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2024 DIGILAW 1337 (AP)

Ch. Venkata Sathyavathi v. E. Rambabu

2024-09-23

B.S.BHANUMATHI

body2024
ORDER : 1. These two revisions, under Article 227 of the Constitution of India, by the unsuccessful plaintiff are directed against the orders dated 13.12.2022, of the learned VII Additional District Judge-cum-IV Additional Metropolitan Sessions Judge, at Vijayawada, passed in I.A. Nos. 189 of 2020 and 190 of 2020 in O.S. No. 305 of 2006 respectively. 2. Heard Ms. K. Sridevi, learned counsel for the revision petitioner/plaintiff and Sri Y.V. Nagabhushana Rao, learned counsel for the respondent/defendant. 3. Since the parties are same, both these revisions are heard together and are being disposed of by this common order. The parties in these two revisions shall hereinafter be referred to as the plaintiff and defendant, as arrayed in the suit, for convenience and clarity. 4. The facts that lead to filing of these revisions by the plaintiff, in brief, are as follows: (a) The plaintiff brought the suit against the defendant for recovery of a sum of Rs.21,94,665/- with subsequent interest @ 24% per annum based on the suit promissory note, dated 05.09.2013. The defendant filed written statement resisting the suit. The defendant pleaded that he neither received any amount from the plaintiff nor did execute the suit promissory note and the suit promissory note is rank forgery and is not supported by consideration. It is further stated that the suit promissory note. The suit was filed in collusion with the attestors and the scribe. (b) During trial, the plaintiff got examined the scribe as PW4 and got filed his chief-examination. In the cross-examination, PW4 deposed certain facts, which are not true and correct. Therefore, the plaintiff intends to re-examine PW4 to put certain questions in order to establish the truth. (c) Hence, the plaintiff filed these two applications, viz. I.A. No. 189 of 2020 under Order XVIII Rule 17 and Section 151 CPC to recall PW4 and I.A. No. 190 of 2020 under Section 45 of the Indian Evidence Act, 1872, to order for sending the suit promissory note for comparison of the signatures on the disputed promissory note with the admitted signature of the executants, as the defendant pleaded that the suit promissory note is forged. 5. 5. The defendant filed separate counters opposing the applications and contending as follows: (a) I.A. No. 189 of 2020: The defendant stated that PW4 is the scribe and he categorically stated before the Court in his cross-examination that the pronote was prepared in the office of the counsel for the plaintiff just before filing of the suit and that the defendant was not present at the time of scribing the pronote by him and the defendant did not execute the pronote. Then, the counsel for the plaintiff reported no re-examination of PW4 and the present petition is filed only to fill up the lacunae due to which prejudice to the defendant would be caused. (b) I.A. No. 190 of 2020: The plaintiff’s evidence was closed. At this stage, the present petition is not maintainable. Moreover, previously, the petitioner/plaintiff filed similar petition and it was dismissed. As such, this petition is not maintainable as hit by the principle of res judicata. The petition is liable to be dismissed. 6. After hearing both parties, the trial Court dismissed both the petitions observing that when the witness (PW4) deposed certain facts in cross-examination, it is for the plaintiff to examine him, if necessary, in re-examination at the same time. The Court further noted that having reported re-examination ‘nil’ it is not proper for the plaintiff to file application for recall of PW4 and that there is no ambiguity in the cross-examination of PW4 and the petition is not maintainable. The trial Court further observed that if the defendant takes the plea of forgery, the burden of proof lies on the defendant and not on the plaintiff, however, in the present case, the plaintiff is seeking expert’s opinion to prove that signature is not forged and the same cannot be permitted. 7. Aggrieved thereby, the plaintiff preferred these two revisions. 8. The learned counsel for the revision petitioner/plaintiff submitted that the petition to recall was filed only to avoid multiplication of litigation and not intended to fill up the lacunae. Further, the opinion of an expert was sought to clarify the ambiguity in the signature affixed on the pronote. He further submitted that no similar petition was filed seeking opinion of the expert and hence, the principle of res judicata does not apply. 9. On the other hand, the learned counsel for the defendant supported the orders impugned in these revisions. 10. He further submitted that no similar petition was filed seeking opinion of the expert and hence, the principle of res judicata does not apply. 9. On the other hand, the learned counsel for the defendant supported the orders impugned in these revisions. 10. Before proceeding further, it is apropos to mention Order 18 Rule 17 C.P.C. herein-below: Order XVII Rule 17: Court may recall and examine witness: The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such questions to him as the Court thinks fit. 11. In the present case, it is the case of the plaintiff that in the cross-examination, PW4 not only deposed against the case of the plaintiff but also against his own evidence in the chief examination, and thus turned hostile. Therefore, he wants to put some questions to PW4 in order to establish the truth, and hence, examination of PW4 by way of reexamination is very much essential. 12. Here, it is pertinent to refer the relevant part of the decision of the Supreme Court in Vadiraj Naggapa Vernekar (D) through LRs. vs. Sharad Chand Prabhakar Gogate, (2009) 4 SCC 410 is as follows: “......25. In our view, though the provisions of Order 18 Rule 17 CPC have been interpreted to include applications to be filed by the parties for recall of witnesses, the main purpose of the said rule is to enable the court, while trying a suit, to clarify any doubts which it may have with regard to the evidence led by the parties. The said provisions are not intended to be used to fill up omissions in the evidence of a witness who has already been examined. 26. As indicated by the learned Single Judge, the evidence now being sought to be introduced by recalling the witness in question, was available at the time when the affidavit of evidence of the witness was prepared and affirmed. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. 28. It is not as if certain new facts have been discovered subsequently which were not within the knowledge of the applicant when the affidavit evidence was prepared. 28. The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re-examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC. 29. It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. 30. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the trial court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. 31. Some of the principles akin to Order 47 CPC may be applied when a party makes an application under the provisions of Order 18 Rule 17 CPC, but it is ultimately within the court's discretion, if it deems fit, to allow such an application.....” 13. Insofar as the application for seeking the opinion of an expert for comparison of the signature on the promissory note with any admitted signature of the executants is concerned, the trial Court dismissed the petition by a cryptic order without assigning any reasons. 14. In Siddavarapu Abishek Paul vs. Budala Denia, MANU/AP/1248/2023 it was held at Para No. 13 as follows: “13. Whenever a party disputes the signature on a particular document, 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. 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 of the expert's 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 carried 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. In view of the circumstances, I am of the view that it is essential to send the document to the expert for comparison at the request of the party in the interests of justice, which cannot cause any amount of prejudice to the plaintiffs in the present suit, therefore, the order of the lower Court is liable to be set aside.” 15. Having regard to the ratio in the above-referred decisions and in the facts and circumstances, the trial Court ought to have allowed the applications. As such, the orders impugned are liable to be set aside. 16. Accordingly, both the revision petitions are allowed setting aside the orders, dated 13.12.2022, passed in I.A. Nos. 189 of 2020 and 190 of 2020 in O.S. No. 305 of 2016. Consequently, both the applications are allowed. 17. There shall be no order as to costs. 18. Miscellaneous petitions, if any, pending in these revisions shall stand closed.