Research › Search › Judgment

Andhra High Court · body

2023 DIGILAW 248 (AP)

Abdul Gafoor v. R. Govinda Reddy

2023-01-31

B.SYAMSUNDER

body2023
JUDGMENT : This Civil Revision Petition is filed by petitioner/plaintiff under article 227 of the Constitution of India against the orders passed by the learned Principal Senior Civil Judge, Kadapa in I.A. No. 1690 of 2017 in O.S. No. 214 of 2005 dated 27.01.2017, wherein and whereby learned Trial Judge dismissed the petition filed by the petitioners/plaintiff under Section 45 of Indian Evidence Act read with Section 151 of Civil Procedure Code refused to send agreement of sale dated 31.01.1996 to the Hand Writing Expert, AP State Forensic Science Laboratory, Hyderabad to compare the signatures and thumb impressions contained in it with the admitted signatures of D5 and thumb impressions of D3 by taking their signatures and thumb impressions in open Court and for submission of the report. 2. The case of the petitioner/plaintiff before the Trial Court in brief is that he filed suit against respondent seeking relief of specific performance of a contract basing on agreement of sale dated 14.03.1996, executed by R1 in his favour who in turn got an agreement of sale in his favour dated 31.01.1996 executed by R2 to R5 in respect of suit schedule property. It is the contention of the petitioner that R2 to R5 have denied the execution of agreement of sale dated 31.01.1996 executed in favour of R1 and they have also denied the execution of agreement of sale dated 14.03.1996 stating that signatures in both documents are forged. He submits that in view of defence taken by the respondents in this suit, it has become necessary for him to file a petition to send agreement of sale dated 31.01.1996 along with hand writing and thumb impressions of R5/R3 to Hand Writing Expert for comparison by taking their thumb impressions and signatures in Open Court. 3. The respondents have filed counter before Trial Court denying averments in the affidavit of the petitioner. It is the contention of the respondents that the petitioner came up with a petition at belated stage though they filed written statement denying their signatures and thumb impressions in the agreement of sale dated 31.01.1996. They submit that Ex.A2, agreement of sale dated 31.01.1996, petitioner is not a party and reasons for seeking expert opinion are not tenable. They prays to dismiss the petition. 4. They submit that Ex.A2, agreement of sale dated 31.01.1996, petitioner is not a party and reasons for seeking expert opinion are not tenable. They prays to dismiss the petition. 4. After hearing both sides, the learned Trial Judge dismissed the petition filed by the petitioner on the ground that there is un explained delay in filing the petition. Though petitioner is aware of the contents of written statement filed by the respondents and observed that petitioner is a stranger to Ex-A2 who cannot seek the relief of sending the document to expert. 5. Aggrieved by the orders passed by the learned Trial Judge, petitioner preferred present Revision Petition stating that orders passed by the learned Trial Judge are illegal and it is material irregularity in exercise of jurisdiction vested in it. He submits that Trial Court failed to see that R1 -R5 have denied execution of agreement of sale dated 31.01.1996 due to that burden is on him to prove the said document for which he intended to seek opinion of the Hand Writing Expert which erroneously dismissed by the Trial Court. 6. I have heard learned senior counsel for the petition Mr. C. Prakash Reddy. The learned counsel Mr. Sarathkumar represented for Mr. K. Srinivas, learned counsel for respondents. 7. The learned counsel for revision petitioner would submit that petitioner has filed petition seeking relief of specific performance of a contract in pursuance of agreement of sale dated 14.03.1996 which executed by R1 as he has got agreement of sale from R2 to R5 dated 14.03.1996. He would further submit that R1 to R5 have denied execution of Ex-A2 agreement of sale dated 14.03.1996 and as attester of the document not supporting the contention of the petitioner, to prove the execution of the agreement of sale by R2 to R5 in favour of R1, the petitioner sought opinion of Hand Writing Expert which dismissed by the learned Trial judge on two grounds which are delay in seeking relief and another one is petitioner being a stranger to the document cannot seek relief. He argued that both reasons given by the Trial Court are not tenable in view of the ratio laid down by this Court Full Bench in “Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors., AIR 2016 AP 118 ”. He argued that both reasons given by the Trial Court are not tenable in view of the ratio laid down by this Court Full Bench in “Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors., AIR 2016 AP 118 ”. It is the contention of the learned counsel for revision petitioner that it is for the Expert to decide whatever admitted and disputed signatures in the document fit for comparison or not and there is no bar in law seeking relief by the person who got suit agreement of sale against the person who also having agreement of sale as suit is filed against both persons. He prays to allow the Revision Petition. 