A P Kumari, Krishna Dist Anr vs B Kesava Rao, Krishna Dist
2023 Latest Caselaw 4964 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

        CIVIL REVISION PETITION No.686 of 2016

ORDER :

This Civil Revision Petition is filed by the petitioner

against the Order, dated 23.11.2015 passed in I.A.No.746 of

2015 in O.S No.789 of 2014 on the file of the III Additional

Senior Civil Judge, Vijayawada (for short "the trial Court").

2. Heard Sri P. Rajasekhar, learned counsel

appearing for the petitioner and Sri V. Sivaprasad Reddy,

learned counsel appearing for the respondent.

3. The present impugned I.A.No.746 of 2015 in O.S

No.789 of 2014 was filed by the petitioner under Section 45

of Indian Evidence Act seeking to send Ex.A1 to the

technical expert for comparison along with the admitted

signatures of the petitioner.

4. Originally the respondent/plaintiff has filed the

suit against the petitioners/defendants for recovery of

Rs.5,00,000/- with interest. After receiving summons, the

1st petitioner came to know that the respondent has falsely

impleaded her as a party in the suit. Herself and her

husband never borrowed any amount from the respondent

on 24.4.2012 and she did not sign on the said document

along with her husband and did not borrow any amount

from the respondent. It is her burden to disprove the

allegations made by the respondent. She has strong proof

to show that signature on Ex.A1 is a fabricated one, as

such, it is necessary to send Ex.A1 to the technical expert

for comparison along with the admitted signatures of the

petitioners. Hence, the petitioners filed the present I.A

before the trial Court. But the trial Court has dismissed the

said I.A. on the ground that there is no clarity as to whether

so called admitted signatures are of contemporaneous

period or not and that the petition filed by the petitioners is

bereft of all the merits. Challenging the same, the present

civil revision petition has been filed.

5. This Court, vide order, dated 03.06.2016, has

granted interim stay as prayed for.

6. During hearing, learned counsel for the petitioner

while reiterating the contents made in the affidavit, submits

that, the trial Court ought to have seen that, it is a specific

contention of the petitioners in their written statement that

the signature of the 2nd petitioner on the suit promissory

note is forged and fabricated. Since the respondent/plaintiff

discharged the initial burden by examining PWs.1 & 2, it is

the petitioners to prove their plea of forgery, and hence the

petitioners filed the present I.A. He further submits that, a

reading of the impugned order indicates that the trial Court

prima facie satisfied that the expert opinion is required but

committee an error in dismissing the application on flimsy

grounds. He further submits that the trial Court also

committed an error in noticing that although in Criminal

court in C.C No.167 of 2015 allowed the application of the

petitioners to send the suit pronote for expert opinion but

the said order was not worked out because the original suit

pronote is filed in the instant suit and the same was not

sent for to that court. Until the suit promissory note is send

to the criminal court for implement its order, the order of

the criminal court cannot be worked out, and further the

proceedings of criminal court are not binding on the civil

court. Hence the trial Court committed senior error in

dismissing the application of petitioners on presumptions

and assumptions. Therefore, learned counsel requests this

Court to set aside the impugned order and pass appropriate

orders.

7. Per contra, learned counsel for the respondent

submits that only to prolong the proceedings the petitioners

have filed the petition after petitions. He further submits

that this respondent got issued a legal notice and the

petitioners after receiving the said notice, kept quiet and the

present impugned application has been filed with unclean

hands suppressing the real facts. The alleged documents

are created for the purpose of the suit and they are not

relevant and they are recent documents and that too after

filing of written statement these were created. He further

submits that the petitioners already filed a petition before II

Additional Special Magistrate in C.C No.167 of2015 for

sending the document to expert and the same is not

disclosed by the petitioners in the petition. Without

mentioning the said fact, the impugned application has been

filed by the petitioners to drag on the proceedings. To

support his contentions, learned counsel for the respondent

has relied upon a judgment of this Court reported in Byalla

Devadas versus Sivapuram Rama Yogeswara Rao1,

wherein this Court held that :

"......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...."

8. On a perusal of the material available on record, it

is observed that the respondent filed suit against the

petitioners for recovery of amount basing on a promissory

note. When the suit came up for petitioners' side evidence

they filed the impugned application along with other

application to receive documents. The contention of the

petitioners is that the 1st petitioner has taken a plea in the

written statement that she never executed promissory note

in favour of the respondent and the said promissory note is

a fabricated one. To prove the said fact the same has to be

sent to the expert. Further, the contention of the

respondent is that already one court has allowed petition

filed by the petitioners, there is no need to send the

document once again for comparison.

2022 SCC OnLine AP 2153

9. The rule of prudence requires the Court to send the

admitted and contemporary signatures of the person to

expert for comparison and the Court has to take into

consideration the tendency of human being in getting over

the situation adverse to be in such circumstances the

possibility of changing pattern, style of the signatures by the

defendant while putting his signature in open Court to

distinguish his usual signature cannot be ruled out

completely. When the signatures of the defendant on bank

passbook, passport, sale deed were not sent to expert for

comparison, the opinion of the expert cannot be taken into

consideration and that too opinion of expert cannot over

weigh the direct evidence, if the direct evidence available on

record is cogent. So, unless contemporaneous signatures

are available and send to expert, there is no possibility for

expert to compare the signatures.

10. As seen from the impugned order, it is observed

that there is no clarity as to whether so called admitted

signatures are of contemporaneous period or not. The

petitioner except vaguely saying about sending the

documents has not clearly stated about them. Further, it is

observed that already the application filed by the petitioners

for the same relief has been allowed once but again and

again they are filing the applications for the same relief only

to drag on the proceedings, which is not at all proper and

tenable, therefore, this Court found no illegality or perversity

in the order passed by the trial Court warrants no

interference.

11. Finding no merit in the instant civil revision

petition and as devoid of merits, the same is liable to be

dismissed.

12. Accordingly the Civil Revision Petition is

dismissed. No order as to costs.

13. It is made clear that the interim order granted on

03.06.2016 by this Court in this matter is hereby vacated.

14. As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 13 -10-2023 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

CIVIL REVISION PETITION No.686 of 2016

Date : 13.10.2023

Gvl