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2020 DIGILAW 635 (AP)

Pokala Poli Reddy Died v. Kambala Gurivi Reddy

2020-10-01

M.GANGA RAO

body2020
JUDGMENT M Ganga Rao, J. - The Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 11.06.2019 passed in I.A.No.166 of 2018 in I.A.No.1137 of 2017 in O.S.No.189 of 2012 by the Additional Senior Civil Judge, Kadapa, whereby the application filed under Order XIII Rule 10 of the Code of Civil Procedure seeking to summon the schedule documents 1 and 2 from Andhra Pragathi Grameena Bank at Kotha Nellore Branch and to send them to the Andhra Pradesh Forensic Science Laboratory along with suit document for examination, was dismissed. 2. The brief facts of the case are that the petitioners/ plaintiffs filed a suit in O.S.No.189 of 2012 against the respondent/defendant to pass a decree directing the defendant to pay the suit amount of Rs.4,61,550/- with future interest @ 18% per annum from the date of filing of the suit till the date of realization (amended as per orders in I.A.No.3679 of 2012 dated 17.07.2013), based on the original unregistered simple mortgage deed dated 18.05.2009 in respect of agricultural land to an extent of Ac.0.95 cents in Circar Punji D.No.418/A-1-A and an extent of Ac.0.25 cents in Circar Punji D.No.411/3 of Chemmullapalli Grama Polam, Chemmullapalli Gram Panchayat, Khajipeta Mandal, Kadapa District. 3. The respondent/defendant filed written statement denying the borrowing of a sum of Rs.3,00,000/- from the deceased plaintiff and execution of simple mortgage deed dated 18.05.2009 in favour of deceased plaintiff. He specifically pleaded that he never borrowed any amount from the deceased plaintiff at any point of time and that the alleged mortgage deed is a rank forged document. He also pleased that he never signed on the alleged mortgage deed and the signatures on the said document is not belonging to him. 4. When the execution of the mortgage deed itself was denied by the defendant, it appears that the 2nd plaintiff (since the 1st plaintiff was died, the 2nd plaintiff was added as his legal heir as per the orders in I.A.No.634 of 2016 dated 2504.2016) filed I.A.No.1137 of 2017 to send the suit document for handwriting expert for examination for comparison of the signature of the defendant with the admitted signatures. The said I.A. was allowed by the trial Court on 22.03.2018. The said I.A. was allowed by the trial Court on 22.03.2018. Accordingly, the trial Court directed the office on 10.07.2018 to send the suit document along with admitted signatures to the FSL, but the same was returned for want of more admitted signatures. Therefore, the petitioner filed I.A.No.166 of 2018 to call for the schedule documents from Andhra Pragathi Grameena Bank at Kotha Nellore Branch in order to send them to the handwriting expert. The trial Court dismissed the said application stating that the application is filed without seeking the reopen of suit since the evidence on the side of plaintiff and defendant was closed long back. Further, the suit is an identified Pre-2014 case for disposal. On 26.04.2017, the suit was posted for defendant's side evidence and defendant's side evidence was completed on 29.01.2019. The suit was posted for arguments on 31.01.2019, 06.02.2019 and 25.02.2019 and at that stage, the impugned application is filed. Hence, the same was dismissed as not maintainable. Aggrieved by the order passed in I.A.No.166 of 2018 in I.A.No.1137 of 2017 in O.S.No.189 of 2012, this civil revision petition is filed. 5. Heard Sri G.Ramesh Babu, learned counsel for the petitioner. No appearance is made by the respondent in spite of service of notice on 28.09.2019. 6. Learned counsel for the petitioner submits that the trial Judge committed manifest error in dismissing the I.A., without appreciating the fact that the present application is filed only to meet the requirement of handwriting expert and dismissed the present application would lead to defeat the purpose for which earlier I.A.No.1137 of 2017 was allowed. The dismissal of I.A. by the trial Judge on the ground that the present application is filed without seeking reopen of the suit, is not correct as filing application to reopen the suit is only procedural aspect and it is a curable one. The procedural aspect cannot be a ground to deny substantial justice to the parties. The impugned order is unsustainable inasmuch as the same is contrary to the scope and spirit of Order XIII Rule 10 of C.P.C. and settled proposition of law. 7. The procedural aspect cannot be a ground to deny substantial justice to the parties. The impugned order is unsustainable inasmuch as the same is contrary to the scope and spirit of Order XIII Rule 10 of C.P.C. and settled proposition of law. 