Telangana High Court
Abdullah Bin Awaz vs Hussain Bin Awaz on 5 August, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CIVIL REVISION PETITION No.1990 OF 2024
ORDER:
Heard Mr. Vedula Srinivas, learned Senior Counsel
representing Ms. Vedula Chitralekha, learned counsel for petitioner
Nos.2 to 5 and Mr. Brahmadandi Ramesh, learned Senior Counsel
representing Mr. G.L. Narsimha Rao, learned counsel for the
respondent.
2. This revision is filed challenging the order dated 03.05.2024
passed by learned Principal District Judge, Karimnagar in I.A. No.578
of 2024 in O.S. No.171 of 2015 dismissing the petition filed by the
petitioners - defendants under Section - 45 of the Indian Evidence Act,
1872 (for short 'Evidence Act').
3. The petitioners herein are the defendants in O.S. No.171 of
2015, while the respondent is the plaintiff. The respondent herein -
plaintiff filed the said suit vide O.S. No.171 of 2015 against the
petitioners herein for declaration of title declaring him as owner,
possessor over the suit schedule property i.e., land measuring
Ac.0.15¼ guntas ( 1845 square yards) in Survey No.1031, situated at
Ramnagar Area, Karimnagar, and cancellation of document bearing
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No.187 of 2015, dated 16.01.2015 executed by defendant No.1 in
favour of defendant Nos.2 to 5 as null and void and not binding on the
plaintiff and for a consequential perpetual injunction restraining the
defendants from interfering with her possession over the suit schedule
property.
4. For the sake of convenience, the parties are hereinafter
referred to as they are arrayed in O.S. No.171 of 2015.
5. During pendency of the said suit, the defendants filed an
Interlocutory Application vide I.A. No.578 of 2024 in O.S. No.171 of
2015 under Section - 45 of the Indian Evidence Act, 1872 to send the
disputed signature Nos.1 and 2 on Ex.B7 - written statement in O.S.
No.741 of 1975 on the file of the District Munsiff at Karimnagar, to
hand-writing expert at Central Forensic Laboratory, Ramanthapur,
Hyderabad, for his opinion with comparison of admitted signatures
from Exs.B20 and B21 - written statement in O.S. No.202 of 1974 on
the file of the District Munsiff, Karimnagar and written statement in
O.S. No.203 of 1974 on the file of the very same Court, respectively,
contending as follows:
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i) The grandfather of defendant No.5, namely Awaz Bin
Musallam, filed a suit in O.S. No.219 of 1994 against the
plaintiff and one Ms. Shameemunisa Begum;
ii) In the said plaint, his grandfather took a categorical plea
that defendant No.2 i.e., Hussain Bin Awaz got managed
to file written statement on his behalf by forging his
signatures in O.S. No.741 of 1975. To prove the said
fact, the written statement in O.S. No.741 of 1975 got
marked as Ex.B7 may be sent to expert's opinion for
comparison of the signatures with that of admitted
signatures of defendant No.5's grandfather made in the
written statements filed in O.S. Nos.202 of 1974 and 203
of 1974.
6. The plaintiff filed counter opposing the said petition
contending as follows:
i) The defendants did not challenge the judgment and
decree in O.S. No.741 of 1975;
ii) The written statement filed in O.S. No.741 of 1975
cannot be questioned now, and the defendants plaintiff
has no locus standi to dispute the same;
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iii) The trial Court cannot come to a conclusion regarding
genuineness of signatures on written statement or in his
pleadings, nor did defendant No.5 depose in his evidence
anything about the proceedings in O.S. No.202 of 1974
and 203 of 1974.
7. Vide order dated 03.05.2024 learned trial Court dismissed the
aforesaid I.A. No.578 of 2024 observing thus:
i) By filing the petition, the defendants are seeking to
examine the signatures of Awaz Bin Mussallam on
written statement filed by him on 14.11.1975 in O.S.
