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Judgment
These Civil Revision Petitions are filed under Article 227 of the Constitution of India, assailing the common order dated 12.04.2019 in IA Nos.437, 438, 435 and 436 of 2019 in OS No.557 of 2013 respectively on the file of the learned XV Additional District & Sessions Judge, Ranga Reddy District at Kukatpally. Accordingly, it is proposed to dispose of all these CRPs through this common order.
a) IA No.435 of 2019 was filed under Order-26, Rule 4 (A) read with Section 151 of the Civil Procedure Code (for short ‘CPC’) praying the Court for appointment of advocate commissioner to record the evidence of hand writing expert, who offered opinion, vide Ref. No.691/Misc/ 2019, dated 19.02.2018 at his residence i.e., at the residence of Sri C.S.R. Murthy, Hand Writing Expert, Retired S.O., Government Examiner Curie, BPR & D, Flat No.703, I block, NCC, Near NASR School, Gachibowli, Cyberabad, Hyderabad.
b) IA No.436 of 2019 is filed under Order-7, Rule-14 (3) read with 151 CPC praying the Court to receive the hand writing expert’s opinion, vide Ref. No.691/Misc./2019 dated 19.02.2019 and enclosures appended to.
c) IA No.437 of 2019 was filed under Order-26, Rule-4 (A) of CPC praying the Court to appoint advocate commissioner to record the evidence of hand writing expert, who offered the opinion, vide reference No.692/Misc/2019, dated 05.03.2019 along with enclosures appended of Sri A. Kotaiah and vide Ref.No.693/Misc/2019, dated 05.03.2019 along with enclosures appended of Sri P. Srinviasa Reddy, at the residence of Sri C.S.R. Murthy, Hand Writing Expert, Retired S.O., Government Examiner Curie, BPR & D, Flat no.703, I Block, NCC, Near NASR School, Gachibowli, Cyberabad, Hyderabad.
d) IA No.438 of 2019 was filed under Order-VII, Rule-14 (3) CPC to receive the hand writing expert’s opinion, vide Ref. No.692/Misc./ 2019 dated 05.03.2019 along with enclosures appended of A. Kotaiah, vide Ref. No.653/Misc./2019, dated 05.03.2019 along with enclosures appended of Sri P. Srinivasa Reddy.
Thus, it is clear that all the four applications were filed by the plaintiff for receiving the documents i.e., hand writing expert opinion and also for recording the evidence of hand writing expert at the residence of Sri C.S.R. Murthy, hand writing expert. The original suit is filed for specific performance of agreement of sale dated 2.08.2012 and undertaking dated 18.08.2012 executed by the defendant. The defendant has specifically pleaded in the written statement that no such agreement of sale or undertaking were executed and they are forged documents and that his signatures were forged.
Be it stated that the defendant has also filed a criminal case against the plaintiff and others, vide CC No.981 of 2015 pending on the file of the learned III Additional Chief Metropolitan Magistrate at Nampally, Hyderabad and the plaintiff and others are contesting the said suit. The relationship between the plaintiff and the defendant as real brothers is not in dispute. It is further stated that due to the acts of the defendant, the plaintiff has filed a criminal complaint, vide CC No.145 of 2015, which is pending on the file of the learned XXV Metropolitan Magistrate, Cyberabad at Kukatpally.
In the course of trial, the plaintiff voluntarily on his own, in order to establish his case sought opinion from the hand writing expert, Sri C.S.R. Murthy, Retired Section Officer, Government Examiner and provided him certified copies of Exs.A.1 to A.3, A.9 & A.10 marked in this suit with the questioned signatures along with the admitted signatures of the witnesses, which are marked as S.1 to S.8 in CC No.145 of 2015 and also in CC No.981 of 2015. The said hand writing expert at the instance of plaintiff has examined the said documents and offered opinion along with the enclosures. It is the case of the plaintiff that certified copies were obtained by him and he has made them available to the expert, who has offered his opinion only during February- March 2019, as such he could not file the said documents in the earlier occasion.
The defendant has filed counter affidavit in all the above four interlocutory applications stating that expert opinion cannot be received in evidence and the relief sought by the plaintiff is hit by principle of estoppel. In fact, the plaintiff has filed IA No.269 of 2017 with a prayer to send the admitted agreement of sale and undertaking along with other documents to Sri C.S.R. Murthy for expert opinion and the said IA was dismissed on 12.09.2018. That order attained finality and binding on both the parties. This IA No.269 of 2017 filed by the plaintiff was dismissed for second opinion of the hand writing expert. Accordingly, the present applications after dismissal of the earlier application on 12.09.2018 are not maintainable.
The trial Court after hearing both sides passed a common order impugned dismissing all the applications with an observation that the procedure which was not allowed in one away by the Court, cannot be admitted in another away, without any clear directions from competent Court of law and the plaintiff has on his own send the documents, sought the opinion of private hand writing expert, by way of present applications sought to receive the said documents into evidence and also to record the evidence of private hand writing expert which is not maintainable. Aggrieved by the said orders, these CRPs are filed on the following grounds:
a) that the trial Court ought to have seen that in view of adverse opinion given by the Forensic State Laboratory, Hyderabad with regard to agreement of sale dated 02.08.2012 and 18.02.2012 and undertaking dated 07.12.2012 executed by the defendant. But, it is felt essential to obtain the second opinion. The evidence of hand writing expert ought to have been received; and
b) that the trial Court failed to appreciate that the attesting witnesses gave evidence in a criminal case and that the expert is aged more than 82 years, such cannot wait for a long time and accordingly, prayed to set aside the order impugned.
