Telangana High Court
Smt. Goondla Jyohti vs Kum. M.Anusha on 28 March, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
CIVIL REVISION PETITION Nos.535 and 937 of 2024
COMMON ORDER:
These are two Revision Petitions which have been filed in respect of the same Suit and the grievance also seems to be the same in these two Civil Revision Petitions. Therefore, this Court proceeds to decide the two Civil Revision Petitions by a common order.
2. Heard Mr. Chavali Ramanand, learned counsel for the petitioner in Civil Revision Petition Nos.937 and 535 of 2024 and Mr. Srinivas Velagapudi, learned counsel for the respondent Nos.1 to 3 in Civil Revision Petition Nos.937 and 535 of 2024.
3. For the sake of convenience, the parties hereinafter shall be referred to as they are arrayed before the Court below.
4. Civil Revision Petition No.535 of 2024 has been filed on 19.03.2024 aggrieved by the docket order dated 13.02.2024 whereby the Court of the XIV Additional Chief Judge, City Civil Court at Hyderabad, had rejected I.A.Nos.174, 175 and 176 of 2024 and without giving a breathing time to the parties, proceeded for hearing the case on the very same day. The matter was requested for an out of turn hearing by the learned PSK, J ::2:: C.R.P.Nos.535 and 937 of 2024 counsel for the petitioner at the first instance when it was strongly contended by him that after dismissing the I.A's on 13.02.2024 and while starting final hearing of the Suit, the Court below heard arguments of the defendants first before hearing the plaintiffs. Therefore, this Court granted an interim order staying the further proceedings before the Court below only on the ground that the procedure adopted by the Court below in hearing the defendants first before hearing the arguments of the plaintiffs.
5. Civil Revision Petition No.937 of 2024 has been filed assailing the order dated 13.02.2024 whereby the three (03) I.A's filed by the petitioner and of which rejection of I.A.No.175 of 2024 is what is under challenge in the instant Civil Revision Petition. Vide the said I.A., the petitioner had sought for a relief under Section 45 of the Indian Evidence Act read with Section 151 of CPC seeking for an expert opinion on the veracity of the signatures of DW.1 found of Exs. B.9, B.22 and B.50 with the admitted signatures of D1 available on the Vakalat as also in the written statement.
6. The brief facts relevant for disposal of the two Civil Revision Petitions are that, the Original Suit i.e. O.S.No.496 of 2010 has been filed for partition and separate possession in the PSK, J ::3:: C.R.P.Nos.535 and 937 of 2024 Suit schedule property. There was a Civil Revision Petition filed before the High Court i.e. Civil Revision Petition No.3354 of 2012 which stood disposed of on 08.11.2012 wherein the High Court had partly allowed the Civil Revision Petition. While modifying the order passed by the Court below in I.A.No.3399 of 2010 and while disposing of the Revision Petition, there was a specific direction given to the Court below to dispose of the said Suit within a period of six (06) months from the date of receipt of a copy of the order. The said order dated 08.11.2012 in spite of more than 12 ½ years having been passed, till date has not been honoured and the Suit is still pending consideration before the Court below. On some pretext or the other the matters continued travelling from Civil Court to the High Court and back.
7. One such instance is the present two Civil Revision Petitions in which this Court also at the first instance had granted an interim protection on 16.02.2024 so far as the further proceedings of the Suit are concerned. The ground for granting interim relief in Civil Revision Petition No.535 of 2024 was primarily on the ground that the Court below while hearing the matter had started hearing the defendants first even before the plaintiffs have started the arguments.
PSK, J
::4:: C.R.P.Nos.535 and 937 of 2024
8. However, when the matter was taken up for hearing today, learned counsel appearing for the respondent Nos.1 to 3 contended that since the learned counsel for the petitioner on 13.02.2024 was pre-occupied in another Court, he could not make it and therefore in that backdrop one of the respondents who was supporting the claim of the plaintiffs had started the arguments.
9. According to the learned counsel for the respondent Nos.1 to 3 since there was no clash of interest between the defendants who had started his arguments with the plaintiffs, no prejudice whatsoever would had caused to the interest of the plaintiffs nor was there any objection to the plaintiffs for the defendants in leading the arguments. This fact is not disputed by the learned counsel for the petitioner. He however contended that even otherwise the grievance could have been raised only by the plaintiffs and it cannot be permitted to be raised by the respondents herein.
