Andhra HC (Pre-Telangana)
Medikonda Rama Swarajyalakshmi vs Posina Sathyanarayana And Another on 2 November, 1998
Equivalent citations: 1999(1)ALD210, 1999(1)ALT222
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER
1. This Civil Revision Petition is filed by the first defendant being aggrieved by the order dated 7-8-1997 passed in IA No.1299 of 1997 in OS No.84 of 1991 on the file of the Subordinate Judge, Kowur. By the impugned order, the petition filed by the first defendant for sending Ex.A1 -Agreement of Sale dated 13-3-1991 to the handwriting expert has been rejected by the Court below.
2. The learned Counsel for the petitioner contended that Ex.A1 - Agreement of Sale is the suit agreement on the basis of which the first respondent - plaintiff has filed the present suit for specific performance. He further contended that in the written statement filed by the defendants, the said agreement of sale has been denied as a forged document, but the Court below has erred in refusing to exercise the jurisdiction vested in it. As such, the impugned order is liable to be set aside. He further submitted that since the handwriting expert assertains whether the signatures on Ex.A1 is that of the petitioner or not on scientific basis such evidence is necessary and useful. On the other hand, the learned Counsel appearing for the 1st respondent-plaintiff supported the impugned order. He contended that the Court below has rightly dismissed the petition filed by the petitioner for sending the document to the handwriting expert. The Court below rightly observed that the present petition is filed at a belated stage only to protract the proceedings, He further stated that if is for the plaintiff to prove the document and to prove the same the plaintiff has already examined the attestor and scribe of the document. He submitted that at any rate, the impugned order cannot be interfered with under Section 115 of the Code of Civil Procedure, in view of the fact that the impugned order cannot be said to be a 'case decided'. Moreover, under Section 45 of the Evidence Act, the opinion of the handwriting expert is only an opinion and cannot be conclusive proof and therefore, the Court below rightly refused the petition filed by the petitioner.
3. From going through the impugned order and also from the contentions urged on both sides, I find that few facts are admitted.
4. It is an admitted fact that the agreement of sale pleaded by the plaintiff is denied by the defendants as a forged document. The first defendant contended that he has not executed the said agreement. It is also a fact that earlier the defendants were placed ex parte on 21 -4-1993 and the petition filed by the defendants for setting aside the ex parts order was allowed on 24-6-1994 on payment of costs. Thereafter, the defendants have filed the written statement on 6-7-1994. It is also not disputed on either side that on 30-10-1997 the trial in the suit started and the plaintiff has examined his witnesses. Now the petitioner has to examine her witnesses. She filed the present IA on 15-7-1997.
5. The learned Counsel for the petitioner contended that it is only after the plaintiff s witnesses asserted that the signature on Ex.A1 is that of the first defendant, the defendants now sought for sending the same to handwriting expert since according to the first defendant the signature found on Ex.A1 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 more 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 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 v. F.J. Dillon, AIR 1964 SC 407, Baldevdas v. Filmistan Distributors, , and Gurdev Singh and others v. Mehnga Ram and another, 1997 (5) ALD (SCSN) 5, in support of his contention. From a reading of judgment in S.S. Khanna 's case (supra), 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 Section 115, CPC specifically incorporated the principle laid down by the Supreme Court in the above judgment. But, what is to be seen is whether the rights of the petitioner would be affected by the impugned order or not. In my opinion, the rights of the petitioner would be affected if the document in question is not sent to the handwriting expert since to that extent the evidence which she seeks to lead would be denied to him. In fact, in Gurdev Singh's case (supra), the Honorable Supreme Court found fault with the order of the High Court in setting aside the order of the appellate Court directing to send the document for the opinion of the handwriting expert and the Supreme Court further observed that the order of the appellate Court should not have been set aside by the High Court.
6. In view of the above, position of law I think it appropriate to allow the revision petition. The other judgment relied upon by the learned Counsel for the respondent in Baldevdas's case (supra) does not apply to the facts of this case since that was a case in which the impugned order was one overruling the objections to certain question put to the witness and in those circumstances the Honorable Supreme Court held that it was not a case decided. Therefore, the said case can be distinguished from the facts of this case. At any rate, according to me, if the impugned order is allowed to stand, it would result in failure of justice or it would cause irreperable injury to the petitioner. So far as the belatedness is concerned, I think that ends of justice would be met if I impose costs on the petitioner with a further direction that the other evidence shall go on meanwhile.
7. For the above reasons, I allow the revision petition and set aside the impugned order, on the petitioner paying costs of Rs. 1,000/- to the first respondent-plaintiff within a period of two weeks from today. IA No.1229 of 1997 filed in OS No.84 of 1991 is hereby allowed permitting the petitioner to send the document to the handwriting expert. Meanwhile, the petitioner shall examine her witnesses on her side without waiting for the opinion of the handwriting expert. In case the petitioner fails to pay Rs. 1,000/- within a period of two weeks from today, the petition filed by the petitioner in IA No.1229 of 1997 in OS No.84 of 1991 is deemed to have been rejected by this Court.