Telangana High Court
Bitla. Jayaprakash, vs Amrutham Pushpa, on 19 July, 2024
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
1
THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
CIVIL REVISION PETITION No.1136 of 2024
ORDER:
This Civil Revision Petition, under Article 227 of the Constitution of
India, questions the legality of the order dated 12.03.2024 passed by the
Principal Junior Civil Judge, Jangaon, (for short, 'the trial Court') in IA
No.421 of 2023 in OS No.102 of 2013, this civil revision petition is filed.
The revision petitioner herein is the defendant in the suit. For the sake of
convenience of reference, the parties will hereinafter be referred as they
were arrayed before the trial Court.
2. Heard Mr. Bethi Venkateshwarlu, learned counsel for the revision
petitioner/defendant; and Mr. Ashok Reddy Kanathala, learned counsel for
the respondent/plaintiff.
3. Brief facts of the case are that the plaintiff filed suit OS No.102 of
2013 for specific performance of contract based on an Agreement of Sale
dated 30.01.1997.
The defendant filed the application IA No.421 of 2023 under Section
45 of the Indian Evidence Act read with Section 151 of the Code of Civil
Procedure on the ground that the Agreement of Sale dated 30.01.1997 is
fake and the husband of plaintiff created the said document by purchasing
the document vide SL No.2406 dated 19.12.1986 from the Stamp Vendor
N. Laxmaiah at Jangaon, and forging the signature of defendant and
therefore it is necessary to send the Agreement of Sale dated 30.01.1997 to
hand-writing expert for comparison of signature of defendant with the
signature contained in the said document so as to verify its genuineness.
The plaintiff filed counter to the said IA stating that the suit was
filed on 22.04.2013; that the defendant filed his written statement and
counter in the suit on 08.10.2013; issues were framed and cross
examination of DWs.1 to 3 was completed and the suit is coming up for
cross examination of DW-4 and at this belated stage the present
application is filed only to cover lacunae and hence the application is not
maintainable.
The trial Court dismissed the application by observing that the
application was filed at a belated stage of ten years after filing of suit.
4. Learned counsel for the petitioner/defendant contends that the
application was filed immediately after conclusion of defendant side
evidence DWs.1 to 4 and there is no delay; that the application can be filed
at any stage of the suit; that the defendant had categorically pleaded in the
written statement that the suit was filed based on a forged document and
as the burden lies on the defendant to prove his case, sending the
impugned Agreement of Sale dated 30.01.1997 for expert opinion for
comparison of admitted signature of defendant with that of the signature
contained in that Agreement of Sale is necessary and therefore the trial
Court erred in dismissing the application on the ground of belated stage is
not a valid ground and hence the impugned order is liable to be set aside.
Learned counsel relied on the judgment of this Court in Badavath
Srinivas v. RatnavathGopal 1.
5. Per contra, learned counsel for the respondent/plaintiff would
contend that the trial Court rightly dismissed the application on the
ground of belated stage as the defendant filed his written statement ten
years ago and, after completion of defendants' side evidence, filed the
present application to cover up the lacunae in his case. Learned counsel
relies on the judgment of High Court of Andhra Pradesh in
DaraSrinivasaRao v. Nallamilli Venkata Reddy 2.
6. Having considered the respective submissions, and perusing the
impugned order, it is to be noted that the burden of proof lies on the
defendant when he is disputing the document as forged. It is pertinent to
note that this Court in Badavath Srinivas (1 supra), while discussing the
law laid down by the Hon'ble Supreme Court in Ajit Savant Majagvai v.
Civil Revision Petition No.2471 of 2023
2020 SCC OnLine AP 1258
State of Karnataka 3and also in Ajay Kumar Parmar v. State of
Rajasthan 4, held as under:
"17. In the light of the aforesaid discussion, coming to the
facts of the present case, as discussed above, the petitioner
herein-defendant laid foundation by contending in the written
statement that the suit promissory note was forged one. The
petitioner cross-examined PW.1 (Plaintiff) on 11.04.2022, tried
to elicit truth, but he could not. Therefore, on the very same
day itself, he has filed the aforesaid application. There is no
delay. Even if there is delay in filing the application, the
object and purport of Section-45 of the Evidence Act is to be
considered by the trial Court and this Court. When there is
specific denial by the petitioner-defendant that his signature
was forged, it is not safe for the trial Court to come to a
conclusion that the defendant did not explain the reasons
properly for the delay caused in filing the aforesaid
application. The said finding is contrary to the object and
purport of Section-45 of the Evidence Act and record. The said
principle was also reiterated by this Court in KatikeBheem
Shankar v. Mrs. T. Laxmi @ Punyavathi. As rightly contended
by learned counsel for the petitioner that no prejudice would
be caused to the respondent-plaintiff in obtaining expert
opinion by sending Ex.A1-promissory note dated
13.11.2011."
7. Having perused the judgments relied on by both the learned counsel,
this Court is of the view that no prejudice would be caused if the disputed
document viz., Agreement of Sale dated 30.01.1997 is sent to handwriting
expert for comparison of signatures of the defendant. In that view of the
matter, the impugned order is liable to be set aside.
(1997) 7 SCC 110
(2012) 12 SCC 406
8. Accordingly, the civil revision petition is allowed by setting aside the
order dated 12.03.2024 passed by trial Court in IA No.421 of 2023 in OS
No.102 of 2013. No costs. Miscellaneous petitions, if any pending, shall
stand closed.
______________________________
Justice NageshBheemapaka
19th July, 2024
ksm
