THE HONOURABLE JUSTICE G. SRI DEVI
CIVIL REVISION PETITION No.670 of 2020
ORDER:
The present Civil Revision Petition is filed, under Article 227
of the Constitution of India, against the order, dated 18.02.2020
made in I.A.No.157 of 2020 in O.S.No.52 of 2013, whereunder the
learned I-Additional District Judge, Khammam, dismissed the
application filed by the petitioner/plaintiff, under Section 45 of the
Indian Evidence Act, for sending Ex.B1 certified copy of the
registered sale deed, dated 10.05.2011, and Ex.B1-Will Deed dated
10.02.1996, to any Handwriting Expert for comparison of signatures
of one A.Nageswar Rao and opinion by condoning the delay if any.
The facts, in issue, are as under:
The petitioner/plaintiff filed the above suit against the
respondents/defendants for partition and separate possession of
the suit schedule properties. When the said suit was posted for
arguments, the petitioner/plaintiff filed I.A.No.157 of 2020 for
sending the aforesaid documents to Handwriting Expert for
comparison of signatures of one A.Nageswar Rao, who is the
attester of Ex.B1-Will Deed. It is stated in the affidavit filed in
support of the petition that in the above suit, the petitioner/plaintiff
got examined P.W.4, who is well acquainted with A.Nageswara
Rao, who is no more, and as such, the petitioner/plaintiff filed 2
certified copy of registered sale deed No.1853/2011, dated
10.05.2011, which contains the admitted signature of A.Nageswara
Rao. It is also stated that the signature of A.Nageswara Rao in the
certified copy of registered sale deed and the Will Deed, which was
marked as Ex.B1 is different and whether both the signatures are
signed by one person or not can be proved through an handwriting
expert only. It is further stated that the plea of the
petitioner/plaintiff is that Ex.B1-Will Deed is fabricated and false,
as such, it is just and necessary to send the said documents to
handwriting expert to meet the ends of justice and to prove her
case. It is also stated that if the petition is not allowed, she will
suffer irreparable loss and injury which cannot be compensated
under any circumstances apart from miscarriage of justice.
Respondents/defendants filed counter contending that the
said petition filed for comparison of signature of one A.Nageswara
Rao, who is one of the witnesses on Ex.B1-Will Deed, dated
10.02.1996, with that of his signature on certified copy of the
registered sale deed No.1853/2011, dated 10.05.2011 by an expert is
not tenable and without any justification. It is also contended that
pertinently signature of said A.Nageswara Rao, appearing on
certified copy of the registered sale deed No.1853/2011 is a Xerox
copy, which cannot be compared and more so, the signature of
A.Nageswara Rao on the registered sale deed No.1853/2011 is not 3
contemporaneous with his signature on Ex.B1-Will Deed,
pertaining to the year 1996 and prayed to dismiss the said petition.
After considering the material available on record and the
aforesaid rival submissions, the trial Court dismissed the said
application. Challenging the same, the present Civil Revision
Petition is filed by the petitioner/plaintiff.
Heard learned Counsel for the petitioner/plaintiff, learned
Counsel for the respondents/defendants and perused the record.
Learned Counsel for the petitioner/plaintiff would submit
that the learned trial Judge dismissed I.A.No.157 of 2020 on the
ground that registered sale deed is not contemporaneous document
with that of Ex.B1-Will Deed, which is of the year 1996 and as such
it cannot be compared and further certified copy cannot be
compared as contemporaneous signature. It is also submitted that
the learned trial Judge failed to see that the certified copy can be
compared as contemporaneous signature with the disputed
signature. It is further submitted that in Bhavanam Siva Reddy and
others v. Bhavanam Hanumantha Reddy and another1 it was held
that "what a person thinks in respect of the existence or non-
existence of fact is an opinion. As a general rule the opinion or
belief of third person is not relevant and admissible as the witnesses
are allowed to state facts alone of what themselves saw or heard.
1 (2017) 4 ALT 682 4
But, an expert is the person, who specifically or specially skilled or
practiced on any subject". In Koya Lalitha Kumari and others v.
Polina Nageswara Rao (died) per L.Rs.2 it was held that "Expert
shall furnish to the Court necessary scientific criteria for testing the
accuracy of his conclusions to enable the Court to form its own
independent judgment by application of such criteria to the facts
proved in the case". In Poluru Sreenivasulu v. Gajulu Sravan
Kumar3 it was held that "there is no time limit to file application in
seeking to send the document containing a disputed signature or
writing etc., to expert." In Janachaitanya Housing Limited v.
