Andhra Pradesh High Court - Amravati

Sai Vineetha Junior College vs Killi Tavitayya on 7 December, 2022

        HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

             CIVIL REVISION PETITION No.165 of 2022

   Between:

   Sai Vineetha Junior College, Pundi R.S,
   Peddamuraharipuram village, Vajrapukotturu
   Mandal, Srikakulam District, rep. by its
   Correspondent Kanithi Lakshminarayana.
                                    ... Petitioner/Defendant.
             Versus

   Killi Tavitayya, S/o Lakshmana, aged 40
   years,      R/o      Kamadenuva   village,
   Peddalavunipalem Post, Nandigama Mandal,
   Srikakulam District.
                                   ... Respondent/Plaintiff.


Counsel for the petitioner            : Sri Venkateswarlu Kolla
Counsel for respondent                : Sri A.Ravi Shankar

                              ORDER

Defendant in the suit filed the above revision against

the order dated 16.12.2021 in I.A.No.220 of 2021 in

O.S.No.25 of 2016 on the file of VI Additional District Judge,

Sompeta.

2. Plaintiff filed suit O.S.No.25 of 2016 against the

defendant for recovery of Rs.15,10,372/- towards arrears of

salary.

3. The case of the plaintiff, in brief, is that defendant

appointed the plaintiff as junior lecturer in Civics on

07.06.2006; that plaintiff joined in service and continuing as

junior lecturer; that plaintiff's services, being junior lecturer,

were also utilized as examiner by the Board of Intermediate

Education and the plaintiff's college used to issue relieving

orders to attend the said work every year; that plaintiff was

paid salary till December, 2011 as per the scales of

government; defendant stopped paying salary from January,

2013 and promised to pay the salary later, due to financial

contingencies; that arrears of salary from January, 2013 to

December, 2013 comes to Rs.12,32,566/-; that plaintiff got

issued legal notice dated 15.02.2016 and filed the suit for

recovery of amount.

4. Defendant filed written statement and contended

interalia that the plaintiff worked as part-time lecturer for the

academic years 2006 and 2007 and thereafter plaintiff left

the college without intimation either to principal or to

management; that plaintiff worked in various colleges and

degree colleges at the relevant period claimed by the plaintiff;

that appointment order dated 07.06.2006 alleged to have

been issued by the correspondent is rank forgery; that the

principal, who issued letter dated 07.06.2006 is not a

principal at that time; that relieving order dated 26.03.2015

alleged to have issued by the principal is without the consent

and knowledge of the defendant; that plaintiff is not an

employee from the academic year 2008 and eventually prayed

the Court to dismiss the suit.

5. Pending the suit, defendant filed I.A.No.220 of 2021

under Section 45 of the Indian Evidence Act to send Ex.A-4

appointment letter dated 07.06.2006 issued by the principal,

P.W.2 and Ex.A-5 appointment order dated 07.06.2006

issued by the petitioner organization to the Neutron

Activation Analysis Baba Atomic Research Center, BARC,

Mumbai to determine the age of signatures and contents of

Exs.A-4 and A-5 to know the genuineness of the documents.

6. In the affidavit filed in support of the petition, it was

contended interalia that plaintiff basing on the documents

such as appointment order dated 07.06.2006 filed the suit;

that those documents are ante-dated just prior to filing of the

suit; that signatures of correspondent is also forged by the

plaintiff; that to ascertain the truth of above mentioned

exhibits and their age, the documents are required to be sent

to the expert to determine the age of ink.

7. Respondent filed counter and opposed the application.

In the counter, it was contended interalia that while plaintiff

was working as a junior lecturer, defendant deputed him to

spot valuation as examiner from 2007 onwards; that relieving

order by the defendant and appointment orders for the said

purpose were marked as Exs.A-6 to A-12; that he also

marked Exs.A-16 to A-21 issued by the defendant college to

establish that he was conducting classes in the defendant

college; that Exs.A-13 and A-14 are legal notice and

acknowledgment; that at the request of defendant suit

underwent several adjournments for cross examination of

P.W.2; that defendant did not enter into witness box to deny

the signatures on Exs.A-4 and A-5 and to drag the

proceedings this application is filed and prayed to dismiss the

same.

8. By order dated 16.12.2021, trial Court dismissed the

application. Aggrieved by the same, the above revision is filed.

9. Heard Sri Venkata Ramarao Kota, learned counsel

representing Sri Venkateswarlu Kolla, learned counsel for

petitioner and Sri A.Ravi Shankar, learned counsel for

respondent.

