Between vs Shaik Anwar Hussain 2020 (3) Ald 288 ...
2024 Latest Caselaw 8492 AP

Citation : 2024 Latest Caselaw 8492 AP
Judgement Date : 17 September, 2024

Andhra Pradesh High Court - Amravati

Between vs Shaik Anwar Hussain 2020 (3) Ald 288 ... on 17 September, 2024

APHC010633192022
                          IN THE HIGH COURT OF ANDHRA PRADESH
                                        AT AMARAVATI             [3311]
                                 (Special Original Jurisdiction)

              TUESDAY,THE SEVENTEENTH DAY OF SEPTEMBER
                   TWO THOUSAND AND TWENTY FOUR
                                     PRESENT
               THE HONOURABLE MS JUSTICE B S BHANUMATHI
                    CIVIL REVISION PETITION NO: 2389/2022
Between:
Karri Bhujanga Reddy                                              ...PETITIONER
                                        AND
Kovvuri Lakshmi                                                 ...RESPONDENT
Counsel for the Petitioner:
     1. P Rajesh Babu
Counsel for the Respondent:
     1.
The Court made the following:
ORDER:

This revision petition is filed under Article 227 of the Constitution of India against the order dated 01.11.2022 dismissing I.A.No.169 of 2021 in A.S.No.187 of 2019 on the file of the Court of VIII Additional District and Sessions Judge, East Godavari at Rajamahendravaram filed under Order XXVI Rule 10A CPC and Section 45 of the Evidence Act to send the disputed document of promissory note marked as Ex.A1 to a government expert for giving opinion about the digit "1" before 1.6.2014 appearing on the promissory note as to whether it is interpolated subsequent to date 1.6.2014.

2. The petitioner is the appellant and the defendant. The respondent filed the suit for recovery of the money basing on the promissory note. The defendant resisted the suit, alleging that digit "1" was interpolated before the

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date "1" to make it as "11" to save limitation. The petitioner contends that to prove the same, it is necessary to seek the opinion of an expert. Hence this revision petition is filed.

3. The petition was resisted by the respondent/plaintiff by filing the counter and further stating that the petition was intended to drag on the proceedings.

4. After hearing both sides, the appellate Court dismissed the petition, holding that both parties were aware of the pleadings and the issues before the trial Court, and the judgment was passed by the trial Court basing on the evidence and pleadings, but the petitioner, having an opportunity to seek the said relief, failed to take such an opportunity and was not diligent before the trial Court, and that the petitioner cannot seek the relief as a matter of right. The appellate Court held that the decision of this High Court rendered in Shaik Hussain Basha Vs Shaik Anwar Hussain 2020 (3) ALD 288 (AP)is not applicable to the present case.

5. Aggrieved by the order this revision petition is filed.

6. The learned counsel for the petitioner submitted that since there is an issue already framed about the materialalteration of the promissory note, it is the duty of the defendant to establish the defence taken by leading necessary evidence, but an opinion of an expert was not sought before the trial Court for want of due advice,and the petitioner cannot be denied the relief just because the petition is filed before the appellate Court. He further submitted that in case this Court is of the opinion that the proceedings would drag on, the appellate Court may be directed to expeditiously dispose of the appeal, but the opinion of an expert is required.

7. Inspite of service of notice on the respondent, no appearance has been made so far.

8. There is no doubt that remedy of this type can be sought even in appeal. May be due to lack of advice, the petitioner might not have sought the

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relief. After perusing a copy of the suit pronote, this Court is of the view that merely because, the petition was not filed before the trial Court, it should not result in injustice to the petitioner to get the opinion of an expert, as it would help not only the party to litigation but also the court to arrive at a proper decision and decide the matter on merits, rather than on assumption and presumption. Irrespective of the lapse on the part of the petitioner in seeking the relief at the earliest possible time, for whatever reason, to compensate the respondent for the inconvenience caused thereby, somereasonable terms can be passed, while allowing the petition.

9. In the result, the revision petition is allowed by setting aside the order, dated 01.11.2022, I.A.No.169 of 2021 in A.S.No.187 of 2019 on the file of the Court of VIII Additional District and Sessions Judge, East Godavari at Rajamahendravaram, and the petition therein is allowedon the condition that the petitioner shall pay the respondent Rs.5000/- within 10 days from the date of receipt of the copy of this order, failing which the petition stands dismissed without further orders.

10. The appellate Court shall send the document to the expert with a request to expeditiously give the report of the opinion, indicating that the case is an old matter, and upon receipt of the same, the appeal may bedisposed of without any further delay. Both parties shall cooperate with the Court in this regard.

Miscellaneous petitions, if any, pending shall stand closed, and interlocutory orders, if any, pending shall stand vacated.

__________________ B.S. BHANUMATHI, J Date:17.09.2024 Note: