Andhra Pradesh High Court - Amravati
M Ramakrishna, W.Godavari Dist 2 Others vs M Venkateswara Rao, Warangal Dist on 25 July, 2019
Author: T. Rajani
Bench: T. Rajani
SMT JUSTICE T. RAJANI
C.R.P. Nos.812 and 813 of 2016
COMMON ORDER:
These civil revision petitions are filed under Article 227 of the Constitution of India, assailing common order dated 02.12.2015, allowing I.A.Nos.1417 and 1418 of 2015 in O.S.No.224 of 2009 on the file of the Court of the Principal Senior Civil Judge, Machilipatnam, filed by the respondent- plaintiff, seeking (1) to reopen the suit, and (2) to send Ex.B.6 Will dated 08.10.2002 to the Handwriting Expert for comparison of the admitted and disputed signatures of the executor.
2. Heard the learned counsel for the petitioners-defendants and learned counsel for the respondent-plaintiff.
3. The counsel for the petitioners submits that the evidence of the witnesses has completed and that the respondent has taken the plea of forgery and creation of the Will in the plaint itself, but he did not choose to file the said petitions immediately after the pleadings and the issues.
4. A perusal of the petitions filed by the respondent in the lower Court would show that absolutely no reasons are mentioned for the delay in filing the petitions, which are filed at the stage of arguments of the suit. It is also admitted that the pleas of forgery and creation of the Will are taken in the plaint itself. In such circumstances, without mentioning the reasons for not taking steps to send the disputed Will to the Expert at the earliest point of time, the petitions cannot be allowed. The 2 lower Court strongly assumed that the respondent had filed these petitions for the purpose of protracting the litigation and he being the plaintiff would be eager to have a judgment at an early date. But the said assumption cannot be applied universally. However, the respondent has to put-forth reasons for not coming to the Court with such application at the earliest. The counsel for the respondent relies on the judgment of the Division Bench of this Court in Janachaitanya Housing Ltd., vs. Divya Financiers1 wherein the Court while holding that the application under Section 45 of the Indian Evidence Act need not be filed soon after the written statement is presented, observed that wherever the necessity to file the application arises, the petitioner has to explain the circumstances necessitated to file such application, even at the stage of arguments. But, in this case, unfortunately, the counsel for the respondent is not in a position to explain the circumstances, which necessitated the respondent to file the application under Section 45 of the Indian Evidence Act. The delay in filing the applications may not be fatal, if proper reasons are put-forth for the delay. Without there being any reasons for the delay, at this stage, the respondent cannot be permitted to send the disputed Will to the Expert. Hence, in the considered opinion of this Court, the impugned order to reopen the suit and to send the disputed Will to the Expert cannot be sustained.
5. Accordingly, the civil revision petitions are allowed, setting aside the common order dated 02.12.2015, allowing 1 AIR 2008 163 (AP) 3 I.A.Nos.1417 and 1418 of 2015. Consequently, I.A.Nos.1417 and 1418 of 2015 in O.S.No.224 of 2009 on the file of the Court of the Principal Senior Civil Judge, Machilipatnam, shall stand dismissed.
As a sequel, the miscellaneous applications, if any pending, shall stand closed.
___________________ SMT T. RAJANI, J July 25, 2019 YS