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2023 DIGILAW 679 (AP)

Avula Narasimha Rao v. Kosana Koteswara Rao

2023-04-10

SUBBA REDDY SATTI

body2023
JUDGMENT 1. Defendant, in the suit filed the above revision against the order dtd. 21/10/2022 in I.A.No.1072 of 2019 in O.S.No.104 of 2018 on the file of learned II Additional District Judge, Guntur. 2. Plaintiff filed suit O.S.No.104 of 2018 against the defendant for recovery of amount basing on four promissory notes, dtd. 30/1/2015, 30/1/2015, 10/11/2015 and 10/11/2015 respectively. 3. Defendant, by filing written statement denied his signature on the promissory notes. Defendant also stated that he never saw face of the plaintiff. 4. Pending the suit, defendant filed I.A.No.1072 of 2019 under Sec. 45 of the Indian Evidence Act, 1872 to send Exs.A1 to A3 to the handwriting expert for comparison with the admitted signatures. 5. In the affidavit filed in support of the petition, while reiterating contentions in the written statement, defendant prayed to send Exs.A1 to A3 for comparison of signature with admitted signatures of the petitioner. 6. Plaintiff filed counter and opposed application. 7. Trial Court, by order, dtd. 21/10/2022 dismissed the petition. Aggrieved by the same, present revision is filed. 8. Heard learned counsel on either side. 9. Learned counsel for the petitioner would contend that defendant denied execution of promissory notes. He submits that in fact, defendant has no acquaintance with the plaintiff. In view of the specific plea raised in the written statement, defendant filed I.A. to send Exs.A1 to A3 to handwriting expert. Court below without appreciating the same dismissed the I.A. 10. Learned counsel for the respondent, on the other hand, while supporting order of the trial Court would submit that there is no illegality in the order of the trial Court. Learned counsel, further contended that no authentic document, containing the admitted signatures, was filed. 11. The point for consideration is whether the trial Court failed to exercise the jurisdiction vested with it? 12. A perusal of the order shows that trial Court opined that petition was filed at a belated stage only to dragon on the proceedings. 13. The Full Bench of composite High Court of Andhra Pradesh in Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors, 2016 (2) ALD 1 while affirming the ratio of division bench in Janachaitanya Housing Ltd. Vs. 13. The Full Bench of composite High Court of Andhra Pradesh in Bande Siva Shankara Srinivasa Prasad Vs. Ravi Surya Prakash Babu and Ors, 2016 (2) ALD 1 while affirming the ratio of division bench in Janachaitanya Housing Ltd. Vs. Divya Financiers ( AIR 2008 AP 163 ) observed as follows: "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 Sec. 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. DIVYA FINANCIERS AP/0137/2008AP/0137/ 2008 : 2008 (3) ALT 409 (DB), as to the stage of the proceedings when an application can be moved by a party under Sec. 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." 14. In Janachaitanya Housing Ltd. case, on reference the Division Bench of composite High of Andhra Pradesh held as follows: "9. For the reasons aforementioned, we answer the reference thus: "No time could be fixed for filing applications under Sec. 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." 15. In view of expressions in the above referred judgments, filing of application at belated stage is not a ground to dismiss the petition. The Court must consider the pleadings of the parties. In the case on hand, petitioner took a plea that he had no acquaintance with the plaintiff and the signatures on Ex A-1 to A-3 are forged. I.A. was filed in consonance with the pleadings raised in written statement. Trial Court ought to have exercised the jurisdiction vested with it. 16. However, in the affidavit filed in support of the petition, defendant did not disclose regarding the admitted signatures on authenticated documents. I.A.No.2 of 2023 was filed in the above revision to receive copy of registered Joint Development Agreement -Cum- G.P.A., dtd. 2/1/2015, entered into between Talapaneni Anil Kumar and NRS Infra, a partnership firm represented by its Managing Partner, Avula Narasimha Rao, which contains signatures of the defendant. Promissory notes marked as Exs A-1 to A-3 are of the year 2015 and the registered document now filed is also of the year 2015. In view of the discussion supra, this Court deems it appropriate to allow this civil revision petition. 17. Accordingly, Civil Revision Petition is allowed. Order dtd. 21/10/2022 in I.A.No.1072 of 2019 in O.S.No.104 of 2018 on the file of learned II Additional District Judge, Guntur, is set aside. I.A.No.1072 of 2019 stands allowed. The learned Trial Court shall send Exs.A1 to A3 along with original registered Joint Development agreement -cum- GPA, dtd. 2/1/2015 to be filed by the defendant before trial Court, to handwriting expert for comparison of signatures on the payment of expenses by the defendant. Defendant shall file original registered Joint Development agreement -cumGPA, dtd. 2/1/2015 before the trial Court within a period of two weeks from today along with affidavit. On such filing of the affidavit, trial Court shall pass appropriate orders in sending Ex A-1 to A-3 to hand writing expert to compare the signature with the Joint Development agreement -cum- GPA, dtd. 2/1/2015 to any government hand writing expert. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.