Andhra Pradesh High Court - Amravati
Shaik Hussain Basha vs Shaik Anwar Hussain on 25 February, 2020
Author: G. Shyam Prasad
Bench: G. Shyam Prasad
* HON'BLE SRI JUSTICE G. SHYAM PRASAD
+ C.R.P No.3424 OF 2019
% 25-02-2020
# Shaik Hussain Basha, S/o Khaju Bhai,
Aged about 48 years, Muslim,
Occ. Real Estate Business, R/o H.No.7/80
Nabi Nagar, Nandyal Town,
Kurnool District, A.P.
... petitioner/defendant.
vs.
$ Shaik Anwar Hussain, S/o S.Abdul Azeez
Aged 48 years, Muslim, Occ: Business
R/o H No.22/139-A Kota Street
Nandyal Town, Kurnool District. A.P.
... Respondents.
!Counsel for the petitioner : Sri B.S. Reddy
^Counsel for the Respondents : Sri B. Siva Kesava Reddy
<Gist :
>Head Note :
? Cases referred : 1. 2017 (3) ALD 579
2. 2019 (5) ALD 177 (AP)
3. 2017 Lawsuit (Hyd) 227
4. 2017 (2) ALT 414
2
HON'BLE SRI JUSTICE G. SHYAM PRASAD
C.R.P. No.3424 OF 2019
ORDER:
This Civil Revision Petition arises out of the order dated 01.11.2019 passed in I.A.No.809 of 2019 in O.S.No.260 of 2018 on the file of II Additional Senior Civil Judge, Nandyal.
2. Heard the arguments of learned counsel for the petitioner and learned counsel for the respondent.
3. The revision petitioner is the defendant in the suit O.S.No.260 of 2018 filed for recovery of money. The petitioner has filed I.A.No.809 of 2019 in O.S.No.260 of 2018 under Section 45 of the Indian Evidence Act (for short "the Act") to send Ex.A1/promissory note to the expert for examination and opinion. The said petition was dismissed by the trial Court on the ground that in Ex.A1, the amount is mentioned both in words and figures, but there is a slight darkness in digit no.'4' in Rs.4,00,000/-, but does not show any alteration or correction, and it is written at that time with a single stroke.
4. Learned counsel for the petitioner mainly argued that the trial Court having observed that there is a slight darkens in the digit no.'4' in Rs.4,00,000/-, does not amount to any alteration or correction and it is written at a time on a single stroke. The trial Court could not state anything clarifying the darkness appeared in the digit no.'4'. It is argued that the trial Court finding with regard to observation 3 of darkness in the digit, amounts to material alteration in the amount, mentioned in the figure '4'. It is the case of the petitioner that in the figure Rs.1,00,000/-, the figure 1 was altered as '4' and that is why there is thickness in the figure '4'.
5. It is pertinent to note that when a plea is taken that there is a material alteration, the Court ought to have send disputed document to the expert for consideration, as to whether there was any alteration or not. Even under Section 73 of the Act, the Court can observe. But however, since it is a plea of material alteration, the Court cannot take a stand about thickness in the letter '4', as it is technical aspect. In fact, it is the petitioner, who has to prove, as to whether there is material alteration or not, as the burden of proof is on him under Section 103 of the Act. Section 103 of the Act, reads as under:
"103. Burden of proof as to particular fact.--The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Illustration 1 [(a) ] A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
6. No doubt, learned counsel for the respondent advanced arguments stating that though there is slightly darkness in letter '4' the amount mentioned in the words as 4 four lakhs rupees (Rs.4,00,000/-), there is no alteration or correction, and therefore, the darkness in the digit number '4' need not be considered as a material alteration. This argument cannot be accepted as the burden of proof is on the plaintiff to prove that there is material alteration, therefore the document has to be sent to expert for deciding the age of the ink.
7. Learned counsel for the respondent cited a decision reported in Polana Jawaharlal Nehru v. Maddirala Prabhakara Reddy1 contending that the age of ink between 3 years to 5 years cannot be decided and therefore there is no use of sending the document to the expert.
8. In fact, when there is a clear observation by the trial Court that there is thickness in the letter '4' it rises any amount of doubt with regard to the material alteration. Therefore an opportunity must be given to the petitioner to send the document to the expert for his opinion about thickness in the letter and also the words.
9. Learned counsel for the respondent placed reliance on the judgment in a case of S.Mohan Rao v. C.Doraswamy Reddy2 , wherein this Court has observed that, when such alteration is appearing to the naked eye, it is for the Court to decide by exercising power under Section 73 of the Act. No doubt the judgment is in a different context and the facts are 1 2017 (3) ALD 579 2 2019 (5) ALD 177 (AP) 5 also different, which is not directly applicable to the facts of the present case.
10. Learned counsel for the petitioner has also placed reliance on a decision of this Court in a case of Pabolu Prameela Rani W/o Anjaneyulu v/s Bogi Prasanthi, W/o Srinivasa3, wherein this Court has observed in para-4 as under:
"(4) During hearing when a query is put to the learned counsel for the petitioner as to how her client is prejudiced against the order of the Court below, she has failed to give satisfactory reply except stating that the process of obtaining expert's opinion will consume substantial time. I am wholly unconvinced with this reply because as the very basis on which the petitioner has made her claim was the suit agreement and the respondents are seriously disputing its genuineness. It is in the petitioner's own interest to obtain an expert's opinion on the suit agreement so that if she has a genuine case, she will succeed on expert's opinion. In other words, the job which the petitioner was expected to undertake is being carried out by the respondents.
