Remanded

G Devi v. Y Papaiah Naidu

Andhra Pradesh HC17 Dec 2019CRP/1984/2019

Case brief

AI extract

What is this about?

Civil Revision Petition quashing an order dismissing an application under Section 45 of the Evidence Act due to delay. The High Court set aside the trial court's order relying on a contrary single-judge decision and directed a referral to a handwriting expert.

What did the court decide?

Impugned order dismissed is set aside; trial court directed to refer disputed signatures to expert; no order as to costs.

G Devi Vs Y Papaiah Naidu — Civil Procedure and Limitation | Andhra Pradesh HC (2019)

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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Civil Revision Petition No.1984 of 2019

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ORDER:

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This petition is filed under Article 227 of the Constitution of India to issue a Writ of Mandamus , questioning the order in I.A.No.753/2018 in O.S.No.356/2017, thereby the application filed by this petitioner is dismissed under Section 45 of the Evidence Act, on the ground of delay.

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The petitioner is the defendant in O.S.No.356/2017 on the file of I Additional Junior Civil Judge, Tirupati and the suit was filed based on the promissory note dated 01-11-2015. The specific plea raised by this petitioner is that the promissory note is crated by the plaintiff and after examination of witnesses the petition is filed, but the respondent opposed the petition by filing counter on the ground that it is belated one besides raising other contentions. Further, the trial Court based on the judgment in Nainaru Shanmugam Vs. Nainaru Narayanaiah¹ where the Court held as follows:-

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“Where application at a belated stage is not bona fide and the same is intended to prolong the suit, delay in filing an application to send the suit document to expert’s opinion would certainly constitute a relevant ground for dismissing the same”

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Basing on the same judgment the trial Court dismissed the application. Aggrieved by the same present petition is filed contending that delay is a ground and application can be filed at any stage subject to permissibility, the Court may refer the disputed signatures along with the admitted signatures for comparison and opinion and requested to set aside the impugned order.

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Notice is ordered to the respondent and filed proof of service, but

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none appeared.

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1 (2013 (3) ALT 497

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During hearing, the learned counsel for petitioner mainly contended that the delay is not a ground in view of matter declared by the Full Bench of this Court in Bande Siva Shankara Srinivasa Prasad vs. Ravi Surya Prakash Babu and others² , where the Full Bench relying on earlier judgments in Janachaitanya Housing Limited³ and other judgment in Malay Kumar Ganguly Vs. Dr.Sukumar Mukherjee⁴ held that delay is not a ground to dismiss the petition filed under Section 45 of the Evidence Act, with a request to refer disputed signatures along with the admitted signatures to the expert, and it is for the Court to decide independently.

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In view of the law declared by the Full Bench, the reason assigned by the trial Court for dismissal of the petition i.e., delay by applying the judgment of the Single Judge referred above in Nainaru Shanmugam Vs. Nainaru Narayanaiah¹ is an illegality. In view of Full Bench Judgment in Nainaru Shanmugam Vs. Nainaru Narayanaiah¹ is not binding when a Full Bench of High Court took different view. Hence, I find that the reason assigned by the trial Court is erroneous, and consequently the order is set aside while directing the trial Court to refer disputed signatures on Ex.A.1 along with the admitted signatures to the expert by following directions issued from time to time on payment/deposit of fee payable to the expert within four (04) weeks from today.

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With the above direction, this Civil Revision Petition is disposed of. There shall be no order as to costs.

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

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___________________________________ JUSTICE M. SATYANARAYANA MURTHY

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Date: 17-12-2019 IS

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