No.741 of 1975, which signature they are disputing with
that of Awaz Bin Mussallam's other two purported
signatures made on 04.09.1974 in two written statements
in O.S. No.202 of 1974 and 203 of 1974;
ii) If the purported signature is disputed by one party and is
affirmed as correct by another party, such disputed
signature can be compared only with admitted specimen
signatures;
iii) According to the defendants, the specimen signatures
were made by Awaz Bin Mussallam in written statements
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in O.S. Nos.202 of 1974 and 203 of 1974 filed in the year
1974 itself. However, there is no record to show that the
said signatures were admitted signatures of Awaz Bin
Mussallam;
iv) Both the disputed and admitted signatures were all made
on written statements purportedly filed by Awaz Bin
Mussallam in three different suits in and around 1974-75.
v) Both sets of signatures are all available on photocopies of
written statements which are certified copies obtained
from the Court record from the respective suits.
Photocopies of documents are not fit for comparison and
that too they pertain to nearly 50 years old documents;
vi) After a gap of 50 years, without there-being any basis,
the signatures cannot be sent for comparison.
8. In the light of the aforesaid rival submissions, it is relevant
to note that respondent - plaintiff filed the aforesaid suit in O.S.
No.171 of 2015 for declaration to declare him as owner of the suit
schedule property, that he is in possession of the suit schedule
property and for cancellation of document No.187 of 2015, dated
16.01.2015 executed by defendant No.1 in favour of defendant Nos.2
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to 5 as null and void and also for perpetual injunction. During
pendency of the said suit, the defendants filed the aforesaid I.A.
No.578 of 2024 under Section - 45 of the Evidence Act to send the
disputed signature Nos.1 and 2 on Ex.B7 - written statement in O.S.
No.741 of 1975 on the file of the District Munsiff at Karimnagar, to
hand-writing expert at Central Forensic Laboratory, Ramanthapur,
Hyderabad, for his opinion with comparison of admitted signatures
from Exs.B20 and B21 - written statement in O.S. No.202 of 1974 on
the file of the District Munsiff, Karimnagar and written statement in
O.S. No.203 of 1974 on the file of the very same Court, respectively.
9. There is no dispute that the trial Court has power to compare
the signatures of the party. At the same time, the object of Section -
45 of the Evidence Act i.e., expert opinion has to be considered by the
trial Court.
10. In the light of the same, it is relevant to extract Sections - 45
and 73 of the Evidence Act and the same is as under:
"45. Opinions of experts.--When the Court has to
form an opinion upon a point of foreign law or of
science, or art, or as to identity of handwriting 2 [or
finger impressions], the opinions upon that point of
persons specially skilled in such foreign law, science or
art, 3 [or in questions as to identity of handwriting] 2
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[or finger impressions] are relevant facts. Such persons
are called experts.
Illustrations
(a) The question is, whether the death of A was
caused by poison.
The opinions of experts as to the symptoms produced
by the poison by which A is supposed to have died, are
relevant.
(b) The question is, whether A, at the time of doing a
certain act, was, by reason of unsoundness of mind,
incapable of knowing the nature of the act, or that he
was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether
the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness
of mind usually renders persons incapable of knowing
the nature of the acts which they do, or of knowing that
what they do is either wrong or contrary to law, are
relevant.
(c) The question is, whether a certain document was
written by A. Another document is produced which is
proved or admitted to have been written by A.
The opinions of experts on the question whether the
two documents were written by the same person or by
different persons, are relevant."
"73. Comparison of signature, writing or seal with
others admitted or proved.--In order to ascertain
whether a signature, writing, or seal is that of the
person by whom it purports to have been written or
made, any signature, writing, or seal admitted or
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proved to the satisfaction of the Court to have been
written or made by that person may be compared with
the one which is to be proved, although that signature,
writing, or seal has not been produced or proved for
any other purpose.
The Court may direct any person present in Court
to write any words or figures for the purpose of
enabling the Court to compare the words or figures so
written with any words or figures alleged to have been
written by such person.
This section applies also, with any necessary
modifications, to finger-impressions."
11. Section 45 of the Evidence Act, inter alia, provides that the
Court can call for evidence of experts to form an opinion regarding the
genuineness of signatures and handwriting which are relied on by one
party and disputed by another party. It is also relevant to note that the
power to seek expert opinion under Section 45 of the Evidence Act is
discretionary and depends on facts of each case. The Courts under
Section 73 of the Evidence Act can themselves compare the signatures
or handwriting. However, the Hon'ble Supreme Court has time and
again cautioned that Courts cannot act as experts in all the cases.
