Andhra Pradesh High Court - Amravati
Tadi Suryanarayana Reddy vs Mylavarapu Rama Venkata Krishna ... on 19 August, 2019
Author: U.Durga Prasad Rao
Bench: U. Durga Prasad Rao
HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
CIVIL REVISION PETITION No.2124 OF 2019
ORDER:
The challenge in the CRP at the instance of petitioner/plaintiff is the order dated 02.07.2019 in I.A.No.566 of 2019 in O.S.No.163 of 2013 passed by learned V Additional District Judge, Rajamahendravaram, where under leaned judge dismissed the petition filed by the plaintiff under Section 151 of CPC to reopen the matter for the purpose of summoning one Narkedimilli Ramagiri of Tanuku, who is the GPA holder of one Smt.Gudimetla Satya Prabha to produce certain registered documents in his possession which contain the signatures of the defendant to send to another expert for comparison with the signature of defendant in Ex.A1 pronote .
2. The parties in the present CRP are referred as they are arrayed in the suit.
3. The factual matrix of the case is thus:
(a) The plaintiff filed O.S.No.162/2013 on the file of V Additional District Judge, Rajamahendravaram, against defendant for realization of Rs.34,26,667/- on the strength of pronote dated 08.08.2010 said to be executed by the defendant in his favour. The defendant in his written statement inter alia contends that he never borrowed amount from the plaintiff and executed suit promissory note and the same is a forged and fabricated document. A trial went on it appears earlier the 2 defendant filed I.A.No.2079 of 2017 to send Ex.A1 pronote to handwriting expert. The plaintiff filed counter contending that the defendant did not file any contemporaneous signature or public documents such as registered documents containing the admitted signatures of the defendant. It appears he also stated in his counter that if the court was inclined to allow the petitioner, it may send vakalat suit summons, postal acknowledgment card and written statement containing the signatures of the defendant to the expert.
Accordingly, the suit pronote and aforesaid documents were sent to expert and he submitted his report. The plaintiff cross-examined the expert and when the suit was posted for arguments, at that stage, the plaintiff filed I.A.No.566 of 2019 to reopen the suit for the purpose of summoning certain registered documents which purport to contain the admitted signatures of the defendant much prior to the date of pronote and the suit to refer them along with Ex.A1 to another expert.
(b) The defendant filed counter and opposed the petition contending that while the previous expert was appointed at instance of the defendant, the plaintiff had ample opportunity to refer the documents containing the admitted signatures of the defendant to the previous expert but he did not avail the said opportunity. Therefore, the expert submitted his report with the aid of documents referred to him and at that stage also, the plaintiff did not file his objections against the opinion rendered by the handwriting expert. The plaintiff 3 cross-examined the expert at length but could not elicit any material facts to discredit his opinion. In that view of the matter, the plaintiff at this belated stage of arguments cannot seek for appointment of a second expert. He further contended that without rejecting the report of the earlier expert on valid grounds, the court cannot appoint second expert. He thus prayed to dismiss the petition.
(c) The impugned order shows, the trial court having agreed with the contention of the defendant dismissed the petition holding that in I.A.No.2027 of 2019, the plaintiff did not take any objection and stated that if the petition was to be allowed the court must send the vakalat, written statement, suit summons etc which contain the signatures of the defendant to the expert and accordingly, the expert petition was allowed and he remitted his opinion and the plaintiff cross-examined him and therefore, at this belated stage, he cannot file to reopen the matter to issue summons to third party witness and send the pronote to another handwriting expert.
Hence, the CRP.
4. Heard arguments of learned counsel for petitioner Sri T.V.Jaggi Reddy and learned counsel for respondent Sri M.V.Suresh.
5. Fulminating the order of the trial court, learned counsel for petitioner Sri T.V.Jaggi Reddy would argue that in the earlier expert petition the trial court obtained the signatures of the defendant in open court and referred them to the expert for comparison with the 4 signature available on Ex.A1 except that the court has not directed the defendant to produce the documents containing the admitted signatures of the defendant contemporaneous to the suit pronote. Learned counsel would vehemently argued that the defendant is in the habit of signing in different styles in various documents and therefore, no useful purpose would be served by obtaining his signatures in open court to refer them to the expert as there was every possibility of defendant deliberately signing in a different manner than that of his signature in Ex.A1. Therefore, the plaintiff was constrained to file a reopen petition to summon the registered documents containing the admitted signatures of the defendant contemporaneous to suit document. He would finally submit that the suit is laid for a heavy amount and in the interest of justice plaintiff may be given an opportunity to establish his case.
6. Per contra, learned counsel for the defendant Sri M.V.Suresh would argue that the CRP has no merits inasmuch as the reopen petition was filed belatedly at the time of arguments; during the earlier expert petition, the plaintiff did not oppose when the signatures of the defendant were taken in the open court to refer to the expert; the plaintiff had, at length, cross-examined the expert but could not elicit any valid point and therefore, the previous expert opinion became final and in that view, without nullifying the same, a second expert cannot be appointed without any valid reasons. He would submit that 5 considering all these aspects, the trial court rightly dismissed the petition.
