CRP/3381/2023 of Yashwanth Rathode Vs Inagala Venkateshwarlu on 29 December 2023

ORDER:

.This Civil Civil Revision [[Petition, ]][[under ]][[Article ]][[227 ][of ][lhe ][Constitution of]][[of ][lhe ][Constitution of]][[lhe ][Constitution of]][[Constitution of]]

1 .This Civil Civil Revision [[Petition, ]][[under ]][[Article ]][[227 ][of ][lhe ][Constitution of]][[of ][lhe ][Constitution of]][[lhe ][Constitution of]][[Constitution of]]India, [is directed against ][the ][order dated 12'09'2023 ][passed ][in I'A'No'05]of 2023 [in ][O.S.No.126 ][of ][2O2O ][on the ][file ][of ][the ][Court ][of ][the ][Principal]lunior Civil [Judge-cum-Judicial Magistrate ][of ][First ][Class' ][Kothagudem']wherein and [whereby ][the ][petition ][filed ][by ][the ][petitioner under ][Section ][45]of the [Evidence ][Act ][to ][send ][the ][Ex'A'l ][promissory ][note ][along ][with ][his]admitted [signatures available in vakalatnama ][and written statement ][to ][the]handwriting [experf ][for ][exemption ][and ][opinion ][was dismissed']

2 Heard Sri [P.Shravan Kumar Goud, learned counsel ][for ][the ][petitioner]and Sri [Erigi Ganesh, ][learned ][counsel ][for the ][respondent']

3 The respondent [herein being ][plaintiff ][instituted ][the suit ][O'S'No'126]of 2020 against [the ][petitioner ][herein ][for ][recovery ][of ][money ][basing ][on the]suit [promissory ][note. The ][petitioner herein ][filed ][his ][written ][statement ][in]the said [suit. ][Now, ][after ][lapse ][of ][four ][years ][the ][petitioner came up with]I.A.No.OS [of ][2023 ][with the ][prayer ][stated supra' The ][learned ][trial ][Coutt]dismissed [the ][said ][petition ][with ][an ][observation ][that the ][petitioner ][has not]filed aAytontemporary [documents ][containing his ][admitteg ][siS-n9tu-lg: ][to]

sencj the same to the expert for comparison, by reiying upon the decision

of the High Court of Andhra pradesh in Tadi Suryanarayana v.Myravarapu Rama venkata Krishna Narsimha Raol. The triar courtfurther observed that the petitioner fired the petition at ftIe fag-end of thesuit i.e. when the suit is coming for arguments.4 The contention of the rearned counser for the petitioner is that thetriar court ought to have seen the reason for not firing the appricationmuch earlier because the petitioner has taken a plea in his writtensfatement that the suit promissory note is a concocted document andhence there is no possibility of changes in the stgnatures within threeyears' It is his further contention that since the very suit itserf is based onthe Ex.A.1 suit promissory note, and when the petitioner,s signatures areavairabre 6n vakarat and written statement which were fired in the year2020 itself, the_ reasoning of the court below. that *re changes in thesignatures may be varied and therefore they cannot be sent for opinion isabsolutely based on assumptions and presumptions. The learned counselfor the petitioner further contended that in view of *re specific objectionraised by the defendant as to the genuineness of the suit promissory note,the Court below ought to have sent the document for expert opinion for I 2o2o (1) ALT 431

Y

comparison [of ][the ][disputed ][signatures ][to ][meet ][the ][ends ][of ][the ][justice' ][He]further contended [that ][if ][such method is followed ][no ][prejudice ][would ][be]caused [to ][either side and ][on ][the ][other ][hand ][it ][would ][enable ][the ][Court to]arrive at [a right ][and ][definite ][conclusion ][']

On the the [[other ][hand, ]][[hand, ]][[the ][learned ][counsel ]][[learned ][counsel ]][[counsel ]][[for ][the ][respondent ][while]][[the ][respondent ][while]][[respondent ][while]][[while]]

5 On the the [[other ][hand, ]][[hand, ]][[the ][learned ][counsel ]][[learned ][counsel ]][[counsel ]][[for ][the ][respondent ][while]][[the ][respondent ][while]][[respondent ][while]][[while]]opposing [the ][present petition ][submitted ][that the trial ][Court ][has ][rightly]dismissed [the ][petition ][filed ][by ][the ][petitioner and ][that the ][petitioner ][has]filedthel.A.beforethetrialCourtonlytoprotractthelitigation.