Unless it is glaringly clear that the signatures are same or are different,
the Courts should normally call for an opinion from the experts.
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12. In State (Delhi Admn.) v. Pali Ram1, the Apex Court held
that prudence requires that a judge shall obtain expert opinion in the
matters of comparison of handwriting. The relevant paragraph is
extracted below:
"30. The matter can be viewed from another angle,
also. Although there is no legal bar to the Judge
using his own eyes to compare the disputed
writing with the admitted writing, even without the
aid of the evidence of any handwriting expert, the
Judge should, as a matter of prudence and caution,
hesitate to base his finding with regard to the
identity of a handwriting which forms the sheet-
anchor of the prosecution case against a person
accused of an offence, solely on comparison made
by himself. It is therefore, not advisable that a
Judge should take upon himself the task of
comparing the admitted writing with the
disputed one to find out whether the two agree
with each other; and the prudent course is to
obtain the opinion and assistance of an expert."
13. In Ajit Savant Majagvai v. State of Karnataka 2, the
Apex Court held that where there is even slightest of doubt in the
minds of the judge while comparing the admitted and disputed
. (1979) 2 SCC 158
. (1997) 7 SCC 110
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signatures, such signatures shall be sent for expert opinion under
Section 45 of the Evidence Act. The relevant paragraphs are extracted
below:
"37. This section consists of two parts. While the
first part provides for comparison of signature,
finger impression, writing etc. allegedly written or
made by a person with signature or writing etc.
admitted or proved to the satisfaction of the Court
to have been written by the same person, the
second part empowers the Court to direct any
person including an accused, present in Court, to
give his specimen writing or fingerprints for the
purpose of enabling the Court to compare it with
the writing or signature allegedly made by that
person. The section does not specify by whom the
comparison shall be made. However, looking to
the other provisions of the Act, it is clear that such
comparison may either be made by a handwriting
expert under Section 45 or by anyone familiar with
the handwriting of the person concerned as
provided by Section 47 or by the Court itself.
38. As a matter of extreme caution and judicial
sobriety, the Court should not normally take
upon itself the responsibility of comparing the
disputed signature with that of the admitted
signature or handwriting and in the event of the
slightest doubt, leave the matter to the wisdom
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of experts. But this does not mean that the
Court has not the power to compare the
disputed signature with the admitted signature
as this power is clearly available under Section
73 of the Act. [See: State (Delhi Admn.) v. Pali
Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 :
AIR 1979 SC 14]."
14. In Thiruvengadam Pillai v. Navaneethammal 3, the Apex
Court observed that it is risky to arrive at a conclusion regarding
signatures and handwriting without an expert opinion. The relevant
paragraph is extracted below:
"16. While there is no doubt that Court can
compare the disputed handwriting/ signature/
finger impression with the admitted
handwriting/signature/finger impression, such
comparison by Court without the assistance of
any expert, has always been considered to be
hazardous and risky. When it is said that there is
no bar to a Court to compare the disputed finger
impression with the admitted finger impression, it
goes without saying that it can record an opinion
or finding on such comparison, only after an
analysis of the characteristics of the admitted
finger impression and after verifying whether the
same characteristics are found in the disputed
. (2008) 4 SCC 530
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finger impression. The comparison of the two
thumb impressions cannot be casual or by a mere
glance. Further, a finding in the judgment that
there appeared to be no marked differences
between the admitted thumb impression and
disputed thumb impression, without anything
more, cannot be accepted as a valid finding that
the disputed signature is of the person who has put
the admitted thumb impression. Where the Court
finds that the disputed finger impression and
admitted thumb impression are clear and where the
Court is in a position to identify the characteristics
of fingerprints, the Court may record a finding on
comparison, even in the absence of an expert's
opinion. But where the disputed thumb impression
is smudgy, vague or very light, the Court should
not hazard a guess by a casual perusal."
