Andhra Pradesh High Court - Amravati
Byalla Devadas, vs Sivapuram Rama Yogeswara Rao on 16 March, 2022
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CIVIL REVISION PETITION No.67 of 2022
ORDER:
The instant Civil Revision Petition has been preferred against the
order dated 15.11.2021 passed in I.A.No.234 of 2020 in O.S.No.39 of
2019 on the file of the Principal Junior Civil Judge, Giddalur, Prakasam
District.
2. Heard Mr.Nagaraju Naguru, learned counsel for the petitioner and
Mr.Turaga Sai Surya, learned counsel appearing for the respondent.
3. The petitioner herein is defendant in the above referred suit.
The respondent/plaintiff filed the said suit for recovery of a sum of
Rs.1,71,600/- with future interest and costs. The petitioner/defendant filed
written statement, inter alia, contending that the suit promissory note is
forged document and his signatures were forged. After examination of
P.Ws 1 and 2 on behalf of the respondent/plaintiff, the matter was posted
for defendant‟s evidence on 25.07.2019. At that stage, the petitioner filed
I.A.No.234 of 2020 under Section 45 of the Indian Evidence Act, 1872 to
send Ex.A.1 promissory note to the handwriting expert by receiving
specimen writings in the four promissory notes which are annexed to the
said application and to receive his specimen signatures in the open Court
along with the vakalatnama and written statement for comparison. The
respondent/plaintiff filed counter and opposed the said application. After
considering the matter, the learned Trial Court dismissed the said
application. Hence, the present Civil Revision Petition.
4. The learned counsel for the petitioner assailed the order under
revision contending, inter alia, that the view taken by the learned Trial
Court that the application is filed only to drag on the proceedings is
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un-sustainable. He submits that the matter was posted for defendant‟s
evidence on 25.07.2019 and the application under Section 45 of the
Indian Evidence Act was filed on 06.01.2020 and therefore the Trial Court
is not correct in coming to a conclusion that the I.A is filed only to drag on
the proceedings. He also submits that the view of the learned Trial Court
that the petitioner/defendant ought to have taken steps before
commencement of Trial or prior thereto is untenable and contrary to the
well settled principles of Law. While submitting that the
petitioner/defendant has taken a specific stand in the written statement
that the suit promissory note is forged, the learned counsel further
contends that the application under Section 45 of the Indian Evidence Act
can be made at any stage. The learned counsel placing reliance on the
judgment of a learned Judge in Gulam Ghouse and Ors., v. Madarse
Jeelania Shama-Ul-Uloom1 submits that in view of the plea taken in
the written statement, the learned Trial Court ought to have sent the suit
promissory note for the opinion of expert as it would assist the Court in
effective adjudication of the „lis‟. Contending so, the learned counsel seeks
to set aside the order passed by the learned Trial Court.
5. Per contra, the learned counsel for the respondent supported the
order under revision inter alia stating that the conduct of the
petitioner/defendant disentitles him for securing the relief sought for. He
contends that though the petitioner/defendant has taken a plea of forgery,
he has not chosen to file any application seeking opinion of the expert
with reference to suit promissory note at the earliest point of time. He
submits that after closure of the evidence of P.W.2-the attestor of suit
promissory note, who deposed that the petitioner/defendant himself
1 2007 (4) ALT 432
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scribed the suit promissory note, the I.A in question was filed at a belated
stage to get over the same. While submitting that there are no bonafides
in the application made by the petitioner/defendant, the learned counsel
submits that the order under revision is well considered and warrants no
interference by this Court. The counsel also places reliance on the orders
passed by a learned Judge in Dara Srinivasa Rao v. Nallamilli
Venkata Reddy2 and submits that the revision petition is liable to be
dismissed.
6. On consideration of the rival submissions and perusal of the record,
the point that falls for adjudication by this Court is as to whether the order
of the Trial Court warrants interference and the application for referring
the documents for expert opinion as sought for deserves to be allowed, in
the facts and circumstances of the case?
7. A perusal of the order under revision would disclose that the
application filed by the petitioner/defendant was negatived primarily on
the ground that he has not taken steps seeking to refer the suit
promissory note (Ex.A.1) for expert opinion before commencement of Trial
or prior thereto, but, after closure of the evidence on the plaintiff‟s side
and as such the application is liable to be dismissed. The said view of the
learned Trial Court is not tenable in the light of the judgment of the
Hon‟ble Full Bench Bande Siva Shankara Srinivasa Prasad @ Ravi
Surya Prakash Babu3. The Hon‟ble Full Bench in the said judgment,
while answering the reference, inter alia, held as follows:-
"No time limit could be fixed for filing applications under Section 45 of the
Indian Evidence Act for sending the disputed signature or writings to the handwriting
expert for comparison and opinion and same shall be left open to the discretion of the
Court; for exercising such discretion when exigencies so demand, depending upon the
facts and circumstances of each case".
