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2014 DIGILAW 1434 (AP)

Dasari Lingaiah v. Thatikonda Venugopal Reddy

2014-11-27

A.V.SESHA SAI

body2014
Order Akula Venkata Sesha Sai, J. 1. This revision, filed under Article 227 of the Constitution of India, by the defendant in OS No. 7/2011 on the file of the Court of Junior Civil Judge, Kodad, assails the order dated 15.7.2014 passed by the said Court, dismissing IA No. 101 of 2014 filed by him under the provisions of Section 45 of the Indian Evidence Act (for short "the Act"). Heard Sri J. Sreenivasa Rao, learned Counsel for petitioner, apart from perusing the material available before the Court. Despite service of notice on the Counsel for the respondent in the Court below, none appeared for the respondent. 2. The facts and circumstances leading to filing of the present revision are as under: The respondent herein instituted OS No. 07 of 2011 on the file of the Court of Junior Civil Judge, Kodad, against the petitioner herein, for recovery of Rs. 54,240/- together with interest on the foot of a promissory note said to have been executed by the petitioner herein. 3. In the said suit, the defendant/petitioner herein filed present Interlocutory Application No. 101 of 2014 under Section 45 of the Act, praying the Court below to send the promissory note and receipt dated 2.2.2009 (Ex. A1) along with other documents containing the signatures of the petitioner to the Handwriting Expert for comparison of the signatures on the promote. Resisting the said application, the plaintiff/respondent herein filed a counter. The learned Junior Civil Judge, Kodada, by virtue of an order dated 15.7.2014, dismissed the said Interlocutory Application filed by the petitioner herein. 4. Aggrieved by the said order, the present revision has been filed. 5. It is contended by the learned Counsel for the petitioner that the order under challenge in the present revision is erroneous, contrary to law and opposed the very spirit and object of the provisions of Section 45 of the Act. The learned Counsel further submits that if the application filed by the petitioner herein is ordered, no prejudice would be caused to the respondent herein. It is further contended that the reason assigned by the Court below that the application is belated one cannot be sustained and it is nextly contended by the learned Counsel that in the event of sending Ex. It is further contended that the reason assigned by the Court below that the application is belated one cannot be sustained and it is nextly contended by the learned Counsel that in the event of sending Ex. A1 for an Expert, the genuineness of the document would come out, which would be helpful for the Court below to arrive at just conclusion. It is further contended that in fact there is no delay in filing the application. To booster his submissions and contentions, the learned Counsel for petitioner placed reliance on the judgments reported in Janachaitanya Housing Limited, Hyderabad v. Divya Financiers, Guntur, 2008 (4) ALD 339 (DB); Medikonda Rama Swarajyalakshmi v. Posina Sathyanarayana and another, 1999 (1) ALD 210 and Velaga Sivarama Krishna v. Velaga Veerabhadra Rao, 2009 (1) ALD 265 : 2009 (1) ALT 379 . 6. In the above background, now the question that emerges for consideration of this Court in the present revision is whether the Court below is justified in dismissing the application filed by the petitioner herein under Section 45 of the Act and whether the same warrants any interference of this Court under Article 227 of the Constitution of India. 7. The information available before this Court discloses that the respondent herein filed OS No. 07 of 2011 on 24.1.2011 before the Court below for recovery of amount on the foot of a promissory note alleged to have been executed by the defendant/petitioner herein. The defendant/petitioner herein filed a Written Statement on 8.4.2011 denying the averments in the plaint and stating that the suit promissory note is a false and fabricated document and it does not contain the signature of the defendant/petitioner herein. It is noteworthy that during the course of cross-examination of PW 1 on 11.8.2013, PW 1 categorically deposed that he has no objection if Ex. A1 is referred to Handwriting Expert for comparison and report. In the instant case, as stated by the learned Counsel for the petitioner, the cross-examination of DW 1 came to an end on 18.3.2014 and the present application in IA No. 101 of 2014 was filed on the same date. Therefore, by any stretch of imagination, it can neither be said nor concluded that the application filed by the petitioner is belated one. 8. Therefore, by any stretch of imagination, it can neither be said nor concluded that the application filed by the petitioner is belated one. 8. Coming to the judgment refereed to by the Court below in Nalnaru Shanmugham v. Nalnary Nalayanaiah, 2013 (1) ALD 301 : 2013 (3) ALT 497 , this Court while dealing with an application filed under Section45 of the Act also categorically held at Para No. 6 that "belatedness of the application for sending the disputed document to an expert for comparison shall not constitute the sole reason for rejection of such application". This Court further held that "the conduct of the parties is very much relevant in considering such applications". In the instant case, PW 1 during the course of cross-examination on 11.8.2013 categorically deposed that he has no objection if Ex. A1 is referred to Handwriting Expert for comparison. It is also to be noted in the instant case that the cross-examination of DW 1 came to an end on 18.3.2014 and on which date, admittedly, the petitioner herein filed the present application under Section 45 of the Act. Therefore, the conduct of the petitioner herein cannot be found fault with. Therefore, the above cited judgment would not render any assistance to the defendant/respondent herein. 9. Coming to the judgments cited by the learned Counsel for the petitioner-in Janachaitanya Housing Limited's case (supra), a Division Bench of this Court at Para Nos. 14 to 16 held as under: "In view of the same, we are of the opinion that the Court cannot lay down any hard-and-fast rules controlling the discretion of the Court to send the disputed documents/writings for the opinion of the expert or to examine him in support of such opinion. On sending the document to handwriting expert and on receiving report, parties, on showing sufficient cause, may call upon the Court to permit them to examine handwriting expert or any witness in support or rebut the said opinion. 