10. Learned counsel for petitioner would submit that

determination of age of ink in Exs.A-4 and A-5 will help to

decide the claim of plaintiff. He would also submit that in

view of specific defence raised in written statement,

determination of age of ink in Exs.A-4 and A-5 is essential.

He would submit that since the trial Court failed to consider

these aspects, he thus prayed to set aside the order passed

by the trial Court.

11. Learned counsel for respondent supported the order of

the trial Court.

12. Now, the point for consideration is:

Whether the trial Court failed to exercise jurisdiction vested with it in sending Exs.A-4 and A-5 for determination of age of ink?

13. In Shashi Kumar Banerjee and Ors. vs. Subodh

Kumar Banerjee1, the Hon'ble Apex Court held thus:

"23. Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on "Questioned Documents" at p. 464 says even with respect to chemical tests that "the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based". In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances."

14. In Kambala Nageswara Rao Vs. Kesana Balakrishna2,

learned single Judge of the composite High Court of Andhra

Pradesh held thus:

4. The application, no doubt, is filed under Section 45 of the Act, and it is not uncommon that such applications are filed in the suits for recovery of money on the strength of promissory notes. However, the prayer in the I.A. is some-what peculiar. Even while not disputing his signature on the promissory note, the petitioner wanted the age thereof to be determined. Several complications arise in this regard. The mere determination of the age, even if there exists any facility for that purpose; cannot, by itself, determine the age of the signature. In a given case, the ink, or for that matter, the pen, may have been manufactured several years ago, before it was used, to put a signature. If there was a gap

AIR 1964 SC 529

AIR 2014 AP 37

of 10 years between the date of manufacture of ink or pen, and the date on which, the signature was put or document was written, the document cannot be said to have been executed or signed on the date of manufacture of ink or pen. It is only in certain forensic cases, that such questions may become relevant. The trial Court has taken correct view of the matter and dismissed the application.

15. In the case on hand, P.W.1 was examined and got

marked Exs.A-1 to A-24. Ex.A-4 is appointment letter dated

07.06.2006 issued by defendant college appointing the

plaintiff as junior lecturer. Ex.A-5 is the Xerox copy of

appointment by the correspondent. The principal of the

college was examined as P.W.2. P.W.2 in his chief

examination stated that he was appointed as principal of

defendant-college for the academic year 2005-06 and he

worked till September, 2013. He also stated that the

correspondent of the college appointed the plaintiff as junior

lecturer on 07.06.2006 and accordingly, proceedings were

issued from the college and the plaintiff joined on 07.06.2006

under Ex.A-4. He informed the joining of plaintiff to the

defendant under Ex.A-5. Thus, P.W.2 asserted that Exs.A-4

and A-5 were issued by him during his tenure as principal of

the college. Of course, plaintiff also marked Exs.A-6 to A-12,

wherein he was deputed to spot valuation and the attendance

registers were also marked.

16. Defendant pleaded that Exs.A-4 and A-5 are ante-dated

and in fact, the author Shanmukha Rao is not the principal

of the college at that point of time. When the author of Exs.A-

4 and A-5 confirms its genuineness, sending the documents

for determination of age of ink will not serve any purpose.

Even in the case of G.V.Rami Reddy Vs. D.Mohan Raju3,

while considering the judgment in Kambala Nageswara

Rao's case, learned single Judge of this Court observed thus

"10. Therefore, in a given case, though the ink or a pen was manufactured in yester years, there is a possibility that a person may either deliberately or un-knowingly use such ink/pen to make a writing or signature several years after its manufacture. In such an event, mere determination of the age of ink/writing by an expert will not clinch the issue as to when exactly the maker has written/signed the document. Therefore, the Courts must take note of this aspect while appreciating the rival contentions."

However in the facts and circumstances of that case,

the application was allowed and directed Ex.A-1 promissory

note to refer for determination of age of signatures.

C.R.P.No.6157 of 2018 dated 13.02.2019

17. In the case on hand, as discussed supra, P.W.1 not

only filed Exs.A-4 and A-5, but also filed other relevant

documents as attendance certificate etc. The person who

issued Exs.A-4 and A-5 confirmed its genuineness. In these

facts and circumstances, request to refer Exs.A-4 and A-5 to

the expert for determination of age of ink is only to

procrastinate the proceedings and no purpose will be served.

Hence, in the considered opinion of this Court, the order of