Andhra HC (Pre-Telangana)
Velamala Jagadish vs Ippli Haranadha Rao on 30 January, 2004
Equivalent citations: 2004(3)ALD439, IV(2004)BC434
ORDER P.S. Narayana, J.
1. Heard Sri Chandra Sekhar Rao, Counsel representing the petitioner and Sri Rajasekhar Rao, Counsel representing the respondent.
2. The civil revision petition is filed as against an order made in I.A. No. 546/ 2003 in O.S. No. 19/2003 on the file of Principal Junior Civil Judge, Srikakulam.
3. The Revision petitioner, defendant in suit O.S. No. 19/2003 on the file of Principal Junior Civil Judge, Srikakulam, moved the application IA. No. 546/2003 under Section 45 of the Indian Evidence Act, 1872 praying for sending the documents - the suit demand promissory note along with signatures of the defendant on Vakalath and written statement, to the Director, Forensic Science Laboratory, Hyderabad for opinion for the reasons which had been specified in the affidavit filed in support of the application. It was stated in the affidavit filed in support of the application that the Revision petitioner/defendant never borrowed any amount and never executed any promissory note and had never seen the plaintiff and in such circumstances prayed for the relief specified supra. The respondent/plaintiff filed a counter in detail opposing the application. The learned Principal Junior Civil Judge. Srikakulam had dismissed the application holding that the petitioner had filed the said application only with a view to drag the proceedings. Aggrieved by the same, the present civil revision petition is preferred.
4. Sri Chandra Sekhar Rao, the learned Counsel representing the Revision petitioner had commented that the impugned order cannot be sustained since there is specific denial of the very execution of the promissory note itself and at the stage of cross-examination of PW-1 and PW-2 the application was filed and the same was moved at the earliest point of time and hence the observations made by the learned Principal Junior Civil Judge, Srikakulam that the application could have been filed on the date of filing of Vakalath or at the stage of filing of the written statement definitely cannot be sustained. Even otherwise on the ground of delay an application for sending a particular disputed document to an expert cannot be dismissed. The Counsel placed reliance on a decision of this Court in Medikonda Rama Swarajya Lakshmi v. Posina Sathyanarayana and Anr., .
5. Per contra Sri Rajasekhar Rao, the learned Counsel representing the respondent had explained the scope and ambit of Section 45 of the Indian Evidence Act, 1872 and also had submitted that this is only at best the opinion evidence and when specifically the execution of the promissory note was denied, the burden is on the plaintiff and when the plaintiff is prepared to examine the relevant witnesses to prove the very execution of the promissory note in dispute, sending the documents in question to any expert for the purpose of comparison, especially to compare the signatures on vakalath and written statement of the defendant would be wholly unnecessary. The learned Counsel also submitted that the learned Judge had exercised the discretion in a particular way and hence the said order need not be disturbed by this Court while exercising powers under Article 227 of the Constitution of India. The Counsel also had placed strong reliance on Nallabothu Purnaiah v. Garre Mallikarjuna Rao (died) by L.Rs. , Bolisetti Venkateswara Rao v. Nadakuditi Venkateswara Rao, and Ryali Kameswara Rao v. Bendapudi Suryaprakasarao and Ors., .
6. Heard both the Counsel.
7. It is no doubt true that the observations made by the learned Judge that the petitioner could have filed this application on the date of filing vakalath or at the stage of filing written statement may not be sustainable observations. But however, the learned Judge had expressed the opinion that at the stage of cross-examination of PW-1 and PW-2 the application was filed only with a view to delay the proceedings and observing so the application was dismissed. In the decision referred in Medikonda Rama Swarajya Lakshmi v. Posina Sathyanarayana and Anr. (supra), it was held:
"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 more time. But, 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, it is appropriate to send the disputed document for the opinion of the handwriting expert."
The decisions referred in Bolisetti Venkateswara Rao v. Nadakuditi Venkateswara Rao and Ryali Kameswara Rao v. Bendapudi Suryaprakasa Rao and Ors., (supra) relate to consideration of the opinion of the expert while dealing with the other evidence available on record. In the decision referred in Nalla Bothu Purnaiah v. Garre Mallikarjuna Rao (died) by LRs. (supra), at para-29 it was held :
"The law can thus be summarized that the proof of identification of handwriting or the signature, as the case may be, may be (1) by means of direct evidence; (2) by means of familiar evidence; (3) by means of comparison by the Court itself; (4) by the admission of parties; (5) by means of scientific comparison by an expert; and (6) by means of circumstantial evidence. By direct evidence means by examining the persons who are said to have been present at the time of writing of the disputed handwriting or signatures and by familiar evidence means by examining the persons who are conversant with the handwriting and signatures of the executant."
It is needless to say that expert evidence is opinion evidence and whenever an application for sending a particular disputed document to an expert is filed, that does not mean that necessarily and automatically the said application may have to be allowed. It would depend upon over all facts and circumstances and no doubt the discretion may have to be exercised by the concerned Court in a judicious manner. It may be that when there is possibility of having clear direct evidence, the Court may exercise the discretion of declining to send the disputed document to an expert for the purpose of comparison. As can be seen from the facts, this is a simple suit based on a promissory note and at the stage of cross-examination of PW-1 and PW-2, the Revision petitioner/ defendant moved the application I.A. No. 546/ 2003 for the purpose of sending the suit promissory note to compare the signature in the said document with the signatures of the defendant on Vakalath and written statement to the Director, Forensic Science Laboratory, Hyderabad for opinion. The learned Principal Junior Civil Judge, Srikakulam had exercised the discretion in a particular way and had declined to send the document to an expert for the purpose of comparison. It is needless to say that when several modes are available to prove a particular document and when the burden is on the plaintiff to prove the disputed document when specifically the execution had been denied, on his failure to discharge the burden, the plaintiff may not succeed and hence in the light of the said position and also taking into consideration that at the stage of cross-examination of PW-1 and PW-2 this application had been thought of, the learned Principal Junior Civil Judge, Srikakulam had declined to send the suit promissory note to the expert for the purpose of comparison with the signatures on the Vakalath and the written statement of the Revision petitioner/defendant. In the light of the limitations in exercise of the jurisdiction by this Court under Article 227 of the Constitution of India, I am not inclined to interfere with the discretion exercised by the learned Judge declining to send the suit promissory note for the purpose of comparison with the signatures on vakalath and written statement of the Revision petitioner/defendant. Hence, this Court sees no reason to disturb the impugned order and accordingly the civil revision petition shall stand dismissed. No costs.