Forensic and Handwriting Expert for an opinion- belated stage - The first reason assigned by the trial Court does not appear to be sound. It is not as if the application under Section 45 of the Act must be filed soon after the written statement is presented. There may be instances where the necessity to file such application would arise after the oral evidence of certain witnesses is over. In case, the party concerned is able to elicit necessary information or admissions during the course of evidence, the necessity to file an application under Section 45 of the Act may not arise. Nothing prevents the party to a suit to file an application under Section 45 of the Act, even at the stage of arguments."


The Hon'ble Sri Justice C.V.Nagarjuna Reddy

Civil Revision Petition No.28 of 2012

27-09-2012

Chityal Gundameede Ramalakshmamma      

Ediga Rangamma and 6 others  

^Counsel for the petitioner: Mr.U.Ramanjaneyulu

!Counsel for the respondents:   Mr.K.Sitaram

<Gist:

>Head Note:

?Cases referred:
2006 (4) ALD 333

Order:
        Feeling aggrieved by Order, dated 19-12-2011, in IA.No.870 of 2011 in
OS.No.349 of 2008, on the file of the Court of the learned Principal Junior
Civil Judge, Dhone, Kurnool District, the defendant in the suit filed this Civil
Revision Petition.
        Heard Sri U.Ramanjaneyulyu, learned Counsel for the petitioner, and Sri
K.Sitaram, learned Counsel for the respondents.
        The respondents filed the above-mentioned suit for specific performance of
agreement of sale, dated 17-05-2003.  In her written statement, the petitioner
has taken the plea that the suit document marked as Ex.A.1 is a rank forgery and
that the thumb impressions on the said document are not of her.  After
completion of the oral evidence on the plaintiff's side, the petitioner has
filed IA.No.870 of 2011 under Order XXVI Rule 10 (A)  and Section 45 of the
Indian Evidence Act, 1872, seeking sending of Ex.A.1- agreement of sale to the
Forensic and Handwriting Expert for an opinion on the genuineness of the thumb
impressions thereon after comparing with the specimen left thumb impression of
the petitioner.  This application was dismissed by the Court below on the sole
ground that it is belated.
        The learned Counsel for the petitioner placed reliance on the judgment of
this Court in Guru Govindu vs. Devarapu Venkataramana1  wherein this Court inter
alia held as under:
        "The trial Court dismissed the application of the petitioner on two
grounds. The first is that it was filed at a belated stage and the second is
that in view of existence of power in the trial Court under Section 73 of the
Act, it may not be necessary to accede to the request to send the documents to
an expert's opinion. The first reason assigned by the trial Court does not
appear to be sound. It is not as if the application under Section 45 of the Act
must be filed soon after the written statement is presented. There may be
instances where the necessity to file such application would arise after the
oral evidence of certain witnesses is over. In case, the party concerned is able
to elicit necessary information or admissions during the course of evidence, the
necessity to file an application under Section 45 of the Act may not arise.
Nothing prevents the party to a suit to file an application under Section 45 of
the Act, even at the stage of arguments."
        In the present case, the respondents have examined PWs.1 to 4, who are
attestors, the document writer and the scribe of Ex.A.1.  From the observations
of the lower Court, it appears that all the witnesses have deposed in favour of
the respondents and against the petitioner.  As observed by this Court in Guru
Govindu (cited supra), as the petitioner evidently failed to elicit anything
incriminating with regard to the genuineness of Ex.A.1, she has come out with
the present application.  I am, therefore, of the opinion that the petitioner is
entitled to seek the expert's opinion on the genuineness or otherwise of Ex.A.1
with reference to the thumb impressions attributed to her's.  On the facts and
circumstances of the case, I am, therefore, of the view that even though the
petitioner filed the application after closing of the evidence on the
respondent's side, the same should not have been rejected as belated.  As the
document contained thumb impressions and not the signature, it is not possible
for the Court to undertake comparison by itself and when the petitioner has come
out with her version at the earliest possible time in her written statement
itself wherein she has disputed the thumb impressions on Ex.A.1, it is
appropriate in the interests of justice that the petitioner is provided with an
opportunity to substantiate her plea by securing the opinion of the forensic
expert.  In this view of the matter, the Order under revision is set aside.  The
lower Court is directed to obtain thumb impressions of the petitioner in the
open Court and send Ex.A.1 along with such thumb impressions for comparison to a 
forensic expert.  The lower Court shall dispose of the suit, as expeditiously as
possible, immediately on receiving the opinion of the forensic expert.
        Subject to the above directions, the Civil Revision Petition is allowed.
        As a sequel, interim order, dated 06-01-2012, is vacated and CRPMP.No.38
of 2012 is disposed of.
 ______________________  
(C.V.Nagarjuna Reddy, J)
Date: 27-09-2012

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