Andhra HC (Pre-Telangana)
Gulam Ghouse And Ors. vs Madarse Jeelania Shama-Ul-Uloom ... on 26 April, 2007
Equivalent citations: 2007(4)ALD435, 2007(4)ALT432, AIR 2007 (NOC) 1985 (A.P.)
ORDER G. Yethirajulu, J.
1. The petitioners are the defendants in O.S. No. 16 of 2002 on the file of the Senior Civil Judge, Medak. The respondents are the plaintiffs in the above suit filed for specific performance of an agreement of sale, dated 5-2-1993 said to be executed by the defendants.
2. During pendency of the suit, the defendants filed I.A. No. 554 of 2006 under Sections 45 and 73 of the Indian Evidence Act requesting the Court to send the documents, covered by Exs.A-6, A-8 and A-9, to the handwriting expert for comparison with the admitted signatures of the first defendant on Exs.A-1 to A-5 and other documents and give an opinion. The lower Court while dismissing the said application observed that the earlier application, covered by I.A. No. 454 of 2006, under Section 45 of the Indian Evidence Act for comparison of the signatures on the documents was dismissed by the lower Court. Therefore, the petitioners again filed the present I.A. to send the documents to the handwriting expert to compare the signatures with the admitted signatures and to give an opinion. It was further-observed that in the absence of opinion of the expert, it is not appropriate for the Court to make any comparison as requested by the petitioners especially when the petitioners themselves admitted certain documents. It was further observed that instead of the petitioners preferring a revision or appeal against the order in I.A. No. 454 of 2006 dated 25-9-2006, the petitioners again filed the present I.A. and it is only to drag on the matter and therefore, it is liable to be dismissed.
3. The petitioners, being aggrieved by the order of the lower Court dated 12-12-2006 in I.A.No. 554 of 2006, preferred the present revision contending that when it is the specific plea of the defendants that they did not execute Exs.A-6, A-8 and A-9 documents and they were forged for the purpose of saving the limitation, it is essential to send the documents to the expert for comparison.
4. The earlier petition was dismissed by the lower court with an observation that the Court can compare the signatures. The present petition was dismissed by observing that in the absence of expert opinion, it is not desirable for the Court to compare the signatures.
5. In the earlier application, the lower Court further observed that the petitioners filed the passport of the year 1999, ration card of the year 2006, agreement dated 8-1-1999 and some cash receipts of State Bank of Hyderabad. It was further observed that the signatures of those documents are not of the year 2006 and ration card does not relate to petitioners. In the suit, the entire evidence of the plaintiffs was over and the matter was coming up for further evidence of the defendants, therefore, the Court is of the view that there is no necessity to send Exs. A-6, A-8 and A-9 documents to expert for comparison and report regarding his opinion.
6. Whenever the signature on the document is disputed, the party who is disputing the signature may make an application under Section 45 of the Evidence Act to send the document to the expert for comparison. Normally, the Courts are inclined to allow the petition to send the documents so that the opinion of the expert would help the Court to come to a right conclusion regarding the genuineness of the document. The earlier application was dismissed by the lower Court on the ground that the documents filed by petitioners, which contain the admitted signatures, do not belong to the year 2006. The agreement of sale, covered by Ex.A-1, was executed by the defendants on 5-2-1993. The receipts, covered by Exs.A-2 to A-5, were also executed on 5-3-1993, 17-12-1993, 6-5-1993, 23-7-1993 and 19-8-1993. The disputed document is said to be a document regarding (sic. relating) to the extension of time by taking Rs. 25,000/- on 8-11 -2001, in addition to the amount already received towards sale consideration. The agreement of sale was executed for the sale of a share constructed in the area of 29.45 square yards at Medak town.
7. The contention of the plaintiffs is that though the petitioners executed the document, dated 8-11-2001 for extension of time for execution of the sale deed, subsequently they failed to execute the sale deed despite a registered notice issued by them.
8. It is not known whether the time is essence of the contract. If the time is essence of contract, the document said to be executed by the defendants on 8-11 -2001 place (sic. plays) a vital role in deciding the maintainability of the suit. Since the document was said to be obtained eight years after execution of the sale deed (sic. agreement of sale) and execution of the receipts for payment of the amounts, it is not known as to why the plaintiffs kept quiet for such long period for issuing legal notice and filing the suit for specific performance of the contract. When it is a specific plea that Exs.A-6, A-8 and A-9 are fabricated documents, it is essential in the interest of justice to dispel the said doubt by obtaining the opinion of an handwriting expert, which will help the Court in arriving at a right conclusion regarding the genuineness of the document.
9. The learned Counsel for the plaintiffs further contends that the documents need not be sent to the expert opinion when the evidence relating to the documents is available before the Court and in support of his contention, he relied on certain judgments of this Court.
(i) Kaveti Sarada v. Vemineni Hymavathi ; and
(ii) Vajjala Sree Rama Murthy and Anr. v. Tadepalli Narayana Murthy .
