Telangana High Court

Smt. Goondla Jyohti vs Kum. M.Anusha on 28 March, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy

     THE HONOURABLE SRI JUSTICE P.SAM KOSHY

     CIVIL REVISION PETITION Nos.535 and 937 of 2024


COMMON ORDER:

These are two Revision Petitions which have been filed in

respect of the same Suit and the grievance also seems to be the

same in these two Civil Revision Petitions. Therefore, this Court

proceeds to decide the two Civil Revision Petitions by a common

order.

2. Heard Mr. Chavali Ramanand, learned counsel for the

petitioner in Civil Revision Petition Nos.937 and 535 of 2024

and Mr. Srinivas Velagapudi, learned counsel for the respondent

Nos.1 to 3 in Civil Revision Petition Nos.937 and 535 of 2024.

3. For the sake of convenience, the parties hereinafter shall

be referred to as they are arrayed before the Court below.

4. Civil Revision Petition No.535 of 2024 has been filed on

19.03.2024 aggrieved by the docket order dated 13.02.2024

whereby the Court of the XIV Additional Chief Judge, City Civil

Court at Hyderabad, had rejected I.A.Nos.174, 175 and 176 of

2024 and without giving a breathing time to the parties,

proceeded for hearing the case on the very same day. The

matter was requested for an out of turn hearing by the learned PSK, J ::2:: C.R.P.Nos.535 and 937 of 2024

counsel for the petitioner at the first instance when it was

strongly contended by him that after dismissing the I.A's on

13.02.2024 and while starting final hearing of the Suit, the

Court below heard arguments of the defendants first before

hearing the plaintiffs. Therefore, this Court granted an interim

order staying the further proceedings before the Court below

only on the ground that the procedure adopted by the Court

below in hearing the defendants first before hearing the

arguments of the plaintiffs.

5. Civil Revision Petition No.937 of 2024 has been filed

assailing the order dated 13.02.2024 whereby the three (03)

I.A's filed by the petitioner and of which rejection of I.A.No.175

of 2024 is what is under challenge in the instant Civil Revision

Petition. Vide the said I.A., the petitioner had sought for a relief

under Section 45 of the Indian Evidence Act read with Section

151 of CPC seeking for an expert opinion on the veracity of the

signatures of DW.1 found of Exs. B.9, B.22 and B.50 with the

admitted signatures of D1 available on the Vakalat as also in

the written statement.

6. The brief facts relevant for disposal of the two Civil

Revision Petitions are that, the Original Suit i.e. O.S.No.496 of

2010 has been filed for partition and separate possession in the PSK, J ::3:: C.R.P.Nos.535 and 937 of 2024

Suit schedule property. There was a Civil Revision Petition filed

before the High Court i.e. Civil Revision Petition No.3354 of

2012 which stood disposed of on 08.11.2012 wherein the High

Court had partly allowed the Civil Revision Petition. While

modifying the order passed by the Court below in I.A.No.3399 of

2010 and while disposing of the Revision Petition, there was a

specific direction given to the Court below to dispose of the said

Suit within a period of six (06) months from the date of receipt

of a copy of the order. The said order dated 08.11.2012 in spite

of more than 12 ½ years having been passed, till date has not

been honoured and the Suit is still pending consideration before

the Court below. On some pretext or the other the matters

continued travelling from Civil Court to the High Court and

back.

7. One such instance is the present two Civil Revision

Petitions in which this Court also at the first instance had

granted an interim protection on 16.02.2024 so far as the

further proceedings of the Suit are concerned. The ground for

granting interim relief in Civil Revision Petition No.535 of 2024

was primarily on the ground that the Court below while hearing

the matter had started hearing the defendants first even before

the plaintiffs have started the arguments.

                                                                PSK, J
                              ::4::     C.R.P.Nos.535 and 937 of 2024

8. However, when the matter was taken up for hearing today,

learned counsel appearing for the respondent Nos.1 to 3

contended that since the learned counsel for the petitioner on

13.02.2024 was pre-occupied in another Court, he could not

make it and therefore in that backdrop one of the respondents

who was supporting the claim of the plaintiffs had started the

arguments.

9. According to the learned counsel for the respondent Nos.1

to 3 since there was no clash of interest between the defendants

who had started his arguments with the plaintiffs, no prejudice

whatsoever would had caused to the interest of the plaintiffs nor

was there any objection to the plaintiffs for the defendants in

leading the arguments. This fact is not disputed by the learned

counsel for the petitioner. He however contended that even

otherwise the grievance could have been raised only by the

plaintiffs and it cannot be permitted to be raised by the

respondents herein.

