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2001 DIGILAW 1267 (AP)

Mithi Reddi Ramu v. Majji Suryanarayana

2001-10-12

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) HEARD the Counsel for revision petitioner Sri D. Ramalinga Swaniy and also the Counsel for the respondent Sri H. S, Dora. ( 2 ) THE revision is filed as against the Judgment in SC No. 79/98 on the file of Senior Civil Judge, Rajam under Section 25 of the Small Cause Courts Act. The unsuccessful defendant is the revision petitioner. The respondent is the plaintiff. ( 3 ) FOR the purpose of convenience the parties will be referred to as arrayed in the suit i. e. , plaintiff and defendant . ( 4 ) T he plaintiff had instituted the suit SC No. 79/98 on the file of Senior Civil Judge, Rajam on the ground that on 14-2-1996 the defendant borrowed a sum of Rs. 7,500/- for his family expenses and for discharging the sundry debts from the plaintiff and executed a promissory note on the same day in favour of the plaintiff agreeing to repay the said amount with interest at 24% per annum and inspite of repeated demands, the defendant failed to discharge the said amount and in order to defeat the amount due on the said promissory note the defendant filed SC No. 27/98 against the plaintiff with false and frivolous allegations on the strength of a forged promissory note. The defendant filed a written statement denying the very execution of the promissory note and taking a stand that it is a rank forgery. The defendant also pleaded that as a counter blast to SC No. 27/98 the plaintiff had created the suit promissory note with a view to wreak vengeance against him. The plaintiff examined himself as PW1 and also examined PW2 and PW3 and Ex. A1 was marked and the expert was examined as DW1 and the defendant had examined himself as DW2 and Exs. Bl to B6 and Exs. Cl to C9 were marked. The Court below on appreciation of the oral and documentary evidence came to the conclusion that the opinion of the expert Ex. C3 is only opinion evidence and in view of the evidence of PW2 and PW3 supporting the evidence of PW1 it was held that Ex. Al was proved and hence ultimately had decreed the suit with costs. The Court below on appreciation of the oral and documentary evidence came to the conclusion that the opinion of the expert Ex. C3 is only opinion evidence and in view of the evidence of PW2 and PW3 supporting the evidence of PW1 it was held that Ex. Al was proved and hence ultimately had decreed the suit with costs. ( 5 ) SRI Ramalinga Swamy, the learned Counsel for the revision petitioner had streneously contended that it is a peculiar case where the suit OS No. 79/98 was filed on 26-12-1998 and the revision petitioner had instituted the suit SC No. 27/ 98 on 23-6-1998. The learned Counsel also had pointed out that after issuing notice and inviting reply in SC No. 27/98 the respondent herein i. e. , plaintiff in the suit had thought of this litigation and these aspects were not considered by the Court below at all. The learned Counsel also had submitted that the evidence of DW1 and also Exs. Cl to C9 clearly got to show that the suit promissory note is a forged document. Apart from it, there are attempts made by PW2, the scribe of promissory note and PW3, the attestor of promissory note. PW3 had stated that his brother married the sister of plaintiff s father. PW2 admitted that he stood as surety in criminal cases and the accused paid Rs. 25/- or Rs. 50/-as expenses for giving surety. No doubt, these aspects also had been discussed by the Court below, but had ignored these discrepancies mainly on the ground that the expert s opinion marked as Ex. C3 is only opinion evidence which cannot prevail over the direct evidence of PW2 and PW3 supporting the evidence of PW1, the plaintiff in the suit. ( 6 ) SRI H. S. Dora, the learned Counsel for the respondent/plaintiff in the suit had contended that in the facts and circumstances of the case it can be that both the transactions are genuine and merely because the suit is decreed as against him in the other matter it does not mean that the respondent/plaintiff in this present case is unable to prove his claim. The learned Counsel also had drawn my attention to paragraphs 7, 8, 9, 10, 11, 12 and 13 of the impugned Judgment where there is detailed discussion and reasons recorded why the Court was inclined to believe Ex. A1 transaction. The learned Counsel also had drawn my attention to paragraphs 7, 8, 9, 10, 11, 12 and 13 of the impugned Judgment where there is detailed discussion and reasons recorded why the Court was inclined to believe Ex. A1 transaction. The learned Counsel also had submitted that absolutely