Zahed Shareef vs Abdul Hasan

J. Sreenivas Rao, J

This civil revision petition is filed aggrieved by the orders dated 02.07.2024 passed by the Senior Civil Judge at Kamareddy in I.A.No.292 of 2023 in O.S.No.28 of 2017, invoking the provisions of Article 227 of Constitution of India.

The revision petitioner herein is the plaintiff and the respondents are defendants in O.S.No.28 of 2017. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit in O.S.No.28 of 2017 before the trial Court.

Brief facts of the case:

3.1. The plaintiff filed suit in O.S.No.28 of 2017 on the file of the Senior Civil Judge at Kamareddy seeking partition and separate possession of the suit schedule property and for cancellation of registered agreement of sale-cum-General Power of Attorney document bearing No.2084/2013, dated 12.03.2013 executed by defendant No.1 in favour of defendant Nos.2 and 3. In the said suit plaintiff filed application in I.A.No.292 of 2023 invoking the provisions of Sections 45 and 73 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Act’) to send Ex.A-7 i.e. Mutual Agreement dated 13.01.2012 to the Forensic Science Laboratory for opining that the signature on the above said document belongs to defendant No.1 or different person, on the ground that defendant No.1 is disputing the said document. Learned Senior Civil Judge, Kamareddy dismissed the above said application by its order dated 02.07.2024. Thus, the plaintiff filed the present revision petition.

Heard Sri D.Madhava Rao, learned counsel, representing Sri D.Raghavendar Rao, learned counsel for the plaintiff and Sri Kowturu Pavan Kumar, learned counsel for the respondent No.1.

5.1 Learned counsel for the plaintiff contended that on behalf of plaintiff, Ex.A-7 Mutual Agreement dated 13.01.2012 along with other documents were marked, and defendant No.1 denied execution of the said document. During the course of evidence of DW.1, he deposed that he has no objection for sending Ex.A7 for expert’s opinion. He further submits that to prove the said document plaintiff filed application to send Ex.A7 to hand writing expert. The Court below without properly considering the contentions of the plaintiff dismissed the said application on the ground that the plaintiff filed the application at belated stage, though there is no time limit stipulated to file the said application under Section 45 of the Act.

5.2 He further contended that the document Ex.A-7 was already marked as exhibit in the suit and the Court below ought to have decided the application as per the provisions of Section 45 of the Act on the other hand, Court below travelled beyond the scope of the application and held that Ex.A7 is unregistered document and the plaintiff has not taken any steps to pay the stamp duty and the same are contrary to law. In support of his contention, he relied upon the judgment in Janachaitanya Housing Limited vs. Divya Financiers 2008(4) ALD 339, wherein the Division Bench of the erstwhile High Court of Andhra Pradesh held that, there is no time limit for filing application under Section 45 of the Act for sending the disputed signature or writings to hand writing expert, for comparison and the same shall be left open to discretion of Court.

Per contra, learned counsel appearing on behalf of respondent No.1 contended that the plaintiff filed the application at the fag end of the case only to drag on the proceedings, as the evidence of the parties was closed long back and the matter was posted for arguments. The Court below after considering the contentions of the respective parties and after going through the Ex.A-7, has rightly passed the impugned order by giving cogent reasons and there are no grounds to interfere with the said order.

Having considered the rival submissions made by the respective parties and after perusal of the material available on record, it reveals that the plaintiff filed suit for partition, separate possession and cancellation of registered Agreement of Sale-cum-General Power of Attorney vide document bearing No. 2084/2013 dated 12.03.2013 executed by the defendant No.1 in favour of defendant Nos.2 and 3. In the said suit, plaintiff averred that plaintiff, defendant No.1 and defendant No.4 are close family friends, and due to said friendship, they have jointly purchased the suit schedule property through registered sale deed bearing document No.118/2012 dated 05.01.2012 from Osman Ali. He further averred that at the time of registration, plaintiff and defendant No.4 were not in the town, hence, the suit schedule property was registered in the name of defendant No.1 and they are in joint possession and enjoyment of the same with equal shares and the same is undivided property of plaintiff, defendant No.1 and defendant No.4. He further averred that defendant No.1 executed Ex.A7 in favour of plaintiff and defendant No.4 on 13.01.2012 in the presence of witnesses, wherein it is mentioned that the schedule property purchased by investing the amount equally, though the same was registered in the name of defendant No.1. Defendant No.1 executed Registered Agreement of Sale cum General Power of Attorney vide document No.2084/2013 dated 12.03.2013 in favour of defendant Nos.2 and 3 with an intention to defeat the rights of the plaintiff.