Divya Financiers4 it was held that "an application can be filed even
at the stage of arguments, if circumstances of case so demand.
Discretion of Court to deal with such applications cannot be
controlled by hard and fast rules." In Sakriya Krishna Bai (died)
per L.R.s v. Syed Ismal (died) per L.R.s5 it was held that "Courts to
take assistance of experts and Section 73 of the Evidence Act does
bar the Judge from ultimately deciding whether the signatures are
forged or not still as a rule of prudence in disputed cases, it is
always desirable that a Court should secure the opinion of quality
handwriting expert on the subject after the opinion of the expert, is
introduced into the evidence as required by law and the Court can
come to a conclusion". In P.Kusuma Kumari v. State of A.P.6 it
2 (2016) 1 ALT 42 3 (2017) 2 ALT 414 4 (2008) 3 ALT 409 (D.B.) 5 (2018) 1 ALT 772 6 (2016) 2 ALT (CRI) (AP) 476 5
was held that "though the Court got power under section 73 of
Evidence Act and there is even other remedies to prove, the Court
generally being not an expert in comparison of signature and
handwritings etc., with scientific expertise; take an experts opinion
with reasons under Section 45 of the Evidence Act read with Section
151 of C.P.C." In Matta Sriramamurthy v. Arepalli Srirama
Murthy7 it was held that "Before exercising powers under Section
73 of the Evidence Act to form an opinion by comparing the
handwriting or signature of a party, it would always be proper for
the Court to take the assistance of handwriting expert is to be in a
better position to form an appropriate opinion."
Learned Counsel for the respondents/defendants would
submit that the signature of said A.Nageswar Rao on the registered
sale deed of the year 2011 is not contemporaneous with his
signature on Ex.B1-Will Deed pertaining to the year 1996 and as
such it cannot be compared and further certified copy of the
registered sale deed cannot be compared as contemporaneous
signature. He further submits that though the subject suit was filed
in the year 2013, the present application was filed by the plaintiff in
the year 2020 only to protract the proceedings. He further submits
that the trial Judge had assigned cogent reasons, while dismissing
the petition and there is nothing on record to take a different view
and prayed to dismiss the Civil Revision Petition.
7 (2015) 3 ALT 266 6
In view of the above submissions, the point that arises for
consideration is "whether the certified copy of sale deed bearing
No.1853 of 2011 be sent to the handwriting expert along with Ex.B1-
Will Deed, for comparison of signature of A.Nageswar Rao or not?.
The party, who seeks the assistance of experts opinion
evidence, should demonstrate, at the earliest opportune point of the
proceedings, as to how a reasonable doubt in forming an opinion or
in drawing a reasonable conclusion about the genuineness of the
questioned document is persisting and as to how the experts
opinion would help the Court to arrive at a just conclusion.
Otherwise, recourse to Section 45 of the Indian Evidence Act would
become a useless tool in the hands of a litigant to protract the
proceedings unproductively for a long period. Any such attempt
would, far from promoting the cause of justice, defeat it.
In the instant case, not a single cogent reason has been spelt
out by the petitioner/plaintiff in the affidavit filed in support of the
petition as to why she has not taken any steps for sending the
documents in question to the handwriting expert for comparison of
signatures of one A.Nageswar Rao at the earliest point of time. As
seen from the record, it is evident that the suit was coming up for
arguments from 02.04.2019 and after conclusion of the arguments,
the suit was reserved for judgment on 12.07.2019. Thereafter, the
suit was got reopened by the petitioner/plaintiff for further 7
evidence on 19.09.2019 and the petitioner/plaintiff got recorded the
evidence of P.Ws.3 to 5 and after lapse of five months, the
petitioner/plaintiff again filed the present application only to
protract the litigation for a long period. Moreover, as rightly
pointed out by the learned Counsel for the respondents, the
certified copy of the registered sale deed is of the year 2011 and the
Will deed (Ex.B1) is pertaining to the year 1996, which is not a
contemporaneous document. Therefore, the present application
cannot be entertained when the suit was coming up for arguments.
The genuinity or otherwise of Ex.B-1 will be taken into
consideration by the trial Court while appreciating the evidence on
record. Hence, this Court does not find any ground to interfere with
the order of the trial Court which has given cogent reasons for
refusing to send the documents to an expert. I find no merit in this
revision.
Accordingly, the Civil Revision Petition is dismissed. There
shall be no order as to costs.
As a sequel thereto, Miscellaneous Petitions pending if any,
shall stand closed.
_____________________ JUSTICE G. SRI DEVI
28.01.2021 Gsn/gkv