On a studied examination of the order impugned and the material available on record, it is found that these applications were only filed by the petitioner for reception of evidence of hand writing expert, Sri C.S.R. Murthy, Retired S.O., Government Examiner and the enclosures, vide expert opinion Ref. No.691/Misc/ 2019, dated 19.02.2019, 692/Misc/2019, dated 05.03.2019 and 693/Misc/2019, dated 05.03.2019.
It is pertinent to note that the petitioner/plaintiff has approached the trial Court and filed IA No.269 of 2017 to send the disputed documents and that application was dismissed on 12.09.2018, considering the fact that F.S.L. has given certain opinion on the documents, viz., agreement of sale and undertaking. Based on it, a criminal case in CC No.981 of 2015 is pending. At a later point of time, without making any request to the Court, the plaintiff on his own appears to have forwarded certain documents to Sri C.S.R. Murthy, Retired S.O., Government Examiner Curie, and that obtained his opinion. The plaintiff has referred the certified copies of Exs.A.1 to A.3, A.9 and A.10 marked in this suit along with admitted disputed signatures of his choice, which are marked as S.1 to S.8 in CC No.145 of 2015 and also in CC No.981 of 2015 and accordingly, obtained the expert opinion.
This Court in Virothi Tirupathi Rao v. Kota Venu 2016 (4) ALT 478 has categorically held as follows:
“unless expert’s opinion/report is obtained on an application made to a court in accordance with the procedure established by law and under the orders and supervision of the court, the opinion/report of the expert cannot be a part of the record of the court. Neither the opinion/report privately obtained can be received nor the expert, who has furnished the said report, be permitted to be examined as a witness, as any such evidence is inadmissible and will be of no probative value ...
“such a report obtained unilaterally without follwing the procedure established by law and without the necessary orders from the court, cannot be forced either upon the court or upon the plaintiff (respondent therein) ...”
The learned counsel for the petitioner relied on the principles laid in Kati Maheswara Rao v. Uppati Laita and other 2018 (2) ALT 594. In this decision, this Court has held that there is no bar to take opinion of the second expert without setting aside the earlier report. But, in the case on hand, the plaintiff did not approach the Court for referring the documents for obtaining the second opinion of the expert. He himself sent the disputed documents on his own voluntarily along with admitted signatures which were marked as S.1 to S.8 in CC No.145 of 2015 and also in CC No.981 of 2015 and sought for the opinion of the expert on the certified copies of Ex.A.1 to A.3, A.9 and A.10. Such a course is unwarranted and not acceptable.
Though the learned counsel for the petitioner strenuously contends that the FSL report filed by police in a criminal case has no bearing on the facts of the present case and the petitioner is not precluded from referring the document on his own to hand writing expert and obtaining an opinion, I am afraid to accept the contention of the learned counsel for the petitioner for the simple reason that any such expert opinion has to be obtained through a known procedure only as per the orders and under the supervision of the court. Further more, when once such application is filed by the petitioner in IA No.267 of 2019 and it was dismissed without carrying the order in appeal or revision, he has voluntarily referred those documents as certified copies, obtained an opinion from an expert of his choice without the knowledge and behind back of the Court, now intends to make such report of expert as part of the record and sought for examination of such expert as a witness on his behalf, in my considered opinion, such course of action is highly objectionable and it cannot be permitted.
The law is well-settled that unless experts opinion is obtained on an application filed or made to a court in accordance with the procedure established by law and under the supervision of the court, such opinion cannot be made part of the record. Thus, neither such expert who gave opinion at the instance of the parties without there being any directions from the Court, be examined as a witness nor any such reports said to have been issued by such experts be made part of the record as they are inadmissible and they have no probative value, since such reports are obtained unilaterally without following any procedure established by law, without the necessary orders from the Court. The principles laid in Virothi Tirupathi Rao’s case (1 cited supra) squarely applies to the facts of the present case. After dismissal of the application in IA No.269 of 2017 as per the order dated 12.09.2018 the plaintiff did not approach the trial Court with another application but he on his own voluntarily referred the Exs.A.1 to A.3, A.9 and A.10 marked before the trial Court and along with S.1 to S.8 in CC No.145 of 2015 and CC No.981 of 2015 to the private hand writing expert, Sri C.S.R. Murthy and obtained an opinion.
Thus, the procedure adopted by the plaintiff after dismissal of IA No.269 of 2017 is unknown to law and without there being any directions from competent court, he referred the documents on his own obtained opinion, such opinion of private expert without any orders and supervision of the Court is inadmissible in evidence, hence no such Commissioner could be appointed for recording the evidence of such expert and the documents i.e., report of expert and its enclosures as indicated above, cannot be received in evidence on behalf of the plaintiff. Therefore, I do not find any irregularity in the orders impugned and they are sustainable.
In the result, Civil Revision Petition Nos.1031, 1032, 1033 and 1035 of 2019 are dismissed confirming the order impugned dated 12.04.2019 in IA Nos.437, 438, 435 and 436 of 2019 in OS No.557 of 2013 respectively on the file of the learned XV Additional District & Sessions Judge, Ranga Reddy District at Kukatpally. However, in the circumstances of these cases, there shall be no order as to costs.
As a sequel, miscellaneous applications, if any pending, shall stand closed.