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2006 DIGILAW 690 (AP)

Mir Khairudhin v. K. Somi Reddy

2006-06-21

V.V.S.RAO

body2006
ORDER The petitioner is the plaintiff in O.S.No.73 of 2006 on the file of the Court of the Junior Civil Judge, Ranga Reddy District, at Medchal. He allegedly obtained three Tamarind trees situated in premises bearing Nos.15 to 19, Block 9, for a period of four years on 01-02-2006. He alleged that when he was plucking the tamarind, there was interference from the defendants (respondents herein). Therefore, he filed the suit, being O.S.No.73 of 2006. In his interlocutory application, being I.A.No.255 of 2006, the learned trial Judge passed an order of ad interim injunction on 13-02-2006. The defendants entered appearance and filed their counters. After hearing the arguments, the orders in I.A No.255 of 2006 were reserved on 06-03-2qp6. At that stage, the petitioner herein filed I. A. No.527 of 2006 under Section 45 and 72 of the Indian Evidence Act, 1872 (for short the Act), read with Section 151 of the Code of Civil Procedure, 1908 (CPC). He prayed to reopen the application, being I.A.No.255 of 2006, for the purpose of sending the two documents, which were filed in O.S.No.162 of 1994 and to send those two documents to the handwriting expert namely the Forensic Science Laboratory, Hyderabad. The application was opposed, and after hearing both the parties, the learned trial Judge dismissed the application on 27-03-2006. Aggrieved by the same, the present Civil Revision Petition is filed. 2. The learned Counsel for the petitioner submits that the petitioners lessor, Prakash, purchased the property from Harban Prasad through his General Power of Attorney holder, B. Krishna, that as the respondents are disputing the signature of B. Krishna, it would be in the interests of justice to summon the two documents, which were signed by B. Krishna. Learned Counsel would urge that such power inheres in the trial Court and the non-exercise of the same has resulted in the error apparent on the face of the record. These submissions are refuted by the learned. Counsel for the respondents. 3. While dismissing the application, being I.A.No.527 of 2006, the learned Junior Civil Judge, observed as, under. I verified the contentions of both parties. This petitioner seeking to send the documents in O.S.No.162 of 1994 to the expert but the petitioner did not mention whether the said suit is disposed or pending and the petitioner did not mention the parties in that suit. I verified the contentions of both parties. This petitioner seeking to send the documents in O.S.No.162 of 1994 to the expert but the petitioner did not mention whether the said suit is disposed or pending and the petitioner did not mention the parties in that suit. It is not possible to send the documents filed in another suit to send to the expert for opinion, as the documents are not in this suit and it is not possible to decide at this stage as the documents are not in this suit. The petitioner averring that he obtained certified copy of the agreement of sale entered by Harban prasad through his GPA holder B. Krishna. Merely the respondents disputed the signature of B. Krishna in the said document, it is not necessary to send it to the expert and the respondent submitting that the orders in I.A. i.e., in injunction petition are necessary to be passed and this is only interim application stage and the suit is not coming for trial. The documents are not in this suit, without seeing the documents or without looking into the documents, it is not possible to send the documents to the expert. Hence the petition is dismissed as discussed by me in supra. 4. After reading the above, this Court does not find any justification for summoning the documents in O.S.No.162 of 1994. On reading Section 45 of the Act, it becomes clear that the opinion of an expert is relevant fact when the Court has to form an opinion upon an issue, interalia, as to the identity of handwriting in a matter pending before it. This view is also supported by a reference to Rule 10-A of Order XXVI of CPC, which reads as under. 1 Q-A. Commission for scientific investigation:- (1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of Rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this Rule as they apply in relation to a Commissioner appointed under Rule. 5. When the Legislature uses tl:1e words "...any scientific investigation which cannot...be conveniently conducted before the Court..." it only means that when a document is already presented to the Court, whether such document is marked or not as an exhibit, then only the Court gets jurisdiction c to send it to a handwriting expert. The power. 1 under Order XXVI Rule 10-A of CPC read with f Section 45 of the Act is not available to send t the documents which are filed in another suit to handwriting expert, even if other suit is pending before the same Court before which such application is moved. 6. The Civil Revision Petition is misconceived and is accordingly dismissed, as the lower Court order does not suffer from any error. No costs.