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Judgment
Introductory:
[i] This revision petition is directed against the orders dated 01.06.2017 passed in I.A. No.253 of 2017 in O.S.No.73 of 2014 on the file of Senior Civil Judge, Gurajala, Guntur District.
[ii] The revision petitioners are the defendants in the suit. The petition in I.A. No.253 of 2017 was filed invoking Order 26, Rule 10 of CPC read with Section 45 of Indian Evidence Act and Section 151 of CPC, with a prayer to send a disputed promissory note marked as Ex.A1 in the suit and part payment endorsement marked Ex.A2 as well as the signature of one late Ganimisetty Poornachandra Rao, signed by him during his life time, while he was in service in APSRTC, for comparison of genuineness of the signatures with the disputed signatures. Said application was dismissed under the impugned orders, dated 01.06.2017. Hence, the present revision.
Hearing:-
(i) Heard Sri P.Nagendra Reddy, learned counsel for the revision petitioner, and Sri. N.Satyanarayana Reddy, learned counsel for the respondent.
From the submissions made by both the counsel on record, and on perusal of the observations made in the impugned orders, it can be noted that the suit was filed basing on a promissory note dated 01.01.2010, said to have been executed by one Ganimisetty Poornachandra Rao, on receipt of a consideration of Rs.7,50,000/- and part payment endorsement was also made by him on 08.11.2012. During the trial, on behalf of the plaintiff, the attestor and the scribe of the promissory note were examined as PW.2 and PW.3, and Ex.A1-promissory note, Ex.A2- part payment endorsement and Ex.A3- legal notice, dated 25.03.2014 were got marked. The matter was adjourned for defendants side evidence and on 20.09.2016 and at their request the matter was adjourned till 28.02.2017. Thereafter, the defendants side evidence was closed and the matter was coming for arguments. At that stage, application in I.A. No. 253 of 2017 was filed and the orders under challenge were passed by the learned Civil Judge (Senior Division) dismissing the application.
An application vide I.A.No.252 of 2017 was filed for reopening the defendants side evidence and said application was allowed.
The revision petitioners/ defendants, who are the legal representatives of the original executant of the Suit promissory note, are disputing the correctness of the orders on the grounds as follows:
(a). The dismissal is erroneous and with an impression that the application is filed to delay the proceedings.
(b). Filing an application in 5 months after commencing the defendant side evidence is not a ground for dismissal of the application.
(c). Specific plea taken by the defendant is forgery. Therefore, the prayer for sending the document to expert opinion deserves positive consideration.
(d). To establish the defence of the defendant, opportunity should have been given.
(e). Plaintiff during the cross-examination stated that he has no objection in sending the document for expert opinion.
(f). Ignoring all the valid contentions, the application filed was dismissed and the impugned orders are not sustainable either in law or on facts.
Learned counsel for the respondent/plaintiff, in reply, would submit that there is no foundation for sending the documents/Ex.A1 and Ex.A2 for expert opinion. The suit is of the year 2014. The orders under challenge are justified. Revision petition deserves for dismissal.
Perused the impugned orders under challenge, grounds urged in the revision petition and the contentions in the petition as well as the counters filed before the Court below.
Thoughtful consideration is given to the arguments advanced by both sides.
Now the points that arise for determination in this revision petition are:-
Whether there are sufficient grounds to send the disputed promissory note dated 01.01.2010/Ex.A1 and part payment endorsement/Ex.A2 to the expert, in terms of Section 45 of Evidence Act and Order 26 Rule 10 of CPC?
Whether the orders dated 01.06.2017 passed in I.A. No. 253 of 2017 in O.S.No.73 of 2014 passed by the learned Civil Judge (Senior Division), Gurazala, Guntur District are sustainable in law or on facts? Or require any interference on the ground of any illegality etc.?
What is the result of the revision?
Analysis and reasoning:-
Learned counsel for the petitioner relied on the observations of a Division Bench of erstwhile High Court of Andhra Pradesh, in Janachaitanya Housing Ltd., Vs. Divya Financiers1, wherein it is observed that stage is no bar for filing an application, vide para 16, which reads as follows:
“16.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."