8. Now, the issue that emerges for consideration by this Court is: “Whether the orders under challenge are sustainable and whether the same warrants any interference of this Court under article 227 of the Constitution of India.” 9. POINT:- Before going to the merits of the case, it would be beneficial to quote Section 45 of Indian Evidence Act, which reads as under: “45. Opinions of experts—When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts. Illustrations (a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant. (b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant”. 10. This Court Division Bench in “Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors.,” referred supra relied on by the learned counsel for revision petitioner while answering the reference held at paras 32, 33 & 36 which reads as under: “32. The Division Bench judgment in JANACHAITANYA HOUSING LIMITED MANU / AP/ 0137/2008 : 2008 (3) ALT 409 (DB) was rendered upon a reference made by a learned Single Judge of this Court on the question as to whether an application under Section 45 of the Act of 1872 for expert opinion on disputed signatures could be entertained at a later stage of the suit, including when the suit was coming up for arguments after the entire trial. Contemporaneity of the signatures in dispute and the admitted signatures was not even in issue before the Division Bench. Upon due consideration of the case law on the point, the Division Bench answered the reference as under: 33. 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. 36. We accordingly answer the reference as under: It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/ signature under Section 45 of the Indian Evidence Act, 1872. 36. We accordingly answer the reference as under: It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/ signature under Section 45 of the Indian Evidence Act, 1872. The Court is however not barred from sending the disputed handwriting/ signature for comparison to an expert merely because the time gap between the admitted handwriting/signature and the disputed handwriting/signature is long. The Court must however endeavour to impress upon the petitioning party that comparison of disputed handwritings/signatures with admitted handwritings/signatures, separated by a time lag of 2 to 3 years, would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. That being said, there can be no hard and fast rule about this aspect and it would ultimately be for the expert concerned to voice his conclusion as to whether the disputed handwriting/ signature and the admitted handwriting/signature are capable of comparison for a viable expert opinion. The view expressed by the Division Bench in JANACHAITANYA HOUSING LIMITED V/s. DIVYA FINANCIERS MANU/AP/0137/2008 : 2008 (3) ALT 409 (DB), as to the stage of the proceedings when an application can be moved by a party under Section 45 of the Indian Evidence Act, 1872, continues to hold the field and there is no necessity for this Full Bench to address that issue”. 11. The learned Single Judge of this Court who also considered ratio laid down by this Court in Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors., case referred supra and held in P. Padmanabhaiah Vs. G. Srinivasa Rao in Civil Revision Petition No. 2121 of 2016 order dated 07.12.2016 which reads as under: “The view point being projected by the plaintiff that if the defendant is called upon to furnish his signatures in Open Court, he might designedly disguise his signatures while making his signatures on papers in Open Court is also having considerable force and merit. Unless the defendant makes available to the Court below any documents, with this signatures, of authentic and reliable nature more or less of a contemporaneous period, and unless such documents are in turn made available to the expert along, with this suit promissory note, the expert will not be in a position to furnish an assured opinion, in the well-considered view of this Court”. Further it is not in dispute that the defendant in his cross-examination has denied his signatures on his vakalath filed in the suit and also could not affirm or say for sure as to whether his signature on the affidavit field in lieu of examination in chief is his character and add one or more piece of unreliable evidence and burden the record by wasting the time and money of the parties. When there are no signatures of comparable and assured standard on the material record before the Trial Court, it is unsafe to obtain the signatures of the defendant in Open Court and send the said signatures and also his vakalath and written statement to an expert for obtaining his opinion after comparison of the signatures thereon with the disputed signatures on the suit promissory note, as any such opinion obtained from handwriting expert of such material is not going to be of any help to the Trial Court in effectively adjudicating the lis more particularly in the light of the admitted legal position that expert’s opinion evidence as to handwriting or signatures can rarely, if ever, take the place on substantive evidence”. 