secs. 45, 73 of Evidence Act r/w Or. 26, rule 10 of C.P.C. = Petition for sending the document for expert opinion ? = the application was dismissed on three grounds, namely, that the same was filed at a belated stage, that in the plaint, the petitioners have not denied the signatures on the receipts and that PW.1 during his cross-examination admitted the signatures but denied the contents thereof and hence the burden is on the petitioners to prove that they have never received any amounts under those receipts. This order, however, will not preclude the petitioners from requesting the Court to compare the contents of Exs.B5 and B6 and the signatures on Ex.B10. If such a request is made, the Court below shall exercise its discretion under Section 73 of the Act and render its findings thereon. Subject to the above observations, the civil revision petition is dismissed.

published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=8811
THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY          

Civil Revision Petition No.5388 of 2011

27.01.2012

P.Seshagiri Rao and another

P.Soma Sekhar Rao and another

^Counsel for the Petitioners:  Ms.Manjiri S.Ganu
                                                                     
!Counsel for respondents:  Sri R.A.Achutanand
     
? Cases referred:
1. AIR 1979 SC 14
2. 2008-AWC-4-3790
3. AIR 2008 AP 163

ORDER:
This civil revision petition arises out of order, dated 28.09.2011, in I.A.No.79
of 2011, in O.S.No.37 of 2003, on the file of the learned Judge, Family Court,
Secunderabad.
The petitioners filed the suit against the respondents for declaration of their
title and also for cancellation of the judgment and decree, dated 12.07.2002, in
O.S.No.1203 of 2001, on the file of the learned XI Additional Junior Civil
Judge, Secunderabad and for consequential injunction.  The evidence has
commenced in the year 2008.
The respondents have confronted petitioner No.1,
who was examined as PW.1 with Exs.B5 and B6, which were the purported receipts
issued by the petitioners.
After closure of the evidence on the petitioners'
side and during the course of evidence of the respondents' side, Ex.B10 was
marked through the chief examination of DW.2 in June, 2010.
The petitioners
filed I.A.No.79 of 2011 for sending Exs.B5, B6 and B10 for the opinion of an
expert as to the genuineness of the contents of Exs.B5 and B6 and the signatures
on Ex.B10.  The respondents have resisted the said application.  
The Court below
on considering the respective pleadings and the material on record dismissed the
said application.
A perusal of the order of the Court below would show that
the application was
dismissed on three grounds, namely,
 that the same was filed at a belated stage,
that in the plaint, the petitioners have not denied the signatures on the receipts and 
that PW.1 during his cross-examination admitted the signatures but denied the contents thereof and 
hence the burden is on the petitioners to prove
that they have never received any amounts under those receipts.
At the hearing, Ms.Manjiri S.Ganu, learned counsel for the petitioners,
strenuously contended that the Court below has committed serious error in
rejecting the petitioners' application as it has failed to exercise discretion
vested in it under Section 45 of the Indian Evidence Act, 1872 (for short 'the
Act').  In support of her submission, she has placed reliance on the judgments
of the Supreme Court in State (Delhi Administration) v. Pali Ram1, Damara
Venkata Murali Krishna Rao v. Gurujupalli Satvathamma2 and a Division Bench of
this Court in M/s.Janachaitanya Housing Ltd., Ameerpet v. M/s.Divya Financiers3.
Sri R.A.Achutanand, learned counsel for the respondents, seriously opposed the
above submissions of the learned counsel for the petitioners.  He submitted that
the application was filed in order to prolong the litigation, that the
petitioners were well aware of the receipts which were passed on by them as
evident from their legal notice got issued as far back as 18.12.2001.  He has
further stated that having allowed the suit filed by his clients for specific
performance of agreement of sale to be decreed ex parte, the petitioners filed
the present suit for cancellation of the judgment and decree in the said suit
and that they have not shown any diligence whatsoever in filing the application
for sending the disputed documents for expert's opinion.
I have carefully considered the submissions of the learned counsel for the
parties.
As far as the judgments on which reliance was placed by the learned counsel for
the petitioners are concerned, there is no quarrel on the legal proposition that
an application for sending the disputed documents for expert's opinion cannot be
dismissed on the sole ground of delay.  If the Court feels that the expert's
opinion is needed for adjudicating on the dispute relating to the genuineness of
the documents or their contents, it can send the document for the expert's
opinion at any stage.  However, the Courts refrain from exercising such
discretion if it forms an opinion that the parties are not diligent in filing
the said applications or that there are no bona fides behind filing such
applications.
In the instant case, the petitioners pleaded that they have handed over the
registered sale deed to respondent No.1 i.e., elder brother of petitioner No.1,
to construct building thereon by arranging payment to him, that respondent No.1
made an attempt to construct the building in the said site in the name of the
petitioners and that thereafter, they arranged the funds.  It is their further
case that respondent No.1 misused the offer by handing over the title deeds to
respondent No.2 in order to grab the land taking advantage of permissive
possession.  Before filing the said suit, the petitioners caused a legal notice
issued on 18.12.2001, wherein they have categorically stated that they have not
received any consideration in respect of half of the total extent of land
purchased through the document of 1984, much less they have agreed to sell the
same and that both the respondents might have used the signed papers of the
petitioners intended for other purposes as receipts in favour of respondent
No.2.  They have denied execution of any receipt.
It is thus evident that the petitioners were aware of existence of certain
receipts, the genuineness of which were denied much prior to the filing of the
suit.  However, the plaint is conspicuously silent on the genuineness or
otherwise of the receipts.  As noted above, Exs.B5 and B6 whose contents are
disputed, were introduced in evidence by the respondents, while cross-examining
PW.1 on 15.08.2009.  No application was made for sending the said documents for
the opinion of the expert within a reasonable time thereafter.  It is only after
DW.2 has introduced Ex.B10 through her chief examination that the present
application is filed.  Moreover, it is the case of the respondents that in the
suit in which an ex parte decree was passed, these receipts were filed as
exhibits.  These facts would clearly disclose that the petitioners are well
aware of the existence of the disputed documents for a long time, but for the
reasons best known to them, they did not come with an application at an earlier
point of time.  I am, therefore, of the opinion that the application filed by
the petitioners is not only belated but the same lacks bona fides.
In the above circumstances, I am of the view that the Court below has not
committed any jurisdictional error warranting interference of this Court in
exercise of its supervisory jurisdiction under Article 227 of the Constitution
of India.
This order, however, will not preclude the petitioners from
requesting the Court to compare the contents of Exs.B5 and B6 and the signatures
on Ex.B10.  If such a request is made, the Court below shall exercise its
discretion under Section 73 of the Act and render its findings thereon.
Subject to the above observations, the civil revision petition is dismissed.
As a sequel to dismissal of the civil revision petition, C.R.P.M.P.No.7632 of
2011 shall stand disposed of as infructuous.

C.V.NAGARJUNA REDDY, J    
27th January, 2012

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