10. In Kaveti Sarada's case (1 supra), the plaintiff filed a suit for recovery of the money on the basis of a pro-note. The defendant contested that it is a forged document. During the course of trial, the plaintiff examined P.Ws.1 to 3 and marked the promissory note as Ex.A-1. At that time, the defendant filed an application to send the promissory note to the handwriting expert for comparison with the admitted signatures. The application was opposed by the plaintiff stating that she has already adduced evidence to prove the suit promissory note by examining attestor and scribe and therefore, the application filed at the belated stage cannot be maintained. The court below dismissed the said application and in the revision preferred against the said order, a learned single Judge of this Court while considering the scope of Section 45 of the Indian Evidence Act held as hereunder:
Having regard to the facts and circumstances and particularly keeping in view of that the necessary evidence was already addused by both the parties in support of their claims, the Court below in exercise of its discretion concluded that it is not necessary to send Ex.A-1 pro-note for expert's opinion. Such discretion exercised by the Court below on appreciation of the evidence already adduced cannot be held to be perverse or vitiated on account of any extraneous considerations.
The application for sending the disputed signatures to an expert for comparison with the admitted signatures cannot be ordered as a matter of course, but it has to be considered keeping in view the facts and circumstances of a particular case. Since such discretion was exercised by the Court below in a judicious manner, the impugned order in declining to send Ex.A-1 pro-note for opinion of handwriting expert cannot be said to be vitiated by any patent error of fact or law.
11 In Vajjala Sree Rama Murthy's case (2 supra), the plaintiff filed suits for recovery of amounts on two promissory notes. The trial of the suits commenced and recording of evidence has Deen completed At that stage, the defendants filed two applications under Section 45 of the Indian Evidence Act requesting the Court to send the documents to the Forgery Detection Cell, Indian Securty Press. Nasik, inviting an opinion as to the date and year of manufacture or punting of the stamps on the promissory notes The trial Court dismissed the said applications through separate orders The petitioners pleaded that the promissory notes were obtained from them by coercion on 30-4-200?. During the course of the trail, they filed two applications to send the documents under Section 45 of the Indian Evidence Act, for opinion of the expert The said applications were rejected by the trial Court and the order of rejection was afformed by this Court in revisions in the revision, a learned single Judge of this Court observed as hereunder:
An exercise, to be undertaken under Section 45 of the Evidence Act, vis-a-vis, a document, must be compresensive and total. A party cannot be permitted to split the purpose in the expert under examination through an expert under Section 45 of the Evidence Act, in other words if sevral parts of the documents are to be subjected to expert opinion, the relief must be claimed in relation to all Different applications cannot be permitted to be made in relation to each and every facet of the document In a way, it can be said that such a course is prohibited under Order II CPC, insofar as, it governs the course of applications also.
12 In the present case, the petitioners did not ask the opinion of the expert for different purposes. Both the applications were filed only for comparison of the signatures on the ground that those documents are fabricated documents. Therefore, the decisions rendered by this Court in the above judgments are clearly conveying that the Court can exercise its discretion depending upon the facts and circumstances and the defendants cannot ask for opinion for different parts of a disputed document for (sic. at) different times. In this case, the crucial issue regarding the limitation is involved through the crucial documents covered by Exs.A-6, A-8 and A-9.
13. In State (Delhi Administration) v. Pali Ram the Supreme Court held that to prove the handwriting, which is in the nature of comparison, the duty is cast upon the Court to use its own mind and eyes to compare the admitted writing with the disputed one. When the Court forms an opinion that the assistance of an expert is essential to enable it to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the filing (filling) of loopholes in the prosecution case is purely a subsidiary factor.
14. On the basis of the principle laid down by the Supreme Court, there is no bar to send the document to the expert for comparison. The Court exercises its mind judiciously to give a right conclusion whether it is essential to send the documents for opinion of the experts. As already observed, the crucial issue regarding the maintainability of the suit is involved in the preset suit on the basis of Exs.A-6, A-8 and A-9. When such a crucial issue is involved, the lower Court ought to have exercised its discretion judiciously and come to a conclusion that the opinion of the expert would help the Court to give a quietus to the plea taken by the defendants.
15. After going through the entire material, I am of the view that the lower Court ought to have allowed the application, instead of dismissing it by observing that it is belated one. Immediately after examination of P.Ws.1 to 3, the defendants filed the application, therefore, it cannot be treated as belated application and the disposal of the earlier application will not operate as res judicata, as the present application was filed to compare the disputed signatures with Exs.A-1 to A-5. Therefore. I am inclined to set aside the impugned order.
16. In the result, the Civil Revision Petition is allowed and the impugned order is set aside. I.A.No. 554 of 2006 on the file of the Senior Civil Judge, Medak, is allowed. The lower Court is directed to take steps to send the documents to the expert and the petitioners shall bear the expenses as directed by the Court to get the opinion of the expert for the said purpose. Each party shall bear his own costs.