12. In the present case, suit is filed by the plaintiff seeking relief of specific performance of a contract in pursuance of agreement of sale dated 14.03.1996, said to be executed by R1 who in turn said to be got an agreement of sale in his favour dated 31.01.1996 executed by R2 to R5. The 1st respondent/D1 filed written statement before the Trial Court denying execution of agreement of sale in favour of D1 and he also denied agreement of sale dated 14.03.1996 and endorsement dated 29.06.1996. R3 to R5 have filed written statement in the suit before Trial Court wherein they denied execution of agreement of sale dated 31.01.1996. The 1st respondent/D1 filed written statement before the Trial Court denying execution of agreement of sale in favour of D1 and he also denied agreement of sale dated 14.03.1996 and endorsement dated 29.06.1996. R3 to R5 have filed written statement in the suit before Trial Court wherein they denied execution of agreement of sale dated 31.01.1996. It is not in dispute that suit is filed by the petitioner seeking relief of specific performance in the year 2005 and Trial of the suit has been commenced and petitioner came up with this petition in the year 2017. It is no doubt true that Full Bench of this Court laid down that Court is not barred from sending the disputed hand writings/signatures for comparison to an expert merely because the time gap between admitted and disputed signatures is long and when delay in filing petitions. It is also held that seeking opinion of the Hand Writing Expert is judicious discretion of the Court depending on the individual facts and circumstances of the case before it. It is also held that the Court must however endeavour to impress upon the petitioning party that comparison disputed hand writings/signatures with the admitted hand writings/signatures, separated by time lag of two (02) to three (03) years would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. 13. Now the petitioner seeking relief of sending disputed signatures and thumb impressions of the document dated 31.01.1996 by obtaining thumb impressions and signatures of R5 and R3 in Open Court in the year 2017 which is 12 years after institution of the suit. It is not the contention of petitioner that he filed documents or any other record before the Court below containing signatures or thumb impressions of R2 to R5 prior to the period of Ex-A2 agreement of sale dated 31.01.1996. In those circumstances, the learned Single Judge of this Court in P. Padmanabhaiah Vs. G. Srinivasa Rao case referred supra has rightly considered situation. Similar to present one and held that obtaining the signatures of party in Open Court and sending the same is noway helpful to the Trial Court in effectively adjudicating the lis when there are no contemporaneous signatures available for time lag of two (02) to three (03) years as observed by Full Bench of this Court in Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors., case referred supra. 14. It is not the stage to decide whether petitioner has got right to file suit for specific performance of contract who said to be got agreement of sale from R1/D1 who in turn said to be got agreement of sale dated 31.01.1996 from R2 to R5 which has to be decided by the Trial Court after considering the right of the parties in view of the provisions of the Transfer of Property Act and Specific Relief Act. When Trial Court extended judicious discretion and refused to send the document to the Hand Writing Expert for comparison basing on facts and circumstances of the case which warrants no interference by this Court which exercising supervisory jurisdiction under Article 227 of the Constitution of India. 15. In view of the discussions in preceding paragraphs, this Court is of an opinion that there is no jurisdictional error in the orders passed by the learned Trial judge which needs interference of this Court while invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 16. In the result, the Civil Revision Petition is dismissed. No order as to costs. Consequently, miscellaneous petitions if any, stands closed, the interim stay if any, granted shall stand vacated.