[HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.735 OF 2013 Dated 25-7-2014 Between:
Vepada Appalaraju.
And:
Virothu Lakshmi.
..Petitioner.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.735 OF 2013 ORDER:
This petition is filed against order dated 29-1-2013 in I.A.No.444 of 2012 in O.S.No.119 of 2010 on the file of Junior Civil Judge, Kothavalasa.
The revision petitioner is defendant in the above suit and he filed the above referred application to send the disputed document dated 6-10-2008 marked as Ex.A.1 to handwriting expert for comparison of the signature on promissory note with the admitted signatures of the defendant and the said application is dismissed on the ground that there is a delay in filing the application and that contemporaneous signatures are not available to the period of pronote and therefore, the relief of sending the document to expert is denied. Aggrieved by the same, present revision is preferred.
Heard both sides.
The main argument advanced on behalf of the petitioner is that these two grounds namely delay and contemporaneous signatures are not available in view of the decisions of this court in CHITYALGUNDAMEEDE RAMALAKSHMMA v. EDIGA RANGAMMA (DIED) BY
[1]
LRS ( ) , JANACHAITANYA HOUSING LIMITED v.
[2]
DIVYA FINANCIERES, ( ) AND SUTHRAYA PRASADA
[3]
RAO v. BOGATHI JAYA RAMI REDDY ( ).
The main objection of the advocate for respondent is that this petition is filed after examining the scribe and witnesses and the attestors of promissory note and the present petition is filed only to protract the case and to gain time. It is further submitted that there is no consistent plea in the written statement on the other hand two inconsistent pleas are taken at one place. It is further contended that the petitioner has stated at one place that blank papers are obtained at another place, it is contended that signature on suit promissory note is a rank forgery. It is further submitted that trial court has rightly dismissed the application and therefore, there are no grounds to interfere with the findings of the trial court.
I have perused the material papers, copy of plaint, written statement and also order of the trial judge.
As defendant, petitioner can take any number of pleas and he specifically pleaded in para four of the written statement that he never executed suit promissory note and it is a rank forgery. He took plea that signature on promissory note does not belong to him and there is no privity of contract between himself and defendant. Here admitted fact is defendant was employee under plaintiff for some time.
Now as seen from the order of trial judge, the grievance of the plaintiff appears to be that defendant after receiving legal notice under Ex.A.3 changed pattern of signature intentionally to avoid payment under promissory note and therefore, in the vakalat and written statement which are filed subsequent to receipt of legal notice, he has changed his pattern of signature and by sending those documents for comparison with the promissory note, no purpose would be served because the defendant intentionally changed his signing pattern. The said objection is not tenable and it is for the hand writing expert to examine and clarify whether there is any change of signing pattern or the same person wrote those letters both on promissory note and vakalat and it cannot be decided on presumptions and assumptions. If the plaintiff is aggrieved with Ex.A.3 which can not be considered for comparison, he can as well insist the court to send those documents which plaintiff feel genuine signatures of plaintiff also along with documents defendant prefer for comparison and a consolidated report can be collected from the handwriting expert in order to arrive at a just decision in the matter.
As rightly pointed out by the advocate for petitioner the question of delay or the contemporaneous signature is not a ground for refusal of relief of sending document for hand writing expert and these two aspects have to be considered on the facts of each case. Here as seen from the material, after completion of plaintiff’s evidence, defendant has come forward and immediately filed this petition. The grievance of the plaintiff is that without proceeding with the defendants side evidence, this application is filed. Now the suit is of the year 2010 and this revision is filed on the year 2013. Had the plaintiff agreed for sending documents to an expert by this time, trial must have been completed and because of this revision, this matter remained at the same stage where it was left at the time of filing of this application.
Learned advocate for respondent interfered while the matter is under dictation and submitted that her plea has to be recorded saying that defendant has to first prove and without proving forgery, he cannot be allowed to avail this relief.
There is no such procedure prescribed as submitted, therefore, this argument in my view is highly objectionable and particularly, when matter is under process of dictation, making this kind of interference is unwarranted. Recording this, I leave it there.
Now coming back to the case, specific plea of the defendant is that signature on the promissory note is not that of him and when a forgery plea is taken, it is for the plaintiff to prove its execution and after evidence on plaintiff side is over, the defendant has to prove his plea. Now he has filed the petition to send documents to expert and it is one of the mode of proving forgery plea which can not be denied.
On a consideration of the material on record, I feel that it is a fit case where document has to be sent to the expert and trial court grossly erred in refusing the relief though there is specific plea of forgery.
For these reasons, the impugned order dated 29-1- 2013 in I.A.No.444 of 2012 in O.S.No.119 of 2010 on the file of Junior Civil Judge, Kothavalasa, is set aside and the trial court is directed to send the document Ex.A.1 along with the admitted signatures of defendant as suggested by plaintiff and defendant and call for a report from the handwriting expert and after receipt of expert report, give liberty to both sides to adduce evidence with reference to the expert report.
Accordingly, this Civil Revision Case is allowed.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 25-7-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CIVIL REVISION PETITION No.735 OF 2013 Dated 25-7-2014
[1] 2012 (6) ALD 755
[2] 2008 (3) ALT 409 (D.B)
[3] 2009 (2) ALT 509