Whether the variance in the signature of 1st defendant in Ex.A1 with that of his admitted signature on the documents executed after three years can be a ground for dismissal of suit particularly when plaintiff adduced other evidence to prove Ex.A1”?

HIGH COURT OF ANDHRA PRADESH

WEDNESDAY ,THE EIGHTH DAY OF NOVEMBER

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B SYAMSUNDER

SECOND APPEAL NO: 933 OF 2011

Between:

1. Pydimarri Venkateswarlu, S/o. Seetharamaiah,

R/o. ISakadonka Road, Ranganayakulupet, Nellore

SPS Nellore District.

...PETITIONER(S)

AND:

1. Pydimarri Jalamma (Died) Rep.by his Wife M.Jagadamba

House Wife

R/o.Arepalli Village,

Karimnagar (Mandal & district)

2. Pydimarri Venkata Narayana, R/o. Kanigiri Town, Prakasam District.

...RESPONDENTS

Counsel for the Petitioner(s): SRINIVAS KARRA

Counsel for the Respondents: B ANJANEYULU

The Court made the following: ORDER

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 S.A.No.933 of 2011

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

S.A.No.933 OF 2011

Between:

Pydimarri Venkateswarlu, S/o.Seetharamaiah,

R/o.Isakadonka road, Ranganayakulupet,

Nellore, SPSR Nellore District.

 ….Appellant/Plaintiff.

 Versus

1. Pydimarri Jalamma (Died)

2.Pydimarri Venkata Narayana,

 R/o.Kanigiri town,

 Prakasam District.

….Respondent/Defendant.

DATE OF JUDGMENT PRONOUNCED: 08.11.2023

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 S.A.No.933 of 2011

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

1. Whether Reporters of Local Newspapers

 may be allowed to see the Judgment? Yes/No

2. Whether the copy of Judgment may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Judgment? Yes/No

________________________

BANDARU SYAMSUNDER, J

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 S.A.No.933 of 2011

* HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

+ S.A.No.933 OF 2011

% Dated 08.11.2023

# Between:

Pydimarri Venkateswarlu, S/o.Seetharamaiah,

R/o.Isakadonka road, Ranganayakulupet,

Nellore, SPSR Nellore District.

 ….Appellant/Plaintiff.

 Versus

1. Pydimarri Jalamma (Died)

2.Pydimarri Venkata Narayana,

 R/o.Kanigiri town,

 Prakasam District.

….Respondent/Defendant.

! Counsel for the Appellant : Sri Karra Srinivas

^ Counsel for the

 Respondent : Sri B.Anjaneyulu

 Sri G.Sai Narayana Rao

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 S.A.No.933 of 2011

< Gist:

> Head Note:

? Cases referred:

1. C.A.No.Nil/2022, dt.22.09.2022

(Arising out of S.L.P.(C) No.8736/2016)

2. AIR 2010 SC 806

3. (2015) 5 SCC 223

This Court made the following:

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 S.A.No.933 of 2011

HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

SECOND APPEAL NO.933 of 2011

JUDGMENT:

The appellant is the plaintiff in O.S.No.6