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2010 DIGILAW 567 (AP)

S. Neelakantam v. Maharudraiah Swamy

2010-07-06

G.BHAVANI PRASAD

body2010
JUDGMENT : The dismissal of I.A. No.33 of 2010 in O.S. No.39 of 2008 on the file of the Senior Civil Judge's Court, Zaheerabad by the order dated 21-04-2010 led the unsuccessful defendant to approach this Court with this revision. The defendant earlier filed I.A. No.310 of 2008 to send the agreement of sale Ex.A.2 to a handwriting expert, which was allowed and the State Forensic Science Laboratory on examination of the document had opined that it is not possible to offer any opinion on the red enclosed portion marked 'Q' in question. The suit was posted for further evidence thereafter, at which stage the defendant again applied through this petition to send Ex.A.2 to Truth Laboratory, Hyderabad for giving an opinion whether the disputed portion in the document is different from the remaining portion of the contents of the document. The plaintiff opposed the request contending that he not only had no faith in any private agency accessible to one and all, but also opposed to the request, as any such expert's opinion is a very weak piece of circumstantial evidence. The plaintiff also stated that successive applications for the same relief ought not to be entertained and hence, requested for dismissal of the petition. The trial Court in the impugned order opined that the opinion of the handwriting expert is not conclusive on any issue and the second application for the same purpose cannot be entertained in the light of the decision in N. Sreenivasulu v. N. Prakash Reddy and another 2009 (4) ALD 745 . The revision petitioner claimed herein that the impugned order is vitiated, as the earlier expert stated that he cannot give any opinion, due to which the present request became necessary. The request is not one of seeking a second opinion after an opinion was already expressed by an expert. Sri P. Venkat Reddy, learned counsel for the revision petitioner and Sri A. Narasimha Rao, learned counsel, representing Sri S. Abhaya Kumar Sagar, learned counsel for the respondent are heard. The suit is for specific performance of the agreement of sale, dated 07-01-2005 and what the revision petitioner claimed is an interpolation said to have been made in the said suit agreement of sale. The suit is for specific performance of the agreement of sale, dated 07-01-2005 and what the revision petitioner claimed is an interpolation said to have been made in the said suit agreement of sale. The truth or otherwise of the claim of the revision petitioner has a material bearing on the questions in controversy between the parties and the determination of the rights of the parties to the suit property is obviously depending upon the finding of the Court on the truth and validity of the contents of the agreement of sale. Obviously for that reason, the trial Court had earlier permitted the document to be sent to an expert in I.A. No.310 of 2008. But unfortunately the expert of the State Forensic Science Laboratory expressed helplessness in expressing any opinion on the reference made to the laboratory. N. Sreenivasulu v. N. Prakash Reddy and another (1 supra) is a case where the expert expressed an opinion against the revision petitioner and the revision petitioner desired to have the same documents sent to another expert for comparison. The learned Judge, with reference to the precedents on the aspect, concluded that successive applications under Section 45 of the Evidence Act for the same relief are impermissible, merely because the opinion of an expert is not favourable to a party. The facts of the present case are clearly distinguishable in the sense that the first expert did not express any opinion at all and even though whatever the expert says may be an opinion, it may be of valuable assistance in appreciating the probabilities arising out of the other evidence on record. While the document, therefore, may have to be permitted to be sent to another expert, another fact to be taken into account is the expression of lack of confidence by the respondent/plaintiff in any private expert. After hearing both the learned counsel, it is considered appropriate to refer the document to the Central Forensic Science Laboratory, Ramanthapur, Hyderabad for examination by the concerned expert and his opinion. The defendant also should be made to bear the expenses of such reference without reference to the result of the suit, as further progress in the suit is being delayed due to the earlier and present requests made by the defendant. The defendant also should be made to bear the expenses of such reference without reference to the result of the suit, as further progress in the suit is being delayed due to the earlier and present requests made by the defendant. Accordingly, the order in I.A. No.33 of 2010 in O.S. No.39 of 2008 on the file of the Senior Civil Judge's Court, Zaheerabad, dated 21-04-2010 is set aside and the said I.A. No.33 of 2010 is allowed directing forwarding of Ex.A.2 to the Central Forensic Science Laboratory, Ramanthapur, Hyderabad for examination of the disputed contents of Ex.A.2 by the concerned expert and his opinion and the defendant shall bear the costs of such reference irrespective of the result of the suit. The civil revision petition is allowed accordingly without costs.