HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.2659 of 2010 ORDER:
This revision is directed against the order passed by the Senior Civil Judge, Zaheerabad in I.A.No.415 of 2009 in O.S.No.43 of 2008 on 28.04.2010 refusing to consider the request to send Ex.B1 document for examination by the Director, Forensic Science Laboratory, Hyderabad, for comparison with the admitted thumb impressions of the second defendant to be obtained in open Court.
The first defendant came up with this petition on behalf of the defendants on the ground of denial of thumb impression by the second defendant in her evidence when confronted with Ex.B1 while the plaintiff admitted her thumb impression in the document. The plaintiff opposed the request on the ground that this plea of execution of Ex.B1 by the second defendant was never taken in the written statement of the first defendant and this petition was filed at the stage of arguments just to drag on the proceedings. The second defendant also opposed the request on similar grounds.
The trial Court in the impugned order noted that the suit filed for partition of the suit properties between the plaintiff and the defendants, is at the stage of arguments, at which stage, the first defendant came up with this petition. The trial Court noted that while the opinion of an expert is also not conclusive on the question in controversy, the plea of execution of Ex.B1 by the second defendant was never taken earlier by defendants 1 and 3 to 5 in their written statement and no issue was framed on that aspect. Therefore, considering the petition to be not maintainable, the petition was dismissed without costs.
Defendants 1 and 3 to 5 challenge the said order in this revision contending that the trial Court ought to have seen that obtaining an opinion from the handwriting expert need not have been based on any specific plea in the written statement. The revision petitioners contended that the opinion of the expert is crucial for adjudication of the matter and hence, sought for reversal of the impugned order.
Sri K. Gopal, learned counsel for the revision petitioners is heard and the matter is being disposed of at the stage of admission without issuing notice to the respondents.
The observation of the trial Court in the impugned order that defendants 1 and 3 to 5 never pleaded in their written statement about the execution of Ex.B1 by the second defendant, is not factually in dispute and if there was no plea about the execution of Ex.B1 by the second defendant and if there was no issue framed on that aspect at the instance of defendants 1 and 3 to 5, no evidence could have been admitted or appreciated in respect of the execution of such a document, which was never referred to in the pleadings. The opinion of the trial Court in this regard cannot, therefore, be considered perverse. Apart from that, whatever be the opinion of an expert, it is still an opinion subject to appreciation by the Court on merit on the probabilities arising out of the totality of the evidence on record. It is another matter to claim that the plea of execution of Ex.B1 can still be taken by defendants 1 and 3 to 5 in the written statement and if at all before the disposal of the suit on merits, any such plea can become part of the pleadings of the parties and the subject of an issue to be tried and decided in the suit, it may be open to any of the parties to make an appropriate request concerning Ex.B1 document, but not on the facts and circumstances as of now. While expressing no opinion on such contingency which may or may not arise in future in the suit, the decision of the trial Court does not appear in any manner perverse or unreasonable on the facts before it and it cannot be interfered with in exercise of the restricted revisional jurisdiction of this Court.
Hence, the Civil Revision Petition is dismissed without costs.
G. BHAVANI PRASAD, J Date: 30.06.2010 sj