Kannuru Srirama Satya Pavan Kumar, Vs Byrapuram Raja Sekhar Reddy

This revision by the unsuccessful defendant No.1 under Article 227 of the Constitution of India is directed against the orders, dated 17.11.2023, of the learned II Additional District Judge, Parvathipuram, dismissing I.A.No.500 of 2023 in O.S.No.4 of 2021 filed under Section 45 of the Indian Evidence Act, 1872, read with Section 151 of the Code of Civil Procedure, 1908, requesting to send the suit promissory note/ Ex.A1 to the handwriting expert of the Central Forensic Lab, Hyderabad, for comparison of the same with admitted signatures and specimen signature of the defendant No.1 and for opinion.

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Heard Sri P. Durga Prasad , learned counsel for the petitioner/ defendant No.1 and Sri G.V. Subba Raju , learned counsel for the respondents/plaintiffs. The respondent No.3/defendant No.2 is stated to be not necessary party to this revision petition.

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The parties shall hereinafter be referred to as the plaintiffs and the defendant No.1.

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The case of the plaintiffs, as stated in the plaint, in brief, is as follows:

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The plaintiffs and defendants are known to each other and are residents of Visakhapatnam. The defendants 1 and 2 jointly borrowed an amount of Rs.36,00,000/- from the plaintiffs 1 and 2 on 01.03.2019 for the purpose of their domestic needs and to clear the debts. In token of receipt of the said amount, the defendants 1 and 2 executed a promissory note in favour of the plaintiffs. Subsequently, in spite of several requests and demands made by the plaintiffs for repayment of the said amount of debt, the defendants failed to repay any amount. Hence, the plaintiffs filed the suit.

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The case of the defendant No.1 as stated in the affidavit filed in support of the present petition in I.A.No.500 of 2023, in brief, is as follows:

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The defendants 1 & 2 are son-in-law and father-in-law respectively. The defendant No.1 is a practicing doctor and the defendant No.2 is a businessman. The defendant No.1 has no acquaintance with the plaintiffs, the alleged attestor and the scribe of the suit promissory note. He never borrowed any money from the plaintiffs as alleged in the plaint. The signature on the suit promissory note is forged. So, the allegation of execution of the suit promissory note by the defendant No.1 is false. Therefore, it is necessary to send

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the suit promissory note to the handwriting expert for comparison and opinion, or else, it would cause irreparable loss to the defendant No.1.

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The plaintiffs filed counter stating that the petition is not maintainable either under law or on facts; that the defendant No.1 approached the Court with unclean hands; that he is a chronic litigant; that all the allegations in the petition are denied; that the defendant No.1 has to prove his case by entering into witness box and that the petition is liable to be dismissed.

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The trial Court, having considered the rival contentions of the parties, dismissed the application observing that leaving the admitted signatures available on record, the defendant No.1 is trying to drag on the matter by filing the present petition.

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Aggrieved thereof, the defendant No.1 is before this Court.

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The learned counsel for the revision petitioner/defendant No.1 submitted that the reasoning assigned by the trial Court is not sustainable and the trial Court had exercised its jurisdiction which is not vested in it and had gone beyond the petition averments and thereby erred in dismissing the petition.

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10. Per contra , the learned counsel for the respondents/plaintiffs,

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while supporting the orders of the Court below and while reiterating the

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contentions of the plaintiffs, supported the order impugned in the revision.

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The suit is for recovery of money based on a promissory note. The defendant No.1 is disputing his signature on the suit promissory note. The plaintiffs’ evidence was closed. The defendants were examined as DWs 1 and 2. The suit is coming up for further evidence. The defendants did not choose to adduce any further evidence. When the suit is posted for further evidence of the defendants on payment of costs, this interlocutory application to send the suit promissory note to an expert and another petition in I.A.No.769 of 2023 to secure the thumb impression register from the office of the Sub-Registrar, Gopalapatnam, Visakhapatnam, were filed. The admitted signatures of the defendant are available on the vakalat, the suit summons, the postal acknowledgment and the written statement of the defendants filed in the suit. Furthermore, the defendant No.1 allegedly purchased certain property under a sale deed, dated 01.03.2019, vide document bearing No.555/2019 registered before the S.R.O., Gopalapatnam, by availing loan from HDFC Bank, Visakhapatnam, and the said document is under mortgage with the said bank. However, the defendant No.1 did not chose to send those documents to the expert along with the disputed signature on exhibit A1/suit promissory note.

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12. This Court in Perumallapalli Subhasekhar vs. Namburi

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Mukherji Victor¹ referred to the decision of the Madurai Bench of the Madras High Court in E. Murugamma Vs. S. Subbaiah and others² , wherein at para Nos. 11, 12 and 13, it was held as follows:

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“11. xx xx xx xx

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xx xx xx xx

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It is settled law that comparing the signature alone will not prove the case and the report of expert also not conclusive and binding on the court to follow the same but it is for the court to decide the matter on merits on the basis of other oral and documentary evidence available on record. At this juncture it is quite apt to cite the decision between State (Delhi Administration) v. Pali Ram , reported in AIR 1979 SC 14 and 15, whereby and whereunder it is observed as follows:

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"It is not the province of the expert to act as Judge or Jury. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may from its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or jury to

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1 2023:APHC: 32637 (Neutral citation)

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2 C.R.P.(MD) (PD) No.339 of 2015, dated 14.06.2018

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determine. The handwriting expert's function is to opine after a scientific comparison of the disputed writing with the proved or admitted writing with regard to the points of similarity and dissimilarity in the two sets of writings. The Court should then compare the handwritings with its own eyes for a proper assessment of the value of the total evidence.'"

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As rightly contended by the learned counsel for the respondents/ plaintiffs, during the course of arguments, the petitioner conveniently prayed to secure the thumb impression register from the Sub Registrar’s Office without filing any other authenticated document(s) containing the admitted signatures available with him. Moreover, he filed the petition at a very belated stage without assigning any reason, much less valid reason, for not availing the opportunity at an early stage, though he took the defence of forgery in the written statement filed long back. Though a petition seeking this relief can be filed at any stage, it does not mean that one can wait till the fag end of the case and file it then and thereby cause delay in adjudication of the case causing prejudice to the plaintiffs. Thus, the petition is intended to drag on the proceedings. As such, this Court sees no reason to interfere with the findings of the trial Court. There is no merit in the revision petition.

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14. Accordingly, the Civil Revision Petition is dismissed.

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There shall be no order as to costs.

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Miscellaneous petitions pending, if any, shall stand closed.