7. Having regard to the facts and circumstances of the case and considering the submission of the learned counsel for the petitioner, and on perusal of the record, this Court found that the I.A.No.1137 of 2018 filed for sending the suit document for handwriting expert for examination was allowed on 22.03.2018 and the trial Court directed its office on 10.07.2018 to send the suit document along with admitted signatures to the FSL, but the same was returned for want of some more admitted signatures. However, the trial Court, pending opinion of the handwriting expert, as per the order of the trial Court passed in I.A.No.1137 of 2017 dated 22.03.2018, allowed to proceed with the evidence of the defendant and closed the defendant's side evidence on 29.01.2019 and posted the suit for arguments on 31.01.2019 and even the present application I.A.No.166 of 2018 was pending. 8. Admittedly, due to lapses on the part of the learned counsel for the petitioner in the trial Court in bringing to the notice of the trial Judge about pending of the application and that the opinion of the handwriting expert is not received as per the order passed in I.A.No.1137 of 2017, the trial Court inadvertently proceeded with the trial and completed the evidence of the defendant's side and closed the evidence and posted the suit for arguments. 9. In the considered opinion of this Court, the trial Court ought to have been allowed the impugned application as no prejudice could be caused to the defendant in sending the schedule documents 1 and 2 to the FSL for handwriting expert opinion, by calling them from Andhra Pragathi Grameena Bank, Kotha Nellore Branch. The trial Court ought to have waited for the opinion of the handwriting expert, which certainly help the trial Court for proper adjudication of the suit and the defendant can be allowed to raise necessary relevant objections to the opinion of the handwriting expert. 10. Moreover, the petitioner could not be denied the opportunity of getting the handwriting expert opinion in support of their plea. 10. Moreover, the petitioner could not be denied the opportunity of getting the handwriting expert opinion in support of their plea. The trial Court ought to have been called for the schedule documents 1 and 2 from Andhra Pragathi Grameena Bank, Kotha Nellore Branch, in order to send them to FSL for its opinion, by allowing the impugned application, which would meet the ends of justice and it will certainly divulge the truth or otherwise of the plea of the defendant that the document is rank forged. If the trial Court allowed the impugned application, it will certainly meet the settled principle of law and the Justice must not only be done but seemingly done. 11. If the trial Court is diligent enough, it ought not to have allowed the evidence of defendant to be completed and posted the case for arguments, when expert opinion is pending as per the order in I.A.No.1137 of 2017 and application I.A.No.166 of 2018 is also pending. The said I.A.No.166 of 2018, which is filed to produce scheduled documents 1 and 2 and sent them to the FSL, could be filed under Order XVI Rule 6 of C.P.C. read with Rule 129 of the Andhra Pradesh Civil Rules of Practice & Circular Orders, 1980 and even if proper application is not filed, the trial Court on its own motion summon the public officer under sub-rule (6) of Rule 129, to produce the documents in his custody in accordance with sub-rule (1), if its thinks necessary for the ends of justice to do so. 12. The grounds mentioned by the trial Court while rejecting the application cannot be sustainable when no prejudice is caused to the parties and on mere procedural lapses and technicalities, Justice cannot be denied. If the Court feels that the expert opinion is needed for adjudication of the dispute relating to the genuineness of the documents, it can send the same for expert opinion at any stage of the suit. Hence, this Court feels that the ends of Justice would be met if the suit is reopened and summons could be issued to the Branch Manager, Andhra Pragathi Grameena Bank, Kotha Nellore Branch, Khajipet Mandal, Kadapa District, to produce the schedule documents 1 and 2 and sent them to the FSL along with suit document for comparison and for the opinion of the handwriting expert. The opinion of the handwriting expert will certainly help the Court to determine the issues involved in the suit in a proper and comprehensive manner. 13. Accordingly, the Civil Revision Petition is allowed, setting aside the order dated 11.06.2019 passed by the Additional Senior Civil Judge, Kadapa in I.A.No.166 of 2018 in I.A.No.1137 of 2017 in O.S.No.189 of 2012. No order as to costs. 14. As sequel to it, Miscellaneous Petitions, if any pending, shall stand closed.