7. The points for consideration are:
(1) Whether a second expert can be appointed without setting aside the opinion of the earlier expert and if so, under what parameters?
(2) Whether delay is a ground to reject expert petition?
(3) To what relief?
8. Points 1 and 2:
I have given my anxious consideration to the above respective arguments. Facts uncontroverted would reveal that the plaintiff laid the suit on the strength of a pronote said to be executed by the defendant which was stoutly remonstrated by the defendant as forged.
Earlier, the defendant filed I.A.No.2079 of 2017 to refer Ex.A1 to handwriting expert which was ultimately allowed and it appears, the trial court obtained the signatures of the defendant in open court and referred them along with the signatures contained in vakalat, written statement, summons etc., for comparison with Ex.A1 and expert submitted his report and he was cross-examined by the plaintiff.
Now, the submission of plaintiff is that the defendant is in the habit of signing in different styles in various documents and since his signatures obtained in open court and the signatures contained on the vakalat and written statement etc. were all generated subsequent to the 6 filing of the suit, there was every possibility for him to deliberately sign in a different manner than in Ex.A1 pronote and hence, the expert's opinion would not reveal the true state of affairs. Therefore, it is highly essential to appoint another expert and refer to him the admitted signatures of the defendant contained in some registered documents which are in possession of one Narkedimilli Ramagiri of Tanuku, who is the GPA holder of one Smt.Gudimetla Satya Prabha.
Where as the contention of the defendant is that the earlier expert opinion attained finality and without setting aside the same, a second expert cannot be engaged at this belated stage.
9. The law on appointment of second expert is no more res integra. In M.Ramesh Babu v. M.Sreedhar1, a division bench of this High Court has dealt with the issue as to when the opinion of second expert can be sought for without setting aside the earlier report. In its exhaustive order, after referring various judgments, the division bench held thus:
"46. The expert opinion cannot be and should not be considered as gospel truth. Error is human. However high one person may be, it does not mean that he cannot commit any mistake. The evidence has to be appreciated without any prejudice. The Courts should not be influenced by the reputation, name and fame or influence of a witness. As far as the Courts are concerned, a witness is a witness. His evidence has to be considered on the touch stone of probabilities and circumstances and when the evidence is put to critical examination with rational outlook it may reveal whether 1 2009 (5) ALD 187 = MANU/AP/0183/2009 7 such witness is a reliable witness or not. Then the Court would form an opinion whether to accept such evidence in toto or to reject the same or to accept it in part and reject the same in part.
47. X X X
48. X X X
49. There are basic differences in the methodology adopted by the experts. Even an expert may commit a mistake. When a mistake is committed by an expert, the other side Advocate, while cross- examining the expert, may point out those errors. But, some times, it may not be possible for the advocates to elicit those errors in the cross-examination due to lack of expertise knowledge. In such circumstances, great injustice may be done to the parties. Even the Court may not be in a position to detect those errors committed by an expert. It appears that another expert who has special knowledge in the subject may be in a position to point out those errors. Even, in any unfortunate situation, if an expert is won over by the party, then such a situation could be saved by obtaining opinion of another expert. Then the Court will have the advantage of looking into the reports of both the experts in such a situation.
50. It is argued that we will be opening Pandora's box if the parties are allowed to seek second opinion. As we have observed earlier it is the duty of the Court to ascertain the fact. The goal of the Court should be to find out the truth and for the purpose of arriving at a truth we may have to proceed a longer distance in a particular case. The procedural aspects should not come in the way of finding the truth. The procedural law should always be subvergent to the substantive law. Therefore, seeking the opinion of a second expert in such cases may be necessary for rendering complete justice. As far as Sections 45 and 46 of the Indian Evidence Act are concerned, the same is undoubtedly a part of substantive law and whereas the provisions under Order XXVI of CPC appear to be procedural.
51. Therefore, we are of the view that there is no bar to take the opinion of a second expert without setting aside the earlier report. However, it is not desirable to appoint second commissioner or to 8 refer to the second expert without there being any valid reasons. There should be special circumstances and the Court must record its reasons for sending the document to the second expert or for appointing a second commissioner. If the circumstances warrant, the Court may appoint second commissioner or to seek the opinion of a second expert in the light of the language of Order XXVI Rule 10-A of CPC read with Section 45 of the Indian Evidence Act. The salient features, essentials and distinction between Order XXVI Rule 9 and Order XXVI Rule 10-A of CPC read with Section 45 of the Indian Evidence Act always to be kept in mind. We are in complete agreement with the opinion of the learned Judge in Korvi Rosaiah's v. Mitta Srinivasa Reddy2. Moreover, we are of the view that the doors of the trial Court shall not be shut at the initial stage. The parties must be given full opportunity to adduce evidence and the other side must be given the same opportunity to adduce rebuttal evidence.