It was a case of filing an application at belated stage.
The reasons given by the learned Trial Judge for dismissal are that –
there is no averment pleaded in the petition filed by the defendant (revision petitioner) that they are having possession of admitted signature of original borrower of the contemporary period so as to demonstrate the genuineness of their contention.
Sufficient opportunity was provided to the defendants to put forth their evidence, from 20.09.2016 to 28.02.2017.
The petition is moved to delay the proceedings.
The prayer in the petition filed, is that – “ the Hon'ble Court may be pleased to permit a reputed handwriting expert appointed by court preferably a Government handwriting expert to examine And take the necessary photos of the suit promissory note Ex.A1 and part payment endorsement Ex.A2, as well as the signature of late Ganimisetty Poornachandra Rao, which was signed by him before his death at the time of his service in APSRTC in the presence of Both the parties or their counsel and direct the said expert to give his opinion about the genuineness of the signature found on Ex.A1 and Ex.A2.”
Leaving the grammatical confusion aside, it can be understood that the prayer is to send the signatures of late Ganimisetty Poornachandra Rao, which were signed by him during his lifetime, while he was in service in APSRTC and to take photos of Ex.A1 and Ex.A2, for comparison with the signatures of Ganimisetty Poornachandra Rao made by him while he was in service. For substantiating the same, it should be sown that the signatures of the late Ganimisetty Poornachandra Rao, pertaining to the contemporaneous period are available either with the defendant or before the Court. Steps ought to have been taken for summoning such admitted signatures if available by furnishing necessary details. But, no such steps were taken. The important aspect as to the availability of contemporaneous signatures must be specifically pleaded before seeking the relief of sending the disputed document for comparison and opinion by expert. The petitioner did not take any steps or made any effort to place the contemporaneous signatures before the Court. Therefore, there is no sufficient foundation for entertaining the prayer.
[i] It is settled law and practice that contemporaneous signatures are necessary for the purpose of comparison. For instance, reference can be made to the observations of this Court, in a case between P.Padmanabhaiah Vs. G.Srinivasa Rao2, vide para 8 wherein it is observed that –
“ …. Unless the defendant makes available to the Court below any documents, with his 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 the suit promissory note, the expert will not be in a position to furnish an assured opinion, in the well considered view of this Court. ….”
[ii] The above observations are reiterated recently by a Coordinate Bench of this Court in Whiteman Constructions (P) Ltd. v. Tammana Lakshmi Kalyani3, wherein para 14 of the judgment reads as follows:-
“14.In P. Padmanabhaiah (supra) also, it was specifically observed by a Coordinate Bench that „unless the defendant makes available to the court below any documents, with his 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 the suit promissory note, the expert will not be in a position to furnish an assured opinion, in the well considered view of this Court. So the presence of the documents is required before the expert. Those documents, on being produced before the court, can be referred to the expert. If the defendants fail to file those documents, such comparison before the expert will not arise.”
The argument that the stage of the proceedings alone itself cannot constitute a bar to entertain the prayer for sending the disputed document bearing signatures for expert opinion sounds both legal and logical. However, the failure on the part of the revision petitioners/defendants to place the contemporaneous signature before the Court, coupled with the omission on the part of the learned Civil Judge (Senior Division), Gurazala, to refer the same for expert opinion, cannot be attributed as a fault warranting interference.
In view of the foregoing discussion and upon examining the merits on both legal and factual sides, points Nos.1 and 2 are answered against the revision petitioners, concluding that there are no sufficient grounds to send the documents marked as Exs.A1 and Ex.A2 for expert opinion, as prayed for, and that the impugned orders do not suffer from any illegality or irregularity warranting interference by this Court. Consequently, the revision petition is liable to be dismissed.
Point No.3:
For the reasons and conclusions drawn under point Nos.1 and 2 above, in the result, the Civil Revision Petition is dismissed.
As a sequel, miscellaneous petitions, if any, pending in the appeal shall stand closed.