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2005 DIGILAW 528 (AP)

Nookala Sridevi v. D. Krishnarjuna Rao

2005-06-20

GOPALA KRISHNA TAMADA

body2005
( 1 ) THE petitioner, who was the second defendant in OS No. 228 of 1996 and was unsuccessful in IA No. 642 of 2002, preferred this revision stating that the order of the Court below is a patent irregularity. ( 2 ) THE brief facts are that the first respondent basing on an agreement of sale alleged to have been executed on 9-8-1986 filed the above suit for specific performance of the agreement of sale against the defendants therein. The suit is being contested by the defendants. During the course of trial, the plaintiff i. e. the first respondent herein came forward with a petition filed under Order XIII Rules 1 and 2 cpc read with Section 151 CPC and rule 128 of Civil Rules of Practice to call for the original vakalath and written statement of one late Nukala Jagannadha reddy from the office record of A. S. No. 1439 of 1999 on the file of this Court for comparison of the signatures thereon with the signatures on Ex. A. 1 filed in the present suit. ( 3 ) ACCORDING to the first respondent, the said Nukala Jagannadha Reddy is none other than the father of the petitioner herein and the second respondent executed the alleged agreement of sale on 9-8-1986 and as he is no more, his admitted signatures in the original vakalath and written statement from the record of A. S. No. 1439 of 1999 are required. The said petition was opposed by the petitioner herein. But, however, the Court below held that the admitted signatures of the said N. Jagannadha reddy can be sent to finger print expert to come to a just conclusion as to whether the signatures on the agreement of sale dated 9-8-1986 and the signatures on the original vakalath and written statement in a. S. No. 1439 of 1999 are one and the same. As against the said order, the second defendant, as already stated, filed the present revision. ( 4 ) HEARD both the Counsel. ( 5 ) MR. As against the said order, the second defendant, as already stated, filed the present revision. ( 4 ) HEARD both the Counsel. ( 5 ) MR. B. Viswanadha Reddy, learned Counsel for the petitioner strenuously contended before me that the Court below instead of summoning the documents and referring the same to the finger print expert, ought to have examined the said documents to come to a conclusion as to whether the signatures of the said n. Jagannadha Reddy in the original vakalath and written statement from the record of a. S. No. 1439 of 1999 and the signatures in the agreement of sale dated 9-8-1986 are one and the same or not. He has drawn my attention to Sections 45 and 73 of the indian Evidence Act, 1872 and also to the provision under Order XIII Rules 1 and 2 cpc, which deal with the production, impounding and return of documents. ( 6 ) THE learned Counsel appearing for the respondents submitted that mere is no law which says that the signature should first be verified by the Court and if it is not being satisfied then only, the same shall be REFERRED TO a finger print expert for his opinion. ( 7 ) IN the light of the said submissions, the point that falls for consideration is as to whether when a petition for sending a particular document to an expert is filed and allowed, is it necessary for the Court below to summon the document, examine itself or it can send the said document to an expert without examining? ( 8 ) SECTION 45 of the Indian Evidence act, 1872 deals with opinion of experts and it reads thus:"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 foreign law, science or art, or in questions as to identity of handwriting or finger-impressions are relevant facts. " ( 9 ) SECTION 73 of the said Act deals with comparison of signature, writing or seal with others admitted or proved. " ( 9 ) SECTION 73 of the said Act deals with comparison of signature, writing or seal with others admitted or proved. ( 10 ) FROM the said provisions of law, it cannot be held that the Court is duty bound to summon the particular document and look into the same at the first instance to arrive at a conclusion and if it is not being satisfied or unable to come to a conclusion, then only, the said document shall be REFERRED TO a finger print expert. In fact, from Section 45 of the Indian evidence Act, 1872, this Court is of the view that whenever a petition for sending a document to an expert is filed, it is always desirable that if the Court being satisfied that the said document requires the opinion of an expert, it can send the same to an expert instead of looking it into the document in arriving at a conclusion. In fact, the comparison of a signature is the job of an expert and the Courts cannot come to a just conclusion. No doubt, the court for its satisfaction, may look into a document for comparison and may come to a conclusion as to whether it tallies with the signatures or not but it does not mean that the Court should first look into the document, give its opinion and if it is not satisfied, then only, the said document shall be REFERRED TO an expert. In the light of the above, the submissions made by Mr. B. Viswanatha reddy, learned Counsel for the petitioner cannot be accepted. ( 11 ) FURTHER, in a judgment reported in medikonda Rama Swarajyalakshmi v. Posina Sathyanarayana and another, 1999 (1) ALD 210 , the learned Single Judge has taken the view that normally the Courts should take the assistance of the handwriting expert. The relevant portion of the judgment reads as under:"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. 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" ( 12 ) HAD the learned Counsel opposed the summoning of the said documents, it is altogether a different matter. He has no grievance in summoning the said documents but the only grievance is that the Court ought not to have sent it to the expert straightaway. In my considered view, it does not hold water. ( 13 ) HENCE, I find no merit in the revision and accordingly, the same is dismissed. As the suit is of the year 1996, the Court below is hereby directed to give utmost importance to the suit and dispose of the same at the earliest, preferably, within a period of six months from the date of receipt of a copy of the order.