Telangana High Court
Aaluri Mogulaiah vs Burra Aruna on 6 November, 2020
Author: G. Sri Devi
Bench: G. Sri Devi
THE HONOURABLE JUSTICE G. SRI DEVI
CIVIL REVISION PETITION No. 555 of 2019
ORDER:
Assailing the order, dated 11.02.2019, passed in I.A.No.812 of 2018 in O.S.No.58 of 2012 on the file of the I-Additional District Judge at Khammam, the petitioner, who is the 1st defendant, filed the present Civil Revision Petition under Article 227 of the Constitution of India.
First respondent herein is the plaintiff and the petitioner and second respondent herein are the defendants in O.S.No.58 of 2012. For the sake of convenience, the parties will hereinafter be referred to as arrayed before the trial Court.
The facts in issue are as under:
The plaintiff filed the above suit for specific performance of Sthirasthi Swadhina Vikraya Agreement, dated 26.09.2011, in respect of the suit scheduled property and to direct the 1st defendant to execute registered sale deed in favour of the plaintiff and also direct the 2nd respondent not to alienate the suit scheduled property to third parties. A written statement came to be filed by the 1st defendant. In the said suit, the evidence of the plaintiff was closed and when the case was posted for cross-examination of the 1st defendant, he filed the present I.A.No.812 of 2018, under Section 45 of the Evidence Act, seeking to send Ex.A1-Agreement to the 2 Forensic Science Laboratory along with any admitted signatures of the 1st defendant in order to ascertain whether the signature on Ex.A1 belongs to the 1st defendant or not, on the ground that the 1st defendant never signed the agreement at any point of time.
The plaintiff filed counter opposing the application and contended that the 1st defendant has not taken any plea in his written statement or additional written statement that he is ready to take steps to send Ex.A1/Agreement of sale, dated 26.09.2011 for expert opinion. It is further contended that the 1st defendant has not produced his Aadhar Card, Ration Card, Driving Licence and specimen signatures in his bank account by the time of Sthirasthi Swadhina Vikraya Agreement as per the directions of the Court in I.A.No.354 of 2016. It was further contended that the 1st defendant filed the present petition on frivolous grounds in order to drag on the proceedings and hence prayed to dismiss the petition. After considering the rival contentions, the trial Court dismissed the petition. Challenging the same, the present Civil Revision Petition is filed by the 1st defendant.
At the time when the matter was taken up for hearing, there is no representation on behalf of the 1st respondent. Though notice has been served upon the 2nd respondent, none appeared on his behalf. Hence, heard learned Counsel appearing for the petitioner/1st defendant and perused the record.3
Learned Counsel for the petitioner/1st defendant would submit that the Court below erred in dismissing the petition with a finding that the Court itself can compare the signatures under Section 73 of the Evidence Act. He further submits that there is no bar for the Court below at any stage of the case to obtain opinion of the expert for the purpose of arriving at a decision on the basis of the opinion of experts.
It is the case of the 1st respondent/plaintiff that the petitioner has not taken any plea in his written statement that he is ready to take steps to send Ex.A1 for expert opinion and the petitioner has not produced his Aadhar Card, Ration Card, Driving Licence and specimen signatures in his bank account by the time of Sthirasthi Swadhina Vikraya Agreement as per the directions of the Court in I.A.No.354 of 2016 and that the petitioner did not prefer any revision against the said order. It is further stated that the petitioner has filed this petition at a belated stage only to drag the proceedings of the suit.
Before considering the rival submissions, it would be appropriate to extract the provisions of Section 45 of Evidence Act, which reads as under:
"45. Opinion of Experts: When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such 4 foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts."
Relying upon various decisions of the Supreme Court, this Court in Velaga Sivarama Krishna v. Velaga Veerabhadra Rao1, held as under:
"Whenever a party disputes the signature on a particular document, two remedies are open to him, either to request the Court to compare the signatures or to file an application to send the document to the expert for comparison. When the petitioner opted to file an application to send the document to the handwriting expert, no prejudice will be caused to either party. When he is asserting that the signature is that of the said party, even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the stores, the speed of writing, the pattern of writing etc., therefore, it cannot be said that no useful purpose will be served by sending the document to the expert. After comparison, if the similarities of the disputed signature and the admitted signatures are very negligence, then the Court can formulate its opinion with the assistance of the expert's report and by comparing the signatures whether the report has to be accepted or not. But, if the opportunity is denied to the defendant and if the matter is carried to the appellate Court, there is every likelihood of commenting that he did not avail the opportunity of filing an application for sending the document for handwriting expert's opinion, if he is so sure that the disputed signature does not belong to him. In view of the circumstances, I am of the view that it is essential to send the document to the expert for comparison 1 (2009) 1 ALT 379 5 at the request of the party in the interest of justice, which cannot cause any amount of prejudice to the plaintiffs in the present suit, therefore, the order of the lower Court is liable to be set aside."
In Pabolu Prameela Rani v. Bogi Prasanthi and another2 this Court held as under:
"When the genuineness of a document is in serious dispute, it is 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 disputes 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."
Admittedly, the suit is filed for specific performance of Sthirasthi Swadhina Vikraya Agreement. In the written statement itself, the 1st defendant stated that there was no transaction between the plaintiff and defendants as alleged by the plaintiff and there was no agreement entered into between the parties and as such he denied his signature on the said document. When the case was coming up for cross-examination of the 1st defendant, he filed the present petition to send the disputed document to the Forensic Science Laboratory for expert opinion. Since the entire case rests on the disputed document, the Court below ought not to have rejected the said application filed by the petitioner/1st defendant. 2 (2017) 3 ALT 280 6 In view of the judgments referred to above; as recording of evidence is still going on and having regard to the facts and circumstances of the case, the Civil Revision Petition is allowed and the order, dated 11.02.2019 passed in I.A.No.812 of 2018 in O.S.No.58 of 2012 on the file of the I-Additional District Judge, Khammam, is set aside and accordingly, the said I.A. is allowed.
Miscellaneous petitions, if any, pending shall stand closed. There shall be no order as to costs.
______________________ JUSTICE G. SRI DEVI 06.11.2020 Gsn/gkv