10. After hearing the parties, this Court is convinced on the

submissions made by the learned counsel for the respondent

Nos.1 to 3 and does not find any illegality or procedural lapse

for the Court below to have heard the respondents who is

supporting the claim of the plaintiffs ahead of the plaintiffs.

                                                                    PSK, J
                                ::5::       C.R.P.Nos.535 and 937 of 2024

Thus, this Court does not find any merits calling for an

interference or an appropriate direction to the Court below so

far as Civil Revision Petition No.535 of 2024 is concerned and

the same is rejected.

11. As regards the Civil Revision Petition No.937 of 2024, as is

contended, the challenge is to the rejection of I.A.No.175 of

2024 by which an application under Section 45 of the Indian

Evidence Act read with Section 151 of CPC stood rejected.

12. It would be relevant at this juncture to take note of the

findings given by the Court of the XIV Additional Chief Judge,

City Civil Court at Hyderabad, while rejecting the said

application. For ready reference, the relevant portion of the

findings is reproduced herein under:

"8. Sec.68 of the Indian Evidence Act requires examination of atleast one attesting witness to the Will to prove its execution in terms of Sec.63 of the Succession Act. If the attestor of the Will deed died, the defendant can examine the person who can identify the signature of the deceased attestor. In this case D1 and D3 are the two attestors of the Will deed. They were already examined and one of the attestor ie., DW3 identified his signature in the said Will. The report of an expert is only a opinion but not a conclusive proof. It is a settled position of law that expert opinion is only an opinion for corroboration and it is not a conclusive proof. Hence expert report cannot over ride the oral evidence adduced by the witness. The petitioner has a chance to confront the the said Will to these Defendants and also confronted to DW3, in this way she can prove its contents. Signatures of Oruganti Basaiah on Ex.B.9 is not disputed by DW3 one of the attestor, hence, the Court PSK, J ::6:: C.R.P.Nos.535 and 937 of 2024

will examine the evidence and ascertain the veracity of the evidence regarding the said document in main judgment.

9. With regard to Ex.B16 and B22 they are registered gift deeds. With regard to proof of a registered document, registration itself is a judicial notice unless it is proved otherwise. However the court will appreciate the evidence altogether following the rules of evidence. In the circumstances sending the above documents for the opinion of hand writing expert will not serve any purpose except causing delay."

13. From the explanation so provided by the Court below what

is apparently evident is that the reasons assigned are well

founded and has been well dealt with by the Court below while

considering the contentions put forth by the learned counsel for

the petitioner. This Court has no hesitation in holding that the

order is a well-reasoned and speaking order.

14. Another fact which needs to be considered is that the need

for an expert opinion of a signature would be primarily required

in the event of attesting witnesses also not being alive. This in

other words means that if there are attesting witnesses

available, it is they who are required to be examined to prove

the document. Moreover, the Court below was right when it held

that mere opinion of a handwriting expert cannot be accepted as

a conclusive proof. At the same time, the handwriting expert

opinion also cannot be given more weightage than the

deposition of the attesting witnesses who are alive and who are PSK, J ::7:: C.R.P.Nos.535 and 937 of 2024

willing to who and have also deposed before the Court below.

The plaintiffs had ample opportunity to cross-examine these

witnesses to hold that their contention is not acceptable.

15. It would also be relevant at this juncture to take note of

the provisions of Section 68 and Section 69 of the Indian

Evidence Act which again for ready reference are being

reproduced herein under:

"68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

69. Proof where no attesting witness found.--- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."

16. Plain reading of Section 68 would indicate that for the

purpose of proving a document, an attesting witness alive can

prove the document and its execution. Section 69 also envisages PSK, J ::8:: C.R.P.Nos.535 and 937 of 2024

that it is only in the event of there being no attesting witness

found, will a need to prove a document and its execution by

other means which could include an expert opinion arise.

17. Upon plain reading of the statutory provisions i.e. Section

68 and Section 69 read with the findings of the Court below in

paragraph Nos.8 and 9 which are reproduced in the preceding

paragraphs, this Court does not find any strong case made out

by the learned counsel for the petitioner calling for an

interference with the impugned order dated 13.02.2024. The