15. It is apt to quote here the observation of Justice Vivian Bose in his illuminating language dealing with the Code of Civil Procedure in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 , which reads thus: "It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." 16. For the reasons aforementioned, we answer the reference thus: "No time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court; for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of the each case." 10. In Medikonda Rama Swarajya-lakshmi's case (supra), this Court at Para No. 5 held as under: "The learned Counsel for the petitioner contended that it is only after the plaintiffs witnesses asserted that the signature on Ex. A1 is that of the first defendant, the defendants now sought for sending the same to handwriting expert since according to the first defendant the signature found on Ex. A1 is not her signature and it cannot be said that there is any belatedness on the part of the petitioner-first defendant. 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 fan the land for some more time. 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. However, the learned Counsel for the petitioner strenuously contended that the impugned order cannot be said to be a case decided for exercising jurisdiction of this Court under Section 115, CPC. In these circumstances, I think it appropriate to send the disputed document for the opinion of the handwriting expert. However, the learned Counsel for the petitioner strenuously contended that the impugned order cannot be said to be a case decided for exercising jurisdiction of this Court under Section 115, CPC. He relied upon the judgments of the Supreme Court in S.S. Khanna v. F.J. Dillon, AIR 1964 SC 407, Baldevdas v. Filmistan Distributors and Gurdev Singh and others v. Mehnga Ram and another, 1997 (5) ALD (S.C.S.N.) 5, in support of his contention. From a reading of judgment in S.S. Khanna's case (supra), I find that the Supreme Court ruled that the case decided need not be the entire suit decided and it may be at interlocutory stage. But, what is to be seen is whether the rights of the person are affected by the impugned order. The principle laid down by the Supreme Court cannot be disputed. The explanation added to Section 115, CPC specifically incorporated the principle laid down by the Supreme Court in the above judgment. But, what is to be seen is whether the rights of the petitioner would be affected by the impugned order or not. In my opinion, the rights of the petitioner would be affected if the document in question is not sent to the handwriting expert since to that extent the evidence which she seeks to lead would be denied to him. In fact, in Gurdev Singh's case (supra), the Honourable Supreme Court found fault with the order of the High Court in setting aside the order of the appellate Court directing to send the document for the opinion of the handwriting expert and the Supreme Court further observed that the order of the appellate Court should not have been set aside by the High Court." 11. In Velaga Sivarama Krishna's case (supra), this Court at Para No. 7 held as under: "Whenever a party disputes the signature on a particular documents, two remedies are open to him. Either to request the Court to compare the signatures or to file an application to send the document to the expert for comparison. When the petitioner opted to file an application to send the document to the handwriting expert, no prejudice will be caused to either party. Either to request the Court to compare the signatures or to file an application to send the document to the expert for comparison. When the petitioner opted to file an application to send the document to the handwriting expert, no prejudice will be caused to either party. When he is asserting that the signature is that of the said party, even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the strokes, the speed of writing, the pattern of writing etc., therefore, it cannot be said that no useful purpose will be served by sending the document to the expert. After comparison if the similarities of the disputed signature and the admitted signatures are very negligible, then the Court can formulate its opinion with the assistance or the experts report and by comparing the signatures whether the report has to be accepted or not. But, if the opportunity is denied to the defendant and if the matter is earned to the appellate Court, there is every likelihood of commenting that he did not avail the opportunity of filing an application for sending the document for handwriting expert's opinion, if he is so sure that the disputed signature does not belong to him". 12. The principles laid down in the above referred judgments are squarely applicable to the facts and circumstances of the present case and mere belatedness in filing the application cannot be a ground for rejecting the request of the petitioner. 13. A perusal of the order impugned in the present revision shows that the learned Judge evidently dismissed the application on the ground of delay. It is relevant to note at this juncture that in the counter filed in IA No. 101 of 2014 except stating that the petitioner herein did not approach the Court with clean hands, without any sufficient reason and only to drag on the case, no other alleged defect in the conduct of the petitioner is pointed out. For the aforesaid reasons, the CRP is allowed, setting aside the order dated 15.7.2014 in IA No. 101 of 2014 in OS No. 07 of 2011 on the file of the Court of Junior Civil Judge, Kodad. For the aforesaid reasons, the CRP is allowed, setting aside the order dated 15.7.2014 in IA No. 101 of 2014 in OS No. 07 of 2011 on the file of the Court of Junior Civil Judge, Kodad. Consequently, IA No. 101 of 2014 is allowed and the Court below is directed to send the document to the Handwriting Expert for comparison and opinion. No order as to costs. As a sequel, the miscellaneous petitions, if any, pending shall stand closed.