M Kameswari Kumari vs Shaik Shaheeda Begum
2022 Latest Caselaw 981 AP

                 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

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

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.

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

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

C.R.P.No.2035 of 2019

PNV DATED: 23-0-2022