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2020 DIGILAW 830 (AP)

Y. Diwakar Reddy v. Kolla Sreenivasulu

2020-12-17

M.SATYANARAYANA MURTHY

body2020
ORDER : M. Satyanarayana Murthy, J. 1. This petition is filed under Article 227 of the Constitution of India questioning the Order in I.A. No. 959 of 2016 in O.S. No. 213 of 2014 passed by the Principal Senior Civil Judge, Punganur, Chittoor District, whereby the application filed under Section 45 of the Indian Evidence Act read with Section 151 of the Civil Procedure Code (for short "CPC") to refer the disputed document i.e., agreement of sale, dated 16.04.2011, vakalath and the signatures of the defendant to be obtained in open Court to the expert for examination and opinion, was dismissed. 2. The petitioner herein is the defendant in the main suit and the respondent/plaintiff filed the suit for specific performance of sale agreement, but the defendant raised a specific plea that it is a forged document. An issue was framed by the trial Court regarding inadmissibility of the document, but the parties went on trial. Plaintiff's evidence was closed and the suit was posted for defendant's evidence. At this stage, the application under Section 45 of the Evidence Act was filed to refer the disputed document i.e., agreement of sale, dated 16.04.2011 along with vakalath and the signatures of the defendant to be obtained in open Court, to the expert for examination and opinion. 3. The respondent/plaintiff filed counter pleading that the petition is not maintainable either in law or on facts. The petitioner/defendant himself received an amount of Rs. 50,000/- and executed the suit agreement of sale. P.W.2 by name Ramoji, who is the attestor of the document, clearly deposed about the attestation of the document, but nothing could be elicited in the cross examination of P.W.2 regarding forgery. Therefore, the petitioner is resorted to the procedure to refer the document to the expert for examination and opinion. At this stage, the application is not maintainable and requested to dismiss the same. 4. Upon hearing both the counsel, the trial Court passed a cryptic Order in 10 lines stating that the petition was filed at belated stage and the Court is competent to compare the signatures of the petitioner with his admitted signatures by exercising power under Section 73 of the Indian Evidence Act. 5. Aggrieved by the Order of the trial Court, present revision petition is filed on various grounds. 5. Aggrieved by the Order of the trial Court, present revision petition is filed on various grounds. The main contentions urged before this Court are that the Order of the trial Court is contrary to the Apex Court Judgment in the case of Shaik Umar vs. Bairam Susheela 2016(2) ALD 1 (F.B.). The Court should not take upon itself the responsibility of comparing signatures normally and such power has to be exercised sparingly in exceptional cases. But, the trial Court erroneously concluded that such exercise can be undertaken when the power is conferred on the Court under Section 73 of the Indian Evidence Act and requested to set aside the same. 6. During hearing, Sri B. Neeraja Sudhkar Reddy, learned counsel for the petitioner reiterated the contentions urged in the petition, more particularly contended that at any stage of the case, the disputed documents can be sent to the expert for examination and opinion and there is no bar against filing of such application at belated stage and that apart it is the duty of the Court to refer the document to the expert for examination and opinion when such application is filed, instead of exercising power of comparison of admitted signatures with disputed signature in view of the power conferred by Section 73 of the Indian Evidence Act and requested to set aside impugned Order allowing this revision petition. 7. Sri G. Ramachandra Reddy, Counsel appearing for the respondent/plaintiff supported the Order impugned in this revision petition in all respects. 8. Considering rival contentions and upon perusing the material available on record, the sole point that arose for consideration is that:- Whether the document at the stage of defendant's evidence can be referred to the expert for examination and opinion, if so, whether the Order passed by the Court below is sustainable? 9. Point: Admittedly, the application before the trial Court was filed under Section 45 of the Indian Evidence Act which deals with relevancy of expert's opinion and filing such applications under Section 45 of the Indian Evidence Act become routine, because, the Courts are allowing such applications even without looking into the facts. There is a specific provision in CPC which deals with appointment of Commissioner for scientific investigations. There is a specific provision in CPC which deals with appointment of Commissioner for scientific investigations. The application is sought to be filed only under Order XXI Rule 10-A of CPC and not to exceed procedural law i.e., Evidence law since Section 45 of the Indian Evidence Act is limited only to exigency of expert opinion. 10. In any view of the matter, the dispute is regarding the genuineness of the document. The document sued upon is the agreement of sale, 16.04.2011, whereas the petitioner herein disputed the genuineness of the document in the written statement specifically. In such a case, the defendant can take steps to refer disputed signatures on the agreement of sale along with vakalat, written statement and the signatures of the defendant to be obtained in the open Court to the expert at any stage of the proceedings in view of the law declared in Apex Court Judgment in Shaik Umar's case (referred supra). 11. Therefore, the delay is not a ground to negate the relief in the petition filed by the petitioner/defendant for reference of the disputed signatures to the expert for his examination and opinion. On this ground alone the dismissal of the interlocutory application by the Court below is illegal and erroneous in view of the law declared by Full Bench decision of the judgment of the High Court of Hyderabad (For the State of Telangana and the State of Andhra Pradesh) in the case of Bande siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and others : 2016 (2) CTC 481 . 12. The other reason assigned by the Court below is that the Court can exercise power under Section 73 of the Indian Evidence Act to compare the disputes signatures with the admitted signatures to be obtained in the open Court. No doubt such power is conferred and such exercise can be undertaken only when either party did not take steps resorting to procedure contemplated under Order XXVI Rule 10-A CPC to refer the disputed document to the expert for examination and opinion appointing Commissioner for scientific examination. But, the Court is not an expert in all respects and cannot discharge the duty of an expert. But, the Court is not an expert in all respects and cannot discharge the duty of an expert. Therefore, the proposed attempt by the trial Court to compare the admitted signatures exercising power under Section 73 of the Indian Evidence Act is an illegality more particularly when the petitioner filed an application to refer the disputed signature on document to the expert along with the admitted signatures, for examination and opinion. Hence, the Order passed by the Court below is liable to be set aside. Accordingly, the point is answered. 13. In the result, the Civil Revision Petition is allowed, while directing the trial Court to refer the disputed signatures on the agreement of sale i.e., Ex. A.1 and signatures of the defendant on vakalat, written statement and the signatures of the defendant to be obtained in the open Court in the presence of counsel, as per the procedure, subject to payment of requisite Court fee payable to the expert for examination and opinion within two (02) weeks from the date of receipt of a copy of this Order. There shall be no order as to costs. The miscellaneous applications pending, if any, shall also stand closed.