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2009 DIGILAW 510 (AP)

J. L. Babu v. S. Gowri Shankar

2009-07-29

L.NARASIMHA REDDY

body2009
Judgment :- The petitioner filed O.S.No.1401 of 2007 in the Court of V Senior Civil Judge, City Civil Court, Hyderabad, against the respondents, for the relief of specific performance of an agreement of sale, dated 26.07.2004. It was pleaded that the respondents executed the agreement of sale and have received part of sale consideration under receipts, dated 26.07.2004 and 27.07.2004. The respondents filed a written statement, disputing the genuineness of the agreement of sale as well as receipts. The 1st respondent filed I.A.No.1011 of 2008 under Section 45 of the Evidence Act (for short 'the Act'), read with Section 151 C.P.C., with a prayer to send the agreement of sale and receipts, referred to above, for the opinion of a handwriting expert. The petitioner opposed the application, stating that it is too premature to send the documents for opinion of the expert, at that stage. It was contended that before sending the document, the Court itself may undertake an exercise under Section 73 of the Act. It was also urged that the comparison of signature, in relation to the disputed document, has to be considered, only after the oral and documentary evidence is adduced. Through its order, dated 23.03.2009, the trial Court allowed the application. Hence, this revision. Sri R.A.Achuthanand, learned counsel for the petitioner, submits that it is for his client to prove the documents to the satisfaction of the Court. He contends that, if clinching oral and documentary evidence is adduced to prove the documents, the necessity to send the same for opinion of an expert may not arise. He further contends that, the question, as to whether the opinion of an expert is needed; can be considered, only after the doubt about the genuinity thereof subsists, even after the evidence is adduced and an exercise is undertaken by the trial Court under Section 73 of the Act, and viewed from this angle, the application filed by the respondents is premature. Sri P.Venu Gopal, learned counsel for the 1st respondent, on the other hand, submits that his client has flatly denied the execution of the agreement of sale and receipts, and it is in the interests of all that the opinion of an expert is readily available by the time the trial commenced. The burden to prove the agreement of sale and receipts relied upon by the petitioner, squarely rests upon him. The burden to prove the agreement of sale and receipts relied upon by the petitioner, squarely rests upon him. The respondents no doubt have denied the execution of the documents. That denial would only lead to framing of an issue, touching upon the same. Sending of a document under Section 45 of the Act, for opinion of an expert, is a step in the direction of proof. The exercise as regards proof of the document would only start with the commencement of trial. The C.P.C., as well as the Evidence Act enshrine the principles, that are relevant in this regard, touching upon the burden, the priority to be followed in the context of adducing evidence etc. When the burden squarely rests upon the petitioner to prove the documents relied upon by him, it could, not at all be the genuine concern of the respondents, to initiate steps for disproving it. In a given case, at the stage of examination of the concerned witnesses, on behalf of the plaintiffs themselves, it can be elicited that the signature on a particular document is not genuine. In contrast, during the course of evidence by the defendants, the concerned witness may admit the signature on a document, notwithstanding the denial of the same in the written statement. Therefore, the actual stand of the parties would emerge, only after the witnesses, who assert about the genuinity of the document, or those who signed it, depose before the Court. Taking of any steps under Section 45 of the Act, before that stage, is prone to lead to several complications. Another aspect of the matter is that, the Court itself is conferred with the power under Section 73 of the Act to undertake comparison, by itself. If the features of writing and signature on the documents are so glaring, that the Court can form an opinion by itself either way, further exercise under Section 45 of the Act, may virtually become unnecessary or futile. Therefore, the order passed by the trial Court allowing an application under Section 45 of the Act, which was filed even before the trial commenced, cannot be sustained either in law, or on facts. Hence, the C.R.P. is allowed and the order under revision is set aside. Consequently I.A.No.1011 of 2008 stands dismissed. Therefore, the order passed by the trial Court allowing an application under Section 45 of the Act, which was filed even before the trial commenced, cannot be sustained either in law, or on facts. Hence, the C.R.P. is allowed and the order under revision is set aside. Consequently I.A.No.1011 of 2008 stands dismissed. It is directed that it shall be open to the parties to file an application under Section 45 of the Act, if they feel the necessity, even after the concerned witnesses are examined and the trial Court feels that the exercise under Section 73 of the Act, would not meet the requirement. There shall be no order as to costs.