6 No doubt, [there ][is ][no ][time limit fixed ][under ][Section ][45 ][of ][the]EvidenceActtosendthedocumenttoanexpertforcomparison'butthepetitionershouldofferaplausiblereasoninordertoestablishhisstand.Intheinstantcase,thepetitionerhasnotfiledanycontemporarydocumentscontaining [his ][admitted ][signatures ][to ][send ][the ][document ][for ][comparison']So the [principle ][laid down ][in ][Tadi ][Suryanarayana ][case ][(1 ][supra) ][relied]upon by [the ][learned ][trial ][Court would ][amply ][fortify the ][conclusion arrived]at bY the [learned triat ][Coutt']

7 Moreover, [it ][is ][not ][for ][the ][Oe8ndant ][to ][take ][out an ][application]

underSec.45ofthelndianEvidenceActastheonusisonlyontheplaintiff to [prove ][that ][the ][signature ][found ][in the ][suit ][promissory ][note ][is ][the]of [the ][defendant ][since ][the ][defendant ][hasl]signature

his written statement. However, Section 73 of the Indian Evidence Actalso empowers the court to compare such handwriting in order to come toits own concrusion. Further the opinion of the handwriting expert arone isnot the deciding factor in finding out the genuineness of the promissorynote and the same courd be tested by examining the attesting witnessesand also in some other modes and it is the duty of the praintiff to estabrishhis case by retting in sufFrcient oral and documentary evidence. It is onrywhen the Court forms an opinion that the assistance of an expert isessential to enable it to arrive at a just determination of the issue of theidentity of the disputed writing, then the court may take the assistance ofthe expert, that too after the remedy available under section 73 of theEvidence Act being exhausted.

8 In catena of decisions this court has deprecated the practice of filingapplications for examination of documents by handwriting experts at a latestage and thereby protracting and holding up the proceedings. Havingregard to the facts and circumstances and particularly keeping in view thatthe necessary evidence was already adduced by both the parties insupport of their craims, the court berow in exercise of its discretionconcluded that it is not necessary to send Ex.A1 promissory note forexpert's opinion. such discretion exercised by the court berow on 7'

appreciation of the evidence already adduced cannot be held to be perverse or vitiated on account of any extraneous considerations.

9 As noted above, the application for sending the disputed signaturesto an expert for comparison with the admitted signatures cannot beordered as a matter of course, but it has to be considered keeping in viewthe facts and circumstances of a particular case. Since such discretion wasexercised by the Court below in a judicious manner, the impugned order indeclining to send Ex.Al promissory note for opinion of handwriting expertcannot be said to be vitiated by any patent error of fact or law.

10 The order of the lower couft in the circumstances is quite valid and does not call for interference from this court in exercise of supervisoryjurisdiction under Article 227 of the Constitution of India.jurisdiction under Article 227 of the Constitution of India.

11 Accordingly, the civil revision petition is dismissed. No costs.Miscellaneous petitions if any pending in this civil revision petition shallalso stand dismissed.

sdr- Mohd Sanaullahuh [Ansari]--''id5srlNT REclsrRAR

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/TTRUE [COPY//]

SECTION [OFFICER]

1. The [Principal Junior Civil ][Judge-cum-Judicial ][Magistrate ][of ][First Class ][at]KothaqudemKothaqudem To, Kothaqudem, ;. A;';'a'ii""';Rl 6nE & A;';'a'ii""';Rl 6nE & [P ][sHRAVAN ][KUMAR ][Advocate ][couQllgate ][[oPUC]]

, ;. A;';'a'ii""';Rl 6nE & [i; ;rii ][Lnrcr ][enursn ][[oPUC]]

. Two CD [CoPies]AAJBPAAJBP

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HIGH COURT

DATED: 2911212023

ORDER

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CRP.No.3381 of 2023

THE CIUL REVISION PETITIONIS DISMISSED WITHOUT COSTS- .r