Yashwanth Rathode v. Inagala Venkateshwarlu

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD FRIDAY THE TWENW NINTH DAY OF DECEMBER TWO THOUSAND AND TWENryTHREE PRESENT THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL CIVIL REVISION PETITION NO: 3381 OF 2023 Between:

1. Yashwanth Rathode, , S/o.Bheem Singh Rathode Aged 60 years, Occ: Retd. SCCL Employee Manuguru, R/o.T.26, Bombay Colony of Manuglifu N/o.Flat No.1 08, Ward No.29, Veerabhadraeswar Colony Ramnagar, VijayapurJalnagar, Kamataka State.

...Petitioner/Petitioner/Defendant

AND lnagala Venkateshwarlu, S/o.Pullaiah Aged 60 years, Occ . Mechanic Fi/o.610-63, Ganesh Basthi, Kothagudem Town Bhadradri Kothagudem District. ...RespondenU RespondenUPlaintiff Petition filed under Article 227 of. the Constitution of lndia, againsU.aggrieved by the Order dt.'12.09.2023 passed in l.A.No.0S of 2023 in O.S.No.'126 ot 2O2O on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Kothagudem.

lA NO: 1 OF 2023 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings including trial in O.S.No.126 of 2020 on the file of the Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Kothagudem, pending disposal of the above C.R.P. Counsel for the Petitione(s): SRl. P SHRAVAN KUMAR GOUD Counsel for the Respondents: ERIGI GANESH The Court made the following: ORDER EI

THE o ,BL s T]U .V.VEN IL REVISI N PET o N o ORDER:

This Civil Revision Petition, under Article 227 of lhe Constitution of India, is directed against the order dated 12'09'2023 passed in I'A'No'05 of 2023 in O.S.No.126 of 2O2O on the file of the Court of the Principal lunior Civil Judge-cum-Judicial Magistrate of First Class' Kothagudem' wherein and whereby the petition filed by the petitioner under Section 45 of the Evidence Act to send the Ex'A'l promissory note along with his admitted signatures available in vakalatnama and written statement to the handwriting experf for exemption and opinion was dismissed' Heard Sri P.

Shravan Kumar Goud, learned counsel for the petitioner and Sri Erigi Ganesh, learned counsel for the respondent' The respondent herein being plaintiff instituted the suit O'S'No'126 of 2020 against the petitioner herein for recovery of money basing on the suit promissory note. The petitioner herein filed his written statement in the said suit. Now, after lapse of four years the petitioner came up with I.A.No.

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') sencj the same to the expert for comparison, by reiying upon the decision of the High Court of Andhra pradesh in Tadi Suryanarayana v. Myravarapu Rama venkata Krishna Narsimha Raol. The triar court further observed that the petitioner fired the petition at ftIe fag-end of the suit i.e. when the suit is coming for arguments. The contention of the rearned counser for the petitioner is that the triar court ought to have seen the reason for not firing the apprication much earlier because the petitioner has taken a plea in his written sfatement that the suit promissory note is a concocted document and hence there is no possibility of changes in the stgnatures within three years' It is his further contention that since the very suit itserf is based on the Ex.A.

1 suit promissory note, and when the petitioner,s signatures are avairabre 6n vakarat and written statement which were fired in the year 2020 itself, the_ reasoning of the court below. that *re changes in the signatures may be varied and therefore they cannot be sent for opinion is absolutely based on assumptions and presumptions.

Y comparison of the disputed signatures to meet the ends of the justice' He further contended that if such method is followed no prejudice would be caused to either side and on the other hand it would enable the Court to arrive at a right and definite conclusion '

On the other hand, the learned counsel for the respondent while opposing the present petition submitted that the trial Court has rightly dismissed the petition filed by the petitioner and that the petitioner has filedthel.A.beforethetrialCourtonlytoprotractthelitigation. No doubt, there is no time limit fixed under Section 45 of the EvidenceActtosendthedocumenttoanexpertforcomparison'butthe petitionershouldofferaplausiblereasoninordertoestablishhisstand.In theinstantcase,thepetitionerhasnotfiledanycontemporarydocuments containing his admitted signatures to send the document for comparison' So the principle laid down in Tadi Suryanarayana case (1 supra) relied upon by the learned trial Court would amply fortify the conclusion arrived llu at bY the learned triat Coutt'

Moreover, it is not for the Oe8ndant to take out an application underSec.45ofthelndianEvidenceActastheonusisonlyontheplaintiff to prove that the signature found in the suit promissory note is the signature of the defendant since the defendant hasl '.i. .i

n \ his written statement. However, Section 73 of the Indian Evidence Act also empowers the court to compare such handwriting in order to come to its own concrusion. Further the opinion of the handwriting expert arone is not the deciding factor in finding out the genuineness of the promissory note and the same courd be tested by examining the attesting witnesses and also in some other modes and it is the duty of the praintiff to estabrish his case by retting in sufFrcient oral and documentary evidence. It is onry when the Court forms an opinion that the assistance of an expert is essential to enable it to arrive at a just determination of the issue of the identity of the disputed writing, then the court may take the assistance of the expert, that too after the remedy available under section 73 of the Evidence Act being exhausted.

In catena of decisions this court has deprecated the practice of filing applications for examination of documents by handwriting experts at a late stage and thereby protracting and holding up the proceedings. Having regard to the facts and circumstances and particularly keeping in view that the necessary evidence was already adduced by both the parties in support of their craims, the court berow in exercise of its discretion concluded that it is not necessary to send Ex.A1 promissory note for expert's opinion. such discretion exercised by the court berow on

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appreciation of the evidence already adduced cannot be held to be perverse or vitiated on account of any extraneous considerations. As noted above, the application for sending the disputed signatures to an expert for comparison with the admitted signatures cannot be ordered as a matter of course, but it has to be considered keeping in view the facts and circumstances of a particular case. Since such discretion was exercised by the Court below in a judicious manner, the impugned order in declining to send Ex.Al promissory note for opinion of handwriting expert cannot be said to be vitiated by any patent error of fact or law. 10 The order of the lower couft in the circumstances is quite valid and does not call for interference from this court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India. 11 Accordingly, the civil revision petition is dismissed. No costs. Miscellaneous petitions if any pending in this civil revision petition shall also stand dismissed.

sdr- Mohd Sanaullahuh Ansari --''id5srlNT REclsrRAR <./.- \r /TTRUE COPY// SECTION OFFICER To,

1. The Principal Junior Civil Judge-cum-Judicial Magistrate of First Class at Kothaqudem , A;';'a'ii""';Rl P sHRAVAN KUMAR couQllgate [oPUC] ;. 6nE & i; ;rii Lnrcr enursn Advocate [oPUC] . Two CD CoPies AAJBP o,rle

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HIGH COURT DATED: 2911212023 oR 1 H E S,,'4 /+'

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ORDER

PAr(iHE-O CRP.No.3381 of 2023 THE CIUL REVISION PETITION IS DISMISSED - WITHOUT COSTS .r 6\3\*