CIVIL APPEAL 283 of 2015 on 8 December 2014

ORDER:

CIVIL REVISION PETITION No.283 of 2015

The present Civil Revision Petition (for short ‘C.R.P’.) is preferred against the order passed in I.A.No.731 of 2014 in O.S.No.39 of 2010, dated 08.12.2014 on the file of the Court of the XIII Additional District and Sessions Judge, Gajuwaka, Visakhapatnam.

The petitioner, who is defendant in the said suit, filed an application under Section 45 r/w Section 73 of the Indian Evidence Act, 1872 to send the suit promissory note, dated 01.06.2009, to handwriting expert for comparison of signatures of the petitioner/defendant and the same was dismissed. Aggrieved by the same, the present C.R.P. has been preferred. At the time of admission of the matter, this Court permitted the petitioner to take out personal notice to the respondent and file proof of the same vide order dated 17.06.2016. The petitioner, incompliance with the orders of the Court, got served personal notice and filed proof of service vide memo dated 04.07.2016. Despite service of notice, no appearance was entered on behalf of the respondent.

As mentioned above, the petitioner, aggrieved by the order in rejecting her application for sending the suit promissory note to the handwriting expert for comparison of the signatures of the petitioner, filed the C.R.P. The learned counsel appearing for the petitioner submits that the Trial Court committed a material irregularity in dismissing the application seeking expert’s opinion with regard to the suit promissory note. He further submits that a specific plea was taken in the written statement to the effect that his signatures were forged and the suit was filed on the basis of forged document, as such it is necessary that the suit promissory note has to be sent to handwriting expert to verifty signatures and as such opinion of the handwriting expert is essential. He further submits that the Trial Court went wrong in opining that under Section 73 of the Indian Evidence Act, 1872, the Court is empowered to compare the disputed signatures of the parties with the admitted signatures. He also contends that when a specific plea was taken in the written statement with regard to the signatures on the suit promissory note, that it is forged, the genuineness of the signatures would be determined by the expert if the suit pronote is referred to hand writing expert. He also submits that in I.A.No.731 of 2014 in O.S.No.39 of 2010, the respondent has not filed any counter and in such a view of the matter, the Trial Court ought to have allowed the I.A.No.731 of 2014, filed by the petitioner.

Perused the order of the Trial Court and the averments in the affidavit filed in support of I.A.No.731 of 2014, as also in the written statement filed by the petitioner/defendant. Despite service of notice, no appearance was entered on behalf of the respondent/plaintiff.

A perusal of the order under revision would disclose that the Trial Court dismissed the I.A.No.731 of 2014, interalia on the ground that the petitioner has not taken any steps seeking to send the suit document for expert opinion at the earliest point of time, that the expert opinion is not a conclusive proof and further that as per Section 73 of the Indian Evidence Act, the Court can even compare the disputed signatures of the parties with their admitted signatures. The suit is at the stage of further evidence on defendant’s side. Though, there is no dispute with regard to powers of the Court, when a specific plea was taken in the written statement with regard to genuineness or otherwise of the signatures on a particular document, and a specific plea was taken that the signatures were forged, to unravel the truth and to resolve the real controversy, it would be appropriate to refer the signatures on the suit pronote for opinion of the handwriting expert.

It would be apposite to refer to the Judgment of the learned Single Judge in Thumu Srikanth Vs. Akula Babu[1], the relevant extract from the same reads as follows:

Conclusion

Though the Court has the power under Section 73 of the Evidence Act to indulge in comparing the disputed signatures or thumb impressions and forming its own opinion, it cannot be lost sight of that the Court is not technically trained or qualified to indulge in such comparison, except that with the wisdom and experience gained in presiding over the Court, such comparison may be of help in drawing appropriate inferences from the probabilities arising out of the other evidence on record. It is also true that the opinion of the expert obtained under Section 45 of the Evidence Act is mere opinion evidence and it is ultimately the Court that has to appreciate the acceptability or otherwise of the expert opinion. Still in a case like the present one, it cannot be said that the Court itself can come to a just conclusion by comparing the thumb impressions and signatures on the disputed document and those obtained in open Court and any such comparison with the naked eye by the Court may be an unsafe experiment in attempting to arrive at the truth.

Following the legal principle enunciated in the above decision and applying the same to the facts of the present case, the order in I.A.No.731 of 2014 in O.S.No.39 of 2010 on the file of the Court of the XIII Additional District and Sessions Judge, Gajuwaka, Visakhapatnam, is set aside and the I.A. stands allowed.

Accordingly, the Civil Revision Petition is allowed.

Consequently, miscellaneous petitions pending, if any, shall stand closed.

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NINALA JAYASURYA, J Date: 12.02.2020 BLV

BLV

HON’BLE SRI JUSTICE NINALA JAYASURYA

CIVIL REVISION PETITION No.283 of 2015

Dt: 12.02.2020