In the above said suit, defendant No.1 filed written statement on 02.06.2017 denying the allegations made in the plaint inter alia, contending that he never executed of Ex-A7 i.e., Mutual Agreement dated 13.01.2012, and the same is not genuine one.

It appears from the record that that the plaintiff filed suit in the month of February 2017 and the defendant No.1 filed written statement on 02.06.2017 denying the execution of the Mutual Agreement dated 13.01.2012. When the suit is posted for arguments, the plaintiff filed I.A. No.292 of 2023 to send Ex.A7 to the hand writing expert for opining that the signature on the above said document is belonging to defendant No.1 or not, even without filing any contemporary signatures. On the other hand, the plaintiff sought relief to send Ex.A7 to the hand writing expert for comparison after obtaining the signatures of the defendant No.1 in the open Court. Admittedly, Ex.A7 is pertaining to 2012 and plaintiff filed the application on 23.11.2023 even without providing contemporary signatures of the defendant No.1.

It is relevant to place on record that in Renu Devi Kedia vs. Seetha Devi 2004(6) ALT 429, the erstwhile High Court of Judicature, Andhra Pradesh at Hyderabad, held that, unless contemporaneous signatures are available for comparison with disputed signatures, no useful purpose would be served by sending disputed signatures and specimen signatures for comparison when the gap between those two signatures is nearly nine years as there is likely to be some change in signature or there is possibility of disguising style of signature.

The contention of the learned counsel for the plaintiff that for seeking expert opinion, there is no time limit provided to file application under Section 45 of the Act, relying upon the judgment stated (supra 1), is not tenable under law on the ground that the Full Bench of composite High Court for the States of Telangana and Andhra Pradesh in Bande Siva Shankara Srinivasa Prasad vs. Ravi surya Prakash and others2016(2) ALD 1 (FB), held in para No.12 that,

“The Division Bench judgment in Janachaitanya Housing Limited’s case (supra), was rendered upon a reference made by a learned Single Judge of this Court on the question as to whether an application under Section 45 of the Act of 1872 for expert opinion on disputed signatures could be entertained at a later stage of the suit, including when the suit was coming up for arguments after the entire trial. Contemporaneity of the signatures in dispute and the admitted signatures was not even in issue before the Division Bench. Upon due consideration of the case law on the point, the Division Bench answered the reference as under:

‘For the reasons aforementioned, we answer the reference thus: No time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court; for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of the each case’.”

In the case on hand, the Court below exercised the discretion and dismissed the application on the ground that the plaintiff has mfiled application at belated stage and Ex.A7, even without filing contemporary signatures. In so far as other reasons assigned by the Court below that Ex.A-7 document is not registered one and the plaintiff has not taken any steps to pay stamp duty, are not germane to decide the application under Section 45 of the Act. This Court is of the considered view that while deciding the nature of application under Section 45 of the Act, the Court below ought to have decided the application whether the party is entitled to seek expert opinion on the disputed document within the prescribed parameters as envisaged under the provisions of Section 45 of the Act and the Court below is not entitled to express any opinion on such document especially with regard to its genuineness or otherwise of Ex.A7 which it should have avoided till the hearing of the suit was completed.

It is relevant to place on record that in Nalnaru Shanmugam vs. Nalnaru Narayanaiah2013(1) ALD 301, the erstwhile High Court of Judicature, Andhra Pradesh at Hyderabad, held in para 7 that,

“7. The lower Court has, however, embarked upon the merits of the plea of the petitioner relating to the genuineness or otherwise of Ex.A1, which it should have avoided till the hearing of the suit was completed. Therefore, while declining to interfere with the order under revision, it is directed that the observations made by the lower Court on the merits of the case shall not influence the decision making by it in the main suit.”

Therefore, while declining to interfere with the order under revision, it is directed that the observations made by the Court below on the merits of the case shall not influence the decision making by it in the main suit.

With the above-mentioned observations, the civil revision petition is dismissed. No costs.

In view of dismissal of civil revision petition, interlocutory applications pending, if any, shall stand closed.