp Vendor 2 N. Laxmaiah at Jangaon, and forging the signature of defendant and therefore it is necessary to send the Agreement of Sale dated 30.01.1997 to hand-writing expert for comparison of signature of defendant with the signature contained in the said document so as to verify its genuineness.
The plaintiff filed counter to the said IA stating that the suit was filed on 22.04.2013; that the defendant filed his written statement and counter in the suit on 08.10.2013; issues were framed and cross examination of DWs.1 to 3 was completed and the suit is coming up for cross examination of DW-4 and at this belated stage the present application is filed only to cover lacunae and hence the application is not maintainable.
The trial Court dismissed the application by observing that the application was filed at a belated stage of ten years after filing of suit.
4. Learned counsel for the petitioner/defendant contends that the application was filed immediately after conclusion of defendant side evidence DWs.1 to 4 and there is no delay; that the application can be filed at any stage of the suit; that the defendant had categorically pleaded in the written statement that the suit was filed based on a forged document and as the burden lies on the defendant to prove his case, sending the impugned Agreement of Sale dated 30.01.1997 for expert opinion for comparison of admitted signature of defendant with that of the signature 3 contained in that Agreement of Sale is necessary and therefore the trial Court erred in dismissing the application on the ground of belated stage is not a valid ground and hence the impugned order is liable to be set aside. Learned counsel relied on the judgment of this Court in Badavath Srinivas v. RatnavathGopal 1.
5. Per contra, learned counsel for the respondent/plaintiff would contend that the trial Court rightly dismissed the application on the ground of belated stage as the defendant filed his written statement ten years ago and, after completion of defendants' side evidence, filed the present application to cover up the lacunae in his case. Learned counsel relies on the judgment of High Court of Andhra Pradesh in DaraSrinivasaRao v. Nallamilli Venkata Reddy 2.
6. Having considered the respective submissions, and perusing the impugned order, it is to be noted that the burden of proof lies on the defendant when he is disputing the document as forged. It is pertinent to note that this Court in Badavath Srinivas (1 supra), while discussing the law laid down by the Hon'ble Supreme Court in Ajit Savant Majagvai v. 1 Civil Revision Petition No.2471 of 2023 2 2020 SCC OnLine AP 1258 4 State of Karnataka 3and also in Ajay Kumar Parmar v. State of Rajasthan 4, held as under:
"17. In the light of the aforesaid discussion, coming to the facts of the present case, as discussed above, the petitioner herein-defendant laid foundation by contending in the written statement that the suit promissory note was forged one. The petitioner cross-examined PW.1 (Plaintiff) on 11.04.2022, tried to elicit truth, but he could not. Therefore, on the very same day itself, he has filed the aforesaid application. There is no delay. Even if there is delay in filing the application, the object and purport of Section-45 of the Evidence Act is to be considered by the trial Court and this Court. When there is specific denial by the petitioner-defendant that his signature was forged, it is not safe for the trial Court to come to a conclusion that the defendant did not explain the reasons properly for the delay caused in filing the aforesaid application. The said finding is contrary to the object and purport of Section-45 of the Evidence Act and record. The said principle was also reiterated by this Court in KatikeBheem Shankar v. Mrs. T. Laxmi @ Punyavathi. As rightly contended by learned counsel for the petitioner that no prejudice would be caused to the respondent-plaintiff in obtaining expert opinion by sending Ex.A1-promissory note dated 13.11.2011."
7. Having perused the judgments relied on by both the learned counsel, this Court is of the view that no prejudice would be caused if the disputed document viz., Agreement of Sale dated 30.01.1997 is sent to handwriting expert for comparison of signatures of the defendant. In that view of the matter, the impugned order is liable to be set aside. 3 (1997) 7 SCC 110 4 (2012) 12 SCC 406 5
8. Accordingly, the civil revision petition is allowed by setting aside the order dated 12.03.2024 passed by trial Court in IA No.421 of 2023 in OS No.102 of 2013. No costs. Miscellaneous petitions, if any pending, shall stand closed.
______________________________ Justice NageshBheemapaka 19th July, 2024 ksm