15. In Ajay Kumar Parmar v. State of Rajasthan4, the Apex
Court held that, the Courts while dealing with handwriting or
signatures cannot itself act as an Expert. The relevant paragraph is
extracted below:
"28. The opinion of a handwriting expert is
fallible/liable to error like that of any other
witness, and yet, it cannot be brushed aside as
useless. There is no legal bar to prevent the Court
. (2012) 12 SCC 406
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from comparing signatures or handwriting, by
using its own eyes to compare the disputed writing
with the admitted writing and then from applying
its own observation to prove the said handwritings
to be the same or different, as the case may be, but
in doing so, the Court cannot itself become an
expert in this regard and must refrain from playing
the role of an expert, for the simple reason that the
opinion of the Court may also not be conclusive.
Therefore, when the Court takes such a task upon
itself, and findings are recorded solely on the basis
of comparison of signatures or handwritings, the
Court must keep in mind the risk involved, as the
opinion formed by the Court may not be
conclusive and is susceptible to error, especially
when the exercise is conducted by one, not
conversant with the subject. The Court, therefore,
as a matter of prudence and caution should hesitate
or be slow to base its findings solely upon the
comparison made by it. However, where there is
an opinion whether of an expert, or of any witness,
the Court may then apply its own observation by
comparing the signatures, or handwritings for
providing a decisive weight or influence to its
decision."
16. In view of the dicta in the above decisions, it can be said
that the Courts shall normally seek expert opinion when they are
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posed with a situation where they have to compare admitted and
disputed signatures. The Courts can refuse expert opinion only when
no doubt exists regarding the genuineness of the signatures after
comparison of the admitted and disputed signatures. In cases where
even a slightest doubt exists, the Courts shall send the admitted and
disputed signatures for expert opinion under Section - 45 of the
Evidence Act.
17. Thus, according to the petitioners, the grand-father of
defendant No.5, late Awaz Bin Musallam, filed a suit vide O.S.
No.219 of 1994 to set aside the judgment and decree dated 14.11.1975
in O.S. No.741 of 1975 passed by the District Munsiff, Karimnagar,
and to declare the judgment and decree in O.S. No.753 of 1981 passed
by the very same Court as null and void and not binding on him. In
the said plaint, he has specifically mentioned that he did not file
written statement in O.S. No.741 of 1975 and he never engaged any
lawyer. His signature was forged on the said written statement.
According to him, his signature was forged, managed to get the decree
in O.S. No.741 of 1975. Thus, sending the disputed signature Nos.1
and 2 on Ex.B7 - written statement in O.S. No.741 of 1975 on the file
of the District Munsiff at Karimnagar, to the hand-writing expert at
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Central Forensic Laboratory, Ramanthapur, Hyderabad, for opinion of
hand-writing expert with the comparison of the admitted signatures
from Exs.B.20 and B.21 - written statements in O.S. No.202 and 203
of 1974 on the file of the District Munsiff, Karimnagar, respectively,
all from the original records of the said Court.
18. There is no dispute with regard to the filing of the aforesaid
suits and decrees passed therein. However, O.S. No.219 of 1994 was
dismissed as not pressed on 03.11.1995. It is also not in dispute that
the grandfather of defendant No.5 in the plaint in O.S. No.219 of 1994
specifically pleaded that he never engaged a lawyer in O.S. No.741 of
1975 and never filed written statement in the said suit and his
signature was forged. Placing relying on the same, the defendants
filed the aforesaid application vide I.A. No.578 of 2024 in O.S.No.171
of 2015.
19. The trial Court dismissed the said application on the
ground that the specimen signatures of the grandfather of defendant
No.5 are not available. It is relevant to note that the signatures in
Exs.B20 and B21 - written statements in O.S. Nos.202 and 203 of
1974 are of the year 1974 and the disputed signature Nos.1 and 2 in
Ex.B7 - written statement in O.S. No.741 of 1975 are of the year
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1975. Referring to the same, Mr. Vedula Srinivas, learned Senior
Counsel appearing on behalf of the petitioners - defendants would
contend that time gap between two signatures is only one year.
Therefore, there would not be much variation in the signature of late
grandfather of defendant No.5.
