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2010 DIGILAW 692 (AP)

Thumu Srikanth v. Akula Babu

2010-08-02

G.BHAVANI PRASAD

body2010
JUDGMENT : The dismissal of the petition in I.A. No.922 of 2007 in O.S. No.192 of 2006 on the file of the Junior Civil Judge’s Court, Gajwel by the order dated 15-12-2009 led the unsuccessful petitioner/plaintiff to file the present revision. The petition was filed requesting to obtain the signatures and thumb impressions of the plaintiff and the defendant in the presence of their counsel in open Court and to get them examined and compared by the Regional Forensic Science Laboratory, Hyderabad along with the signatures and thumb impressions in the sale deed document No.2505/2005, registered on 25-04-2005. The petitioner/plaintiff contended that the suit property was purchased by him under the document in question from the defendant, the original document having been filed along with the suit. The defendant pleaded the said document to be sham, fabricated and created by impersonating the defendant and by forging his signature. In view of the said defence arose the request of the petitioner/plaintiff. The defendant resisted the request contending that the alleged sale deed is a fabricated document and even if the registered sale deed is proved to have been executed by him, still the suit is not maintainable. The defendant pleaded that sending of a document for an opinion of the expert is in the discretion of the Court and the Court itself can look into the document. The trial Court in the impugned order referred to the rival contentions and also referred to two decisions of this Court in coming to a conclusion that the Court itself can look into the disputed signatures and thumb impressions and come to a conclusion by its own knowledge as per Section 73 of the Evidence Act and mere filing of the petition to send the document along with the signatures and thumb impressions of the parties obtained in the Court need not be followed at the first instance. The trial Court also opined that the petition under Section 151 of the Code of Civil Procedure is not maintainable and dismissed the petition without costs. The trial Court also opined that the petition under Section 151 of the Code of Civil Procedure is not maintainable and dismissed the petition without costs. In the revision, the petitioner/plaintiff claimed that the purpose for which the petition was filed was not properly appreciated by the trial Court and in the light of the rival contentions of the parties and the refusal of the defendant to execute a rectification deed, sending of the document to an expert is necessary to ascertain whether the finger print/thumb impression of the defendant was affixed on the document in question. The petitioner/plaintiff has no other remedy to probablise the execution of the document by the defendant to have the comprehensive adjudication of the questions in controversy between the parties through proper evidence. Any wrong quoting of a provision of law, under which the petition is filed, should not have led to dismissal of the petition and the trial Court has passed the order without proper application of mind. Hence, the revision petitioner desired that the order be reversed. Though notice of the revision before admission was sent to the respondent, it was returned as refused and none entered appearance in this revision on behalf of the respondent. Ms. Lalitha Chouhan, learned counsel representing Sri G. Dhananjai, learned counsel for the revision petitioner is heard. The point for consideration is whether the document in question and the admitted signatures and thumb impressions of the parties have to be referred for opinion of an expert as requested ? Point: The trial Court relied on two decisions of this Court in rejecting the request of the plaintiff and the first of them is Md. Tajuddin v. Md. Abdul Rahaman and others ( 2008 (1) ALD 573 ). A learned Judge of this Court was dealing with the request to send the document to expert after more than 15 years of the litigation, more so after the matter was remanded by the High Court to the trial Court in the earlier round of litigation. The learned Judge observed that no document need be sent to an expert on mere filing of an application requesting the Court to send it to an expert and it is only when the trial Court is not in a position to come to a just conclusion, it must feel it necessary to send such document to an expert. The learned Judge observed that no document need be sent to an expert on mere filing of an application requesting the Court to send it to an expert and it is only when the trial Court is not in a position to come to a just conclusion, it must feel it necessary to send such document to an expert. The learned Judge while refusing to permit the document to be sent to an expert at that stage, still left it open to send the disputed signatures of the 3rd defendant therein to a handwriting expert as contemplated under Section 45 of the Evidence Act, if the Court is unable to come to a conclusion even after looking into the document. A close perusal of the decision clearly shows that it was more a factual conclusion arrived at by the learned Judge on the facts and circumstances of that particular case and no hard and fast principle against sending a document to an expert under Section 45 of the Evidence Act has been laid down. As the learned Judge has observed, if the facts and circumstances are such that for coming to a just conclusion, it is necessary to send such document to an expert, it is accordingly sent. In the second of the decisions in J.L. Babu v. S. Gowri Shankar and another ( 2009 (5) ALT 415 ), a learned Judge of this Court was dealing with a similar request to send the document to an expert and the learned Judge again proceeded with reference to the facts and circumstances of that case to conclude that the document in question need not be sent for examination by an expert before the concerned witnesses are examined. That was a suit for specific performance of an agreement of sale and the request for sending the document to