Telangana High Court

K. Sriramulu7 Tallari Sri Ramulu, vs M/S Sunder Steels Limited, on 17 June, 2022

Bench: G.Anupama Chakravarthy

          HON'BLE SMT. JUSTICE G. ANUPAMA
                  CHAKRAVARTHY

        CIVIL REVISION PETITION No.5773 of 2012

ORDER :

This revision petition is filed against the order dated

03.09.2012 in I.A.No.866 of 2012 in O.S.No.977 of 2006 on the

file of I Additional District Judge, Ranga Reddy District.

2. Petitioner in I.A.No.866 of 2012 is defendant No.6 in the

suit. The said petition is filed under Section 45 of the Indian

Evidence Act r/w. Section 151 CPC. Respondent Nos.7 and 16

are shown as proforma parties in the said I.A.

3. It is the contention of the revision petitioner/defendant No.6

that the suit was filed by plaintiffs 1 to 6 based on the forged sale

deeds, which is apparent even to the naked eye and there is every

necessity to send the impugned sale deeds to the handwriting

expert for opinion.

4. Heard both sides and perused the record.

GAC, J CRP.No.5773 of 2012

5. It is urged by the learned counsel for petitioner that initially

I.A.No.1987 of 2009 was filed for the same relief, but the trial

Court dismissed it on 31.08.2010 with a finding that it was not the

stage to move such application under Section 45 of the Indian

Evidence Act. It was further observed in I.A.No.1987 of 2009

that though the petitioner relied on the judgment reported in

2009(6) ALD 6, the application in the said judgment i.e.

I.A.No.1239 of 2009 was not moved under Section 45 of the

Evidence Act, but it was filed under Order 13 Rule 8 r/w. Section

151 CPC. It is further urged that the sale deeds in the present case

are coming up for marking as exhibits under 'A' series, for which,

he was constrained to file the present I.A. for sending them to the

handwriting expert at Government Forensic Lab, Hyderabad in

order to obtain opinion as to the genuineness of the signatures and

thumb impressions on those documents.

6. A detailed counter was filed before the trial Court

contending that the petition was hit by the principle of res judicata

as the similar application filed earlier was dismissed and the said

GAC, J CRP.No.5773 of 2012

orders of the trial Court have become final as no appeal or

revision was preferred against the said orders.

7. It is urged by the learned counsel for respondents that the

suit was filed for permanent injunction restraining the respondents

and their men and it is not a suit for declaration, so as to look into

the title. It is also the contention of the learned counsel for

respondents that title can be looked incidentally in a suit for

permanent injunction and it is for the plaintiff to establish his

case. It is also urged by the learned counsel for respondents that

Section 73 of the Indian Evidence Act gives ample power to the

Court to compare the signatures when an allegation is made by a

party that the sale deeds are forged.

8. The record discloses that the trial Court has given a finding

that the principles of res judicata does not arise in this case though

both the petitions are filed under Section 45 of the Indian

Evidence Act. But it is the finding of the trial Court that the

signatures cannot be compared by the Court under Section 73 of

the Indian Evidence Act as the Court is not technically trained or

qualified to make such comparison. In this connection, the trial

GAC, J CRP.No.5773 of 2012

Court has relied on the judicial precedent of this Court in the case

of Singamaneni Ramadevi v. Eruvuri Hanumayamma &

others1. In paras 5 and 6 of the said judgment, it is held as under :

"5. It is no doubt true that the petitioner made an effort to get the alleged thumb impression said to have been put in proof of receipt of the amount of Rs. 6,000/- examined by a Handwriting Expert by filing the applications in the trial Court as well as lower appellate Court and that they were dismissed on several grounds. The fact, however, remains that an exercise of that nature can be undertaken if only the petitioner can claim the relief of declaration of title.

6. In a suit for injunction, it is not at all permissible to delve into that question, much less to permit the evidence touching upon the proof of title to the property. The compliance with the conditions stipulated in the sale deed would certainly have bearing upon the proof of title. Though not on the grounds furnished by the lower appellate Court, this Court finds that the whole exercise undertaken by the petitioner is futile."

Thus, the trial Court came to a conclusion that it is most uncalled

for handwriting expert in respect of the disputed documents in a

suit for bare perpetual injunction and if at all, the plea of the

2011 (6) ALD 419

GAC, J CRP.No.5773 of 2012

defendant No.6/petitioner in the application is that forgery is

apparent even to the naked eye. If that being so, it is nothing but a

futile exercise on the part of the petitioner for sending the

documents to the handwriting expert for comparison and opinion.

With the above observations, the petition was dismissed.

9. Learned counsel for respondents has relied on the judgment

of Hon'ble Supreme Court in Satyadhyan Ghosal & others v.

Smt. Deorjin Debi & another2, wherein, their Lordships have

held as under :

"The principle of res judicata applies as between two stages in the same litigation to this extent that a Court whether the trial Court or a higher Court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter against at a subsequent stage of the same proceedings. Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation, consider the same matter again."

AIR 1960 SC 941

GAC, J CRP.No.5773 of 2012

In view of the above judgment, even res judicata applies if two

applications are being filed one at the earlier stage and another at

a later stage and when the earlier order was not challenged and

attained finality. Therefore, this judgment squarely applies to the

facts of the present case.

10. In another judgment relied on by the learned counsel for

respondents in J.L.Babu v. S. Gowri Shankar & another3, it is

held by this Court at paras 5 and 6 as under :

"5. .....Sending of a document under Section 45 of the Act, for opinion of an expert, is a step in the direction of proof. The exercise as regards proof of the document would only start with the commencement of trial. The C.P.C., as well as the Evidence Act enshrine the principles, that are relevant in this regard, touching upon the burden, the priority to be followed in the context of adducing evidence etc. When the burden squarely rests upon the petitioner to prove the documents relied upon by him, it could, not at all be the genuine concern of the respondents, to initiate steps for disproving it.

6. ....In contrast, during the course of evidence by the defendants, the concerned witness may admit the signature on a document, notwithstanding the denial of the

2009 (6) ALD 6

GAC, J CRP.No.5773 of 2012

same in the written statement. Therefore, the actual stand of the parties would emerge, only after the witnesses, who assert about the genuinity of the document, or those who signed it, depose before the Court. Taking of any steps under Section 45 of the Act, before that stage, is prone to lead to several complications."

As per the above judgment, the burden lies exclusively on the

plaintiff to prove that the documents relied upon by him are

genuine and it is not at all the concern of the respondents to

initiate steps for disproving it. This judgment also squarely

applies to the facts of the case on hand.

11. Even Section 101 of the Indian Evidence Act envisages that

whoever asserts a particular fact, it is for them to prove it. Since

the plaintiffs have filed the sale deeds (alleged forged sale deeds),

it is for them to prove that they are the rightful owners of the

property. Moreover, this is a suit for bare perpetual injunction

and it is for the plaintiffs to prove that they are in possession of

the suit schedule property and it is for the trial Court to decide on