there is no illegality in the impugned Judgment and hence the civil revision petition is liable to be dismissed. ( 7 ) IT is no doubt that the scope of revisional jurisdiction under Section 22 of the Provincial Small Causes Courts Act is very limited. But here the series of dates and events clearly go to show that the parties have been fighting this litigation with a view to overreach each other. In fact, while deciding CRP No. 2076/99, I had already observed how the Revision Petitioner in this suit was able to prove his claim in the said matter. In the present dispute, the revision petitioner had been very cautious and had taken the disputed documents to be examined by an expert and the opinion of the expert was marked as Ex. C3. Exs. Cl and C2 are the specimen signatures, Exs. C4 to C9 are the photos and negatives marked through DW1. Apart from the oral evidence of the expert as DW1 and also Exs. Cl to C9 there are certain admissions made by PW2 and PW3 which go to show that they are interested witnesses in supporting the case of PW1. The Court below having observed so at paragraph 13 ultimately came to the conclusion that these are all discrepancies which can be ignored. The discrepancies in the evidence of witnesses are to be always appreciated in the background of the facts and circumstances of each case. Here is a case where the revision petitioner had approached the Court first. The respondent is conscious of the same and subsequent thereto all these events had happened. Apart from this, as far as the opinion of expert is concerned in Mohammed Sultan v. Miss. Nawaziunnisa, 1997 (3) ALD 631 - 1997 (3) ALT 183 , it was held as follows:-"it is well settled that all though it is permissible for the Courts to compare the handwriting it is a general and hazardous test and it should not be resorted to except in clearest cases without the aid of experts". Nawaziunnisa, 1997 (3) ALD 631 - 1997 (3) ALT 183 , it was held as follows:-"it is well settled that all though it is permissible for the Courts to compare the handwriting it is a general and hazardous test and it should not be resorted to except in clearest cases without the aid of experts". In Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee, AIR 1964 SC 529 , the apex Court held that the expert s evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence and before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In Ram Narayan v. Slate of Uttar Pradesh, AIR 1973 SC 2200 , it was held as follows:"the opinion of a handwriting expert given in evidence is no less fallible than any other expert evidence. But such opinion is worthy of acceptance if there is internal or external evidence relating to the writing in question supporting the expert s view. The question in each case falls for determination in the Court s appreciation of evidence". In Vppu Jhansi Lakshmi Bai v. J. Venkateswara Rao, 1993 (2) LS 190 , it was held as follows:-"the opinion of an expert is relevant under Section 45 of the Indian Evidence Act. It is an accepted principle of law that the science of handwriting is not an accurate one and there is likelihood of errors creeping in, when a handwriting expert gives his evidence and therefore, such evidence should be received with caution". ( 8 ) I am conscious of the limitations in appreciating and relying upon the opinion of an expert. But here is a peculiar case where there are several discrepancies in the evidence of both PW2 and PW3. The evidence of DW1 coupled with Ex. C3 clearly establish to the effect that the promissory note is not a genuine one. This evidence is well corroborated by the defendant in the suit who was examined as DW2 and who had explained the circumstances under which the said promissory note was brought into existence. On appreciation of over-all facts and circumstances, I am of the opinion that the Court below had not made the impugned Judgment in accordance with law in the light of the peculiar aspects discussed supra. On appreciation of over-all facts and circumstances, I am of the opinion that the Court below had not made the impugned Judgment in accordance with law in the light of the peculiar aspects discussed supra. Hence, I am inclined to arrive at the conclusion that in view of the clear opinion expressed by the expert supported by the party himself as DW2 and also taking into consideration all the circumstances connected with the present case. 1 am of the considered opinion that the impugned Judgment is not made in accordance with law and is liable to be interferred with under Section 25 of the Provincial Small Causes Courts Act. ( 9 ) ACCORDINGLY, the civil revision petition is allowed, with costs.