Allowed

U. Madan Gopal v. Sudhakar

Telangana HC13 Feb 2013CRP/3627/2012

Case brief

AI extract

What is this about?

This order allows a Civil Revision Petition filed by a defendant against the dismissal of an application under Section 45 of the Indian Evidence Act. The High Court held that the trial court erred in dismissing the application for handwriting expert opinion as belated, directing the trial court to allow it.

What did the court decide?

The impugned order of the Senior Civil Judge dismissing I.A.No.280 of 2012 is set aside. The lower court is directed to send the agreement of sale to a handwriting expert for comparing signatures.

U. Madan Gopal Vs Sudhakar — Contract and Commercial Disputes | Telangana HC (2013)

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HONOURABLE SRI JUSTICE R. KANTHARAO

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CIVIL REVISION PETITION No. 3627 OF 2012

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Date: 13th February, 2013

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Between: U. Madan Gopal … Petitioner And Sudhakar …Respondent

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The Court made the following: [Order follows next page]

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THE HONOURABLE SRI JUSTICE R. KANTHARAO

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CIVIL REVISION PETITION No. 3627 OF 2012

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ORDER:

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This Civil Revision Petition is filed by the defendant in O.S.No.70 of 2007 against the order dated 19.06.2012, passed by the Senior Civil Judge, Wanaparthy, in I.A.No. 280 of 2012 in O.S.No.70 of 2007.

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2. I have heard Sri Prabhala Rajasekhar, the learned

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counsel appearing for the revision petitioner/defendant and Sri K. Govardhan Reddy, the learned counsel appearing for the respondent/plaintiff.

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3. The short facts necessary for considering this Civil Revision Petition are that the respondent/plaintiff instituted the suit for specific performance of agreement to sell dated 23.09.2012, which was allegedly executed by the revision petitioner/defendant in favour of the respondent/plaintiff agreeing to sell the plaint schedule property. It was alleged in the plaint that the defendant received total consideration of Rs.50,000/- and undertook to register sale deed in favour of the plaintiff as and when demanded.

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4. In the course of the trial, on behalf of the plaintiff, P.Ws.1 to 3 were examined and the matter was posted for defendant’s evidence. At that stage, the defendant filed the I.A.No.280 of 2012 under section 45 of the Indian Evidence Act for sending the agreement of sale to the handwriting expert for comparison of signature of the defendant with that of the admitted signatures available in the Court as mentioned in the said application. The trial Court dismissed the petition on the ground that the petition was filed at the belated stage with an intention to protract the suit. Aggrieved by the said order, the defendant filed the present revision petition.

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5. It is contended by the learned counsel appearing for the defendant-revision petitioner that the occasion seeking for expert opinion would only arise after the plaintiff proving his case of execution of agreement of sale and that immediately after the evidence of the plaintiff was over the defendant also adduced evidence and completed his evidence on 19.03.2012 and then filed the present application on 14.04.2012, and therefore there is no delay in making the application. It is further submitted that the application under section 45 of the Indian Evidence Act, seeking experts opinion can be filed at any stage of the

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suit, and the trial Court erred in holding that the petition was filed at a belated stage.

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6. On the other hand the learned counsel appearing for the respondent/plaintiff submitted that the defendant took inconsistent pleas in the written statement, at one place admitting the agreement of sale and at another place disputing the genuineness of the agreement of sale by contending that it is a forged and fabricated document.

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7. A perusal of the written statement filed by the defendant indicates that the defendant took a plea that the plaintiff suppressed the original agreement of sale, which was in the handwriting of the defendant and filed the suit basing on forged and fabricated agreement and therefore, it cannot be said that the defendant did not take the plea that the agreement of sale basing on which the suit was filed by the plaintiff is forged and fabricated document.

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8. In Damara Venakta Murali Krishna Rao Vs Gurujupalli Satvathamma^[1] it was held as follows:

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“The High Court dismissed the application primarily on the ground that intention of the appellant is to protract the litigation. It was noted that the very conduct of the appellant in making an application to send Exts. B-1 to B-12 to handwriting expert after the close of the evidence and when the case came up for argument indicated that the object was to protract the litigation.

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Learned counsel for the appellant submitted that the High Court has proceeded on erroneous premises. The cross-examination was conducted on 24.07.2006 and the application in question was filed on 01.08.2006. The application was filed in terms of Order 19 Rule 1 of the Code of Civil Procedure, 1908 (in short “CPC). There is no appearance on behalf of the respondent. The conclusion of the High Court, that the sole object in making the application was to protract the litigation, is not factually correct as the factual scenario goes to show. The earlier civil revision petition was disposed of on 29-03-2006,

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On 24-7-2006, son of the respondent (CW1) was examined after being summoned. According to the appellant, the occasion for making the application arose only after such examination, on account of the statements made denying the suggestions. The application was made immediately on 01-08-2006.”

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9. Further in Janachaitanya Housing Ltd., Vs. Divya

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Financiers^[2] the Division Bench of this Court while answering a reference as to whether an application for sending disputed signatures or writings for comparison and opinion of the Handwriting expert can be moved after entire trial and arguments held that no time can be fixed for filing applications seeking expert’s opinion and the Court before which application is filed would have discretion either to allow the application or to reject the same depending upon the facts and circumstances of the case. The Division Bench further held that if exigency so demands, such application can be filed even at a belated stage of arguments.

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10. In the instant case also the petitioner-defendant’s application under section 45 of the Indian Evidence Act, with a prayer to send Ex. A1 agreement of sale to the opinion of the handwriting expert as to the signature of the defendant filed at an appropriate stage. The learned trial Court, therefore, erred in holding that the application is filed at a belated stage. Further the evidence of handwriting expert though only an opinion evidence, the petitioner can make an application under section 45 of the Evidence Act to substantiate his version, as the opinion of the expert would throw light as to whether a particular document is genuine or forged and it will enable the Court to arrive at an appropriate decision as to the genuineness or otherwise of the document. The order passed by the learned trial Court, therefore, is unsustainable in law and is liable to be set aside in the present revision.

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11. For the foregoing reasons the order dated 19.06.2012

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passed by the Senior Civil Judge, Wanaparthy is set aside and I.A.No.280 of 2012 in O.S.No.70 of 2007 is allowed. The lower Court is directed to send Ex.A1 agreement of sale to the handwriting expert for comparing the signatures disputed and admitted of the defendant at the expenses of the revision petitioner/defendant.

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12. The Civil Revision Petition is, therefore, allowed without any order as to costs.

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_____________________ JUSTICE R.KANTHARAO

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13/02/2013 Ssv/IsL

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HONOURABLE SRI JUSTICE R. KANTHARAO

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CIVIL REVISION PETITION No. 3627 OF 2012

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Date: 13th February, 2013