52. In the cases arising out of Prohibition and Excise Act, if the accused is aggrieved with the opinion of the expert then he will be given an opportunity to send another sample for the second opinion. Therefore, in cases where the Court is of the opinion that the report of the expert is not satisfactory, where the expert has not followed the required procedure, where the findings of the expert appears to be prima facie incorrect, where there is an error on the face of the record, where it appears that the commissioner or expert had acted in a partisan manner and where the deficiency in the report cannot be completed by the same Commissioner or expert or where the Court feels that referring the matter to second Commissioner would be useful for better appreciation of evidence and for reaching just conclusions, the Court may refer the matter to second commissioner or to the second expert for his opinion, even without setting aside the earlier report or opinion."2
MANU/AP/0138/2006 = 2006 (3) ALD 211 9
10. Thus the division bench extrapolated that the second expert can be engaged without setting aside the earlier report but, however, on valid reasons such as the report of the earlier expert was not satisfactory; the expert had not followed the required procedure; where the findings of the expert appears to be prima facie incorrect, where there is an error on the face of the record; where the commissioner or expert had acted in a partisan manner; where the deficiency in the report cannot be completed by the same commissioner or expert; where the court feels that referring the matter to second commissioner would be useful for better appreciation of evidence and for reaching just conclusions.
11. When the case on hand is vetted on the touchstone of the above jurimetrical jurisprudence it would appear that the earlier experts opinion prima facie may not be correct, not for the reason of his technical inefficiency but, the specimen signatures of the defendant were obtained in the open court long after the date of Ex.A1 pronote and therefore, the possibility of his deliberately signing in a different fashion cannot be obviated. The same reason applies to the signatures of the defendant on vakalat and written statement also. Therefore, such specimen signatures of the defendant, in the considered view of this Court, would not serve the true purpose of referring Ex.A1 to the expert. When quest for truth and for that matter absolute truth is the aim of the court, no one should be allowed to divert its path 10 deliberately. In Kunamneni Nageswara Rao v. Kunamneni Dasaradharamaiah and Ors.3 , a learned Judge of this Court has come across a situation where the plaintiff himself in that case made a request to send vakalat and written statement containing the signatures of the first defendant along with contract of sale to the expert for comparison. In that context, learned Judge expressed his views which are germane for consideration in the present context. He observed:
"7. It is to be noted at the outset that this is not a case where the first defendant having filed his vakalat and written statement is making a request to send the said documents to an expert for comparing the signatures thereon with the signatures said to be of him on the suit document which he is disputing. In this case, the plaintiff is making a request to send the vakalat and written statement containing the signatures of the first defendant and also the contract of sale said to be containing the signature/s of the first defendant to an expert for inter se comparison and furnishing a report to the Court. If the first defendant files his vakalat and written statement and makes a request to send the said documents to an expert for comparison of the signatures thereon with the disputed signatures of his on the suit documents, the plaintiff may have reason to object for considering such signatures on the vakalat and written statement of the first defendant as admitted and/or standard signatures, if the plaintiff has any apprehension that the first defendant might have signed vakalat and written statement after designedly disguising or altering his signatures with an intention to defeat the claim of the plaintiff. In such a case, the Court may be slow in accepting the request of the first defendant and may call the first defendant to produce documents of authentic nature, if any, containing his signatures, or may even refuse to exercise the discretion in favour of the first defendant, 3 2018 (5) ALD 1 = MANU/AP/0305/2018 11 who makes the request for seeking an opinion of the expert, keeping in view the apprehension of the plaintiff which may sound reasonable and appear well founded in the facts & circumstances of the case."
12. Thus, what is relevant to be noted is the signatures made by the defendant on some documents subsequent to the document in question, generally should not be referred to the expert for comparison as there will be a tendency to sign in a different fashion. In the instance case, it is the contention of plaintiff that the defendant is in the habit of signing in different styles in various documents. It is true that in the previous expert's petition, he might not have taken such an objection but on that ground the possibility of defendant signing in a different manner before the court and in documents like vakalat and written statement cannot be ruled out. Therefore, in the view of this Court, the earlier expert opinion does not reflect the truth. Therefore, the plaintiff is legally justified in seeking the second expert's opinion by referring certain documents which contain the signatures of the defendant made long prior to the Ex.A1.
13. So far as delay is concerned, a division of this Court in Janachaitanya Housing Limited v. Divya Financiers4 has observed thus:
"9. For the reasons aforementioned, we answer the reference thus: "No time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or 4 AIR 2008 AP 163 = MANU/AP/0137/2008 12 writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the court; for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of the each case."
In the light of the above jurisprudence, the trial court was not correct in dismissing the petition to reopen the matter for summoning certain documents which contain the signatures of the defendant for referring to a second expert.
14. Accordingly, the CRP is allowed setting aside the impugned order and consequently, I.A.No.566 of 2019 in O.S.No.163 of 2013 is allowed and the trial court is directed to reopen the matter for the purpose of summoning original documents sought for by the plaintiff. No costs.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J 19.08.2019 Note: LR copy to be marked.
B/o.SS