20. As rightly contended by Mr. Vedula Srinivas, learned
Senior Counsel, the suits in O.S. Nos.202 and 203 of 1974 are of the
year 1974, while the suit in O.S. No.741 of 1975 is of the year 1975,
so the difference is only one year between the said suits. Thus, on the
said ground, the application filed by the defendants cannot be
dismissed.
21. The trial Court also dismissed the said application on the
ground that the files are not available and the Photostat copies of the
written statements which are certified copies obtained from the Court
record and, therefore, Photostat copies of documents are not fit for
comparison, that too they pertain to nearly fifty (50) years old
documents. It is relevant to note that the defendants have obtained
certified copies of the aforesaid documents i.e., Ex.B7 - written
statement in O.S.No.741 of 1975 and Exs.B20 and 21 - written
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statements in O.S. Nos.202 and 203 of 1974 from the Court of the
District Munsiff, Karimnagar. Thus, the said original documents must
be available in the said Court. Therefore, the trial Court cannot
dismiss the said application filed by the defendants on the said ground.
22. The trial Court also dismissed the said application on the
ground that they have filed the application after gap of fifty (50) years.
Therefore, without there being any basis, the documents cannot be
sent for comparison. In the light of the same, it is apt to note that the
defendants specifically stated the reasons in the affidavit filed in
support of petition in I.A. No.578 of 2024 for sending the documents
for comparison of signatures of the grandfather of defendant No.5
with his admitted signatures. Therefore, learned trial Court cannot say
that the petitioners 2 to 5 filed the said application without any basis.
In fact, the suit in O.S.No.171 of 2015 is filed for declaration.
23. With regard to delay, a Division Bench of the High Court
of Andhra Pradesh at Hyderabad in M/s. Janachaitanya Housing
Ltd., Ameerpet v. M/s. Divya Financers 5 held that the Court cannot
lay down any hard and fast rules controlling the discretion of the
Court to send the disputed documents/writings for the opinion of the
. AIR 2008 AP 163
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expert or to examine him in support of such opinion. On sending the
document to handwriting expert and on receiving report, parties, on
showing sufficient cause, may call upon the court to permit them to
examine hand-writing expert or any witness in support or rebut the
said opinion. Thus, no time could be fixed for filing applications
under Section - 45 of the 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 the each case. The said principle
was also followed in Kaveti Sarada v. Vemineni Hymavati 6 and
Guru Govindu v. Devarapu Venkataramana 7
24. In is pertinent to note that an application under Section - 45
of the Evidence Act can be filed at any time. But the defendants have
to mention the basis for which they are filing the said application
seeking expert's opinion. As discussed above, in the present case, the
defendants have specifically mentioned the reasons for sending the
aforesaid documents containing the signatures of grandfather of
defendant No.5 to the expert opinion for comparison. The suit filed
. AIR 2006 (NOC) 1406
. AIR 2006 AP 371
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by respondent/plaintiff in O.S.No.171 of 2015 is for declaration and
he is relying on the decree and judgment in O.S.No.741 of 1975.
Without considering the said aspects, purport of Section - 45 of the
Evidence Act and the principle laid down by the Apex Court and this
Court, learned trial Court dismissed the said application filed by the
petitioners 2 to 5. Therefore, the impugned order is liable to be set
aside.
25. In the light of the aforesaid discussion, the present Civil
Revision Petition is allowed, setting aside the impugned order dated
03.05.2024 passed by learned Principal District Judge, Karimnagar in
I.A. No.578 of 2024 in O.S. No.171 of 2015. I.A. No.578 of 2024
filed by the petitioners herein - defendants in O.S. No.171 of 2015 is
allowed directing the trial Court to take steps for sending the
documents mentioned in I.A. No.578 of 2024 to the expert so as to
obtain opinion from him. Liberty is granted to the plaintiff and the
defendants to take all the pleas and grounds which they have raised
before this Court and also make their submissions with regard to
reliability of documents, change of the signature, expert opinion etc.
and it is for the trial Court to consider the same. In the circumstances
of the case, there shall be no order as to costs.
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As a sequel thereto, miscellaneous petitions, if any, pending in
this revision shall stand closed.
_________________
K. LAKSHMAN, J
5th August, 2024
Mgr/vvr.