When the genuineness of a document is in serious dispute, desirable that such document is examined by an expert and an opinion given thereon to aid the Court to come to a right conclusion. Though Section 73 of the Act vests power in the Court to compare the disputed signatures or writings, the preponderance of judicial opinion is to the effect that it is always desirable to seek an expert's opinion though eventually the opinion of the Court which is final. In the light of the above discussion, I do not find any jurisdictional error in the order of the Court below in allowing the I.A filed by the respondents. However, in the light of the apprehension expressed by learned counsel for the petitioner that the suit may be delayed in the process of obtaining expert's 3 2017 Lawsuit (Hyd) 227 6 opinion, she can move the Court below for expediting the process of obtaining expert's opinion."
11. In the light of the above judgment, no doubt, it is obvious that the preponderance of judicial opinion is to the effect that it is always desirable to seek an expert's opinion though eventually the opinion of the Court which is final. In the instant case, an opportunity must be given to the petitioner to prove that there is a material alteration as he has taken a plea to that effect. In the above decision it has been clearly observed by this Court that in the light of the apprehension of the learned counsel for the petitioner that the suit may be delayed in the process of obtaining expert's opinion, the Court given liberty to the petitioner to move the Court below for expediting the process of obtaining expert's opinion.
12. Learned counsel for the petitioner has also relied on another decision in the case of Polur Sreenivasulu v/s Gajulu Sravan Kumar4 wherein, it was held in para-9, as under :
"(9) The ratio laid down above squarely applies to the facts of the present case. Similar is the case decided in Medikonda Rama Swarajyalakshmi vs. Posina Satyanarana and another (1999 1 ALT 222).
The observations of the learned single Judge also may be observed as under:
"5.The learned counsel for the petitioner contended that it is only after the plaintiff's witnesses asserted that the signature on Ex.A-1 is that of the first 4 2017 (2) ALT 414 7 defendant, the defendants now sought for sending the same to handwriting expert since according to the first defendant the signature found on Ex.A-1 is not her signature and it cannot be said that there is any belatedness on the part of the petitioner-first defendant. From going through the impugned order I find that the petition filed by the revision petitioner has been dismissed on the ground that the petitioner/1st defendant has filed the present petition at a belated stage and the same is intended only to protract the matter and enjoy the benefits from the land for some time. But, in my opinion, it cannot be dismissed on the ground of belatedness. Even though the opinion of the handwriting expert cannot be conclusive, it is important piece of evidence to hold whether the suit document is forged document or not. Though, no doubt, the Courts have also got power under Section 73 of the Evidence Act to compare the disputed signature in order to give a finding on the issue involved, but at the same time, the Courts normally take the assistance of the handwriting expert. In these circumstances, I think it appropriate to send the disputed document for the opinion of the Handwriting Expert. However, the learned counsel for the petitioner (sic.1st respondent) strenuously contended that the impugned order cannot be said to be a case decided for exercising jurisdiction of this Court under Section 115 CPC. He relied upon the judgments of the Supreme Court in S.S.Khanna vs. F.J.Dillon, 1964 AIR (SC) 497, Baldevdas vs. Filmistan Distributors, 1970 AIR(SC) 406 and Gurdev Singh and others vs. Mehnga Ram and another, 1997 4 ALD (SN) 5 (SC) in support of his contention. From a reading of the judgment in S.S.Khanna's case, I find that the Supreme Court ruled that the case decided need not be the entire suit decided and it may be at interlocutory stage. But, what is to be seen is whether the rights of the person are affected by the impugned order. The principle laid down by the Supreme Court cannot be disputed. The explanation added to Sec.115 CPC specifically incorporated the principle laid down by the Supreme Court in the above judgment. But, what is to be seen is 8 whether the rights of the petitioner would be affected by the impugned order or not."
13. In the light of the above decisions, though no doubt, the Courts have also got power under Section 73 of the Act to compare disputed signatures in order to give a finding on the issue involved but at the same time Courts normally take the assistance of the handwriting expert. In the instant case, the opinion of expert is necessary, as the petitioner has taken a plea of material alteration, which may not be possible for the Court to decide under Section 73 of the Act, having observed that there is thickness in the figure '4'.
14. In view of the foregoing reasons, the order dated 01.11.2019 passed in I.A.No.809 of 2019 in O.S.No.260 of 2018 on the file of II Additional Senior Civil Judge, Nandyal, is hereby set aside, and the trial Court is directed to send the document to the expert, as prayed for, and dispose of the same, expeditiously.
15. Accordingly, the Civil Revision Petition is allowed. No order as to costs.
Miscellaneous applications, if any, pending shall stand closed.
________________________ G. SHYAM PRASAD, J.
Date : 25.02.2020 Gvl 9 HON'BLE SRI JUSTICE G. SHYAM PRASAD C.R.P. No.3424 OF 2019 Date : 25-02-2020 10 Gvl