10. After hearing the parties, this Court is convinced on the submissions made by the learned counsel for the respondent Nos.1 to 3 and does not find any illegality or procedural lapse for the Court below to have heard the respondents who is supporting the claim of the plaintiffs ahead of the plaintiffs.
PSK, J
::5:: C.R.P.Nos.535 and 937 of 2024
Thus, this Court does not find any merits calling for an interference or an appropriate direction to the Court below so far as Civil Revision Petition No.535 of 2024 is concerned and the same is rejected.
11. As regards the Civil Revision Petition No.937 of 2024, as is contended, the challenge is to the rejection of I.A.No.175 of 2024 by which an application under Section 45 of the Indian Evidence Act read with Section 151 of CPC stood rejected.
12. It would be relevant at this juncture to take note of the findings given by the Court of the XIV Additional Chief Judge, City Civil Court at Hyderabad, while rejecting the said application. For ready reference, the relevant portion of the findings is reproduced herein under:
"8. Sec.68 of the Indian Evidence Act requires examination of atleast one attesting witness to the Will to prove its execution in terms of Sec.63 of the Succession Act. If the attestor of the Will deed died, the defendant can examine the person who can identify the signature of the deceased attestor. In this case D1 and D3 are the two attestors of the Will deed. They were already examined and one of the attestor ie., DW3 identified his signature in the said Will. The report of an expert is only a opinion but not a conclusive proof. It is a settled position of law that expert opinion is only an opinion for corroboration and it is not a conclusive proof. Hence expert report cannot over ride the oral evidence adduced by the witness. The petitioner has a chance to confront the the said Will to these Defendants and also confronted to DW3, in this way she can prove its contents. Signatures of Oruganti Basaiah on Ex.B.9 is not disputed by DW3 one of the attestor, hence, the Court PSK, J ::6:: C.R.P.Nos.535 and 937 of 2024 will examine the evidence and ascertain the veracity of the evidence regarding the said document in main judgment.
9. With regard to Ex.B16 and B22 they are registered gift deeds. With regard to proof of a registered document, registration itself is a judicial notice unless it is proved otherwise. However the court will appreciate the evidence altogether following the rules of evidence. In the circumstances sending the above documents for the opinion of hand writing expert will not serve any purpose except causing delay."
13. From the explanation so provided by the Court below what is apparently evident is that the reasons assigned are well founded and has been well dealt with by the Court below while considering the contentions put forth by the learned counsel for the petitioner. This Court has no hesitation in holding that the order is a well-reasoned and speaking order.
14. Another fact which needs to be considered is that the need for an expert opinion of a signature would be primarily required in the event of attesting witnesses also not being alive. This in other words means that if there are attesting witnesses available, it is they who are required to be examined to prove the document. Moreover, the Court below was right when it held that mere opinion of a handwriting expert cannot be accepted as a conclusive proof. At the same time, the handwriting expert opinion also cannot be given more weightage than the deposition of the attesting witnesses who are alive and who are PSK, J ::7:: C.R.P.Nos.535 and 937 of 2024 willing to who and have also deposed before the Court below. The plaintiffs had ample opportunity to cross-examine these witnesses to hold that their contention is not acceptable.
15. It would also be relevant at this juncture to take note of the provisions of Section 68 and Section 69 of the Indian Evidence Act which again for ready reference are being reproduced herein under:
"68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]
69. Proof where no attesting witness found.--- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
16. Plain reading of Section 68 would indicate that for the purpose of proving a document, an attesting witness alive can prove the document and its execution. Section 69 also envisages PSK, J ::8:: C.R.P.Nos.535 and 937 of 2024 that it is only in the event of there being no attesting witness found, will a need to prove a document and its execution by other means which could include an expert opinion arise.
17. Upon plain reading of the statutory provisions i.e. Section 68 and Section 69 read with the findings of the Court below in paragraph Nos.8 and 9 which are reproduced in the preceding paragraphs, this Court does not find any strong case made out by the learned counsel for the petitioner calling for an interference with the impugned order dated 13.02.2024. The Civil Revision Petition No.937 of 2024 also stands rejected.
18. Accordingly, both the Civil Revision Petitions are dismissed. There shall be no order as to costs. As a sequel, miscellaneous petitions pending if any, shall stand closed.
__________________ P.SAM KOSHY, J Date: 28.03.2024 GSD