2 2017 (1) ALT 710
3 2016 (2) ALT 248
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8. In Gulam Ghouse‟s case (referred (1) supra), which relates to suit
for recovery of amount on the foot of a pronote, defence was taken that it
is forged. While interfering with the order rejecting the application to send
the documents to the expert for opinion, the learned Judge opined that
where a crucial issue regarding the maintainability of suit is involved on
the basis of documents allegedly forged and fabricated, the Lower Court
ought to have exercised its discretion judiciously and come to a conclusion
that the opinion of expert would help the Court to give a quietus to the
plea taken by the defendants. In the said case, the defendants therein
filed an application to send the documents covered by Exs.A.6, A.8 and
A.9 to the handwriting expert for comparison with the admitted signatures
of the 1st defendant on Exs.A.1 to A.5 and other documents to give an
opinion. Though it is also a case where stand is taken that the suit
promissory note is forged, the said judgment is not applicable to the facts
of the present case, wherein the documents sought to be sent for expert‟s
opinion are signatures on the vakalat and written statement for
comparison with Ex.A.1 promissory note.
9. At this juncture, it is appropriate to refer to the orders passed by a
learned Judge in P.Padmanabhaiah v. G.Srinivasa Rao4 the case of
Dara Srinivasa Rao‟s case (referred (2) supra). In P.Padmanabhaiah‟s
case (referred (4) supra), the defendant in O.S.No.324 of 2010 on the file
of Court of the Additional Senior Civil Judge, Kurnool filed an application
under Section 45 of the Indian Evidence Act to send the vakalat and
written statement containing his signatures along with the promissory
note (Ex.A.1) for handwriting expert for comparison of his signatures on
the vakalat and written statement with the signatures said to be of him on
4 AIR 2016 AP 118 (FB)
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Ex.A.1 and furnish a report with opinion as to the genuineness or
otherwise of the disputed signatures on the said exhibits. The said
application was allowed. The learned Judge of this Court while interfering
with the orders of the Trial Court had extensively dealt with the matters
with reference to comparison of signatures on vakalat and written
statement with the disputed documents, inter alia, held as follows:-
"In the well considered view of this Court, the defendants signatures on the
Vakalat and the Written Statement cannot be considered as signatures of comparable and
assured standard as according to the plaintiff even by the date of the filing of the vakalat
the defendant is clear in his mind about his stand in regard to the denial of his signatures
on the suit promissory note and the endorsement thereon and as the contention of the
plaintiff that the defendant might have designedly disguised his signatures on the Vakalat
and the Written Statement cannot be ruled out prima facie. The view point being projected
by the plaintiff that if the defendant is called upon to furnish his signatures in open Court,
he might designedly disguise his signatures while making his signatures on papers in open
court is also having considerable force and merit. Unless the defendant makes available to
the Court below any documents, with his signatures, of authentic and reliable nature more
or less of a contemporaneous period, and unless such documents are in turn made available
to the expert along with the suit promissory note, the expert will not be in a position to
furnish an assured opinion, in the well considered view of this Court. .........There is no
point in sending to an expert the documents of doubtful nature and character and add one
more piece of unreliable evidence and burden the record by wasting the time and money of
the parties. When there are no signatures of comparable and assured standard on the
material record before the trial Court, it is unsafe to obtain the signatures of the defendant
in open Court and send the said signatures and also his vakalat and written statement to an
expert for obtaining his opinion after comparison of the signatures thereon with the
disputed signatures on the suit promissory note, as any such opinion obtained from a
handwriting expert on such material is not going to be of any help to the trial Court in
effectively adjudicating the lis more particularly in the light of the admitted legal position
that expert's opinion evidence as to handwriting or signatures can rarely, if ever, take the
place of substantive evidence."
10. In the light of the above well considered view of the learned Judge,
this Court is not inclined to interfere with the order passed by the learned
Trial Judge, though the reason assigned by it for dismissing the I.A in
question to the effect that no steps were taken before commencement of
Trial is not sustainable. In the light of the above conclusions, Civil Revision
Petition fails and the same is liable to be dismissed.
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11. Accordingly, the Civil Revision Petition is dismissed. No order as
to costs.
As a sequel, miscellaneous applications, if any, pending shall stand
disposed of.
__________________
NINALA JAYASURYA, J
Date: .03.2022
IS
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THE HON'BLE SRI JUSTICE NINALA JAYASURYA
Civil Revision Petition No.67 of 2022
Date: .03.2022
IS