an expert was opposed on the ground that it was premature. The learned Judge observed that the burden of proving the agreement of sale and the receipts is squarely on the plaintiff and the defendants having denied their execution, it is for the plaintiff to examine the concerned witnesses to show the genuineness of the signatures on the document. The learned Judge consequently observed that as the burden squarely rests upon the plaintiff to prove the document relied upon by him, the defendants could not have initiated any steps for disproving the document. The learned Judge consequently observed that as the burden squarely rests upon the plaintiff to prove the document relied upon by him, the defendants could not have initiated any steps for disproving the document. The learned Judge also took into account the possibility of the concerned witnesses admitting the signatures on the document during the course of their evidence and opined that taking any steps under Section 45 of the Evidence Act before examination of the witnesses is prone to lead to several complications. The learned Judge also referred to the power of the Court itself under Section 73 of the Evidence Act to undertake comparison. However, the learned Judge clearly observed that 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 that Act, may virtually become unnecessary or futile and hence, left it open to the parties to file an application under Section 45 of the Evidence Act, if they feel it necessary after examination of the concerned witnesses and if the trial Court feels that any exercise under Section 73 of the Evidence Act will not meet the requirements. Therefore, the question in each case would be whether any exercise under Section 73 of the Evidence Act by the Court itself will meet the requirements of arriving at the truth and whether obtaining the opinion of an expert in this regard under Section 45 of the Evidence Act would enable the Court to come to a just conclusion. The questions in controversy in the present dispute, as they appear from the material on record, are mainly about the execution of the registered sale deed dated 25-04-2005 by the defendant or not. The plaintiff asserts its execution by the defendant, while the defendant denies the same and the reliefs to which the parties are entitled and the questions in controversy in the suit are solely based on the proof or otherwise of the execution of the document in question. The plaintiff asserts its execution by the defendant, while the defendant denies the same and the reliefs to which the parties are entitled and the questions in controversy in the suit are solely based on the proof or otherwise of the execution of the document in question. Though the Court has the power under Section 73 of the Evidence Act to indulge in comparing the disputed signatures or thumb impressions and forming its own opinion, it cannot be lost sight of that the Court is not technically trained or qualified to indulge in such comparison, except that with the wisdom and experience gained in presiding over the Court, such comparison may be of help in drawing appropriate inferences from the probabilities arising out of the other evidence on record. It is also true that the opinion of the expert obtained under Section 45 of the Evidence Act is mere opinion evidence and it is ultimately the Court that has to appreciate the acceptability or otherwise of the expert opinion. Still in a case like the present one, it cannot be said that the Court itself can come to a just conclusion by comparing the thumb impressions and signatures on the disputed document and those obtained in open Court and any such comparison with the naked eye by the court may be an unsafe experiment in attempting to arrive at the truth. It must be just and necessary on facts of the present case that the exercise under Section 45 of the Evidence Act has to be permitted to be undertaken to have a comprehensive adjudication of the questions in controversy between the parties and any exercise under Section 73 of the Evidence Act may not meet the requirements. The facts in the present case are distinguishable from the facts under consideration of Their Lordships under the two decisions and the plaintiff ought to have been permitted to have the document and the admitted signatures and thumb impressions examined by an expert. The petition also need not be considered as premature, as the pleadings of the parties have crystallized the questions in controversy and the opinion of the expert will be more helpful to both parties in leading appropriate evidence and to the Court in coming to an appropriate conclusion with the help of such expert opinion, if it is otherwise dependable. The petition also need not be considered as premature, as the pleadings of the parties have crystallized the questions in controversy and the opinion of the expert will be more helpful to both parties in leading appropriate evidence and to the Court in coming to an appropriate conclusion with the help of such expert opinion, if it is otherwise dependable. Therefore, the impugned order has to be reversed and the petition has to be allowed. In the result, the order in I.A. No.922 of 2007 in O.S. No.192 of 2006 on the file of the Junior Civil Judge’s Court, Gajwel, dated 15-12-2009 is set aside and I.A. No.922 of 2007 is accordingly allowed without costs and the trial Court shall proceed to obtain the signatures and thumb impressions of the plaintiff and the defendant in the presence of their counsel in open Court on an appointed date and forward the so obtained signatures and thumb impressions along with the original registered sale deed No.2505/2005 registered on 25-04-2005 at the Sub-Registrar’s Office, Gajwel, to the State Forensic Science Laboratory, Hyderabad for examination and report by the concerned expert about the genuineness of the signatures/thumb impressions of the parties found on the said registered sale deed. The petitioner/plaintiff shall bear the costs of the entire exercise irrespective of the result of the suit. The civil revision petition is allowed accordingly. No costs.