Kurava Nusala Nagamma vs Mutyalapati Mahaboob Basha
2022 Latest Caselaw 858 AP

                 THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                            C.R.P.No.1644 of 2019
                               (Through physical mode)
ORDER:

This revision petition is preferred against the orders dated 20.12.2018 in

I.A.No.304 of 2018 in A.S.No.30 of 2016 on the file of V Additional District

Judge, Kurnool at Allagadda.

2. The suit O.S.No.43 of 2014 is filed for recovery of money basing on a

promissory note purported to have been executed by defendants 1 and 2. The

suit was decreed against both the defendants vide decree and judgment dated

19.07.2016.

3. Having been aggrieved by the judgment dated 19.07.2016, the

defendants preferred appeal in A.S.No.30 of 2016 on the file of V Additional

District Judge, Kurnool at Allagadda.

4. During the pendency of the appeal, I.A.No.304 of 2018 was filed by

the second appellant/second defendant to send the suit promissory note dated

20.04.2013 marked as Ex.A.1 on behalf of the plaintiff to the Government

Forensic Lab at Hyderabad for comparison of the signature thereon with the

signature of the petitioner and to give the opinion of the expert on the same.

5. The first respondent/plaintiff filed the counter opposing the

application.

6. After hearing, the first Appellate Court dismissed the petition vide

order dated 20.12.2018.

7. The contention of the revision petitioner is that she never borrowed

any amount did she execute any promissory note under Ex.A.1 and that the

same was created and forged regarding which pleadings were already taken in

the written statement and therefore, it is necessary to send Ex.A.1 to the

expert for comparison of the signatures.

8. In the counter filed by the first respondent/plaintiff, it is contended

that the plaintiff clearly established the suit promissory note i.e. Ex.A.1 before

the Trial Court and accordingly the suit was decreed and now the

petitioner/defendant is not entitled to the relief sought and to fill up the

lacuna at this juncture, since lower Court had given ample opportunity to the

petitioner to prove her case, but she failed to avail the opportunity.

9. The first Appellate Court observed that the petitioner did not give

any reason as to why steps could not be taken before the Trial Court for

sending the suit promissory note Ex.A.1 to be examined by an expert and

further could not satisfy the Court below that inspite of exercising due

diligence, the petitioner could not take steps before the Trial Court or that the

Trial Court has refused to permit the petitioner to seek such relief. It is

further observed that the petitioner did not mention any cause, muchless a

substantial cause, to seek indulgence in permitting her to send the document

for an opinion by an expert at that stage. It is also observed that the suit

document is of the year 2013 and the petitioner seeks comparison of the

signatures to be obtained in open Court by the Appellate Court and therefore

there are no signatures of the contemporaneous period i.e. 2013 or prior to it

for the purpose of comparison. For all these reasons, the petition was

dismissed by the Court below.

10. Therefore, the revision petitioner contended that the Appellate

Court can also exercise power to seek the opinion of an expert to decide the

case on merits since the pleadings in the Trial Court were not considered and

there is no bar to seek such remedy at the appellate stage. It is further

contended by the revision petitioner that there is no willful or negligent

mistake on the part of the petitioner during the course of the trial and it is only

depending on the instructions of the counsel, the petitioner acted and as such

she cannot be put to loss. It is also contended that burden lies on the plaintiff

to prove the signatures, since the plaintiff has not taken steps to prove the

same by seeking opinion of the expert, now the petitioner took these steps. It

is further contended that the lower Appellate Court took contradictory finding

that seeking of an opinion of handwriting expert under Order 41 Rule 27 CPC

and further on one hand the Court rejected the relief and observed that there

are no contemporaneous signatures. In this regard, the petitioner contended

that she is ready to produce such signatures, if permitted.

11. The point for consideration is whether the impugned order suffers

from any irregularity or illegality.

12. No doubt, appeal is continuation of a suit. However, both stages

cannot be equated in all respects. The learned counsel for the revision

petitioner submitted that seeking opinion of an expert cannot be treated as

additional evidence under Order 41, Rule 27 CPC. Though such opinion is

relevant under Section 45 of the Evidence Act, if at all such opinion is to be

considered by the Court, it is a part of the evidence when the expert is

examined on the opinion given. As such, the provisions of Order 41, Rule 27

CPC cannot be brushed aside while considering the request of the petitioner at

the stage of the appeal. Unlike before the Trial Court, evidence is not

permitted automatically, as Order 41, Rule 27 CPC specifically deals with such

an occasion. For the better appreciation, the relevant provision is mentioned

here below.

Order 41, 27. Production of Additional Evidence in Appellate Court.

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-

(a) the Court from whose decree the appeal is preferred has

refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

13. Therefore, it is clear that the petitioner has to satisfy the above

conditions. Clearly it is not the contention of the petitioner that her case falls

under Clause (a). No doubt, the Appellate Court may allow evidence if it

requires it to enable it to pronounce judgment or for any other substantial

cause. Here, in the present case, since there is already oral and documentary

evidence on record, the Appellate Court did not feel that it requires further

opinion of an expert to enable it to pronounce judgment. There is also no

other substantial cause shown or found to insist the Appellate Court to invoke

jurisdictional authority under Clause (b). The only scope left for the petitioner

is to fit her case within Clause (aa). Merely because the case of the petitioner

can be established by seeking opinion of an expert, she need not be permitted

at this juncture as she had ample opportunity during the period of trial.

Absolutely, there is no reason putforth by the petitioner in the petition as to

why such plea could not be taken before the Trial Court, except a vague

statement made in the grounds of revision petition that she acted as per the

advice of the counsel. Further, now stating that she can produce signatures

contemporaneous to the period of Ex.A.1 no such statement was made in the

petition about the availability of such material. Therefore, in addition to the

reason already stated for not allowing the petitioner, at this juncture to seek

opinion of an expert, absence of any of her signature contemporaneous to the

period of Ex.A.1 is yet another reason for rightly declining the relief claimed.

Inspite of the observation of the lower Court regarding the contemporaneous

signature, except stating in the grounds of revision, no disclosure is made by

the revision petitioner specifically what kind of document is available with her

signature which is contemporaneous in period of time to Ex.A.1. Therefore,

even if fresh signatures are taken long time after Ex.A.1, the purpose may not

serve.

14. For all these reasons, there is no merit in the revision and no

irregularity or illegality in the impugned order.

15. Accordingly the revision petition is liable to be dismissed.

16. In the result, the revision petition is dismissed.

There shall be no order as to costs. Pending miscellaneous petitions, if

any, shall stand closed.

_________________ B.S.BHANUMATHI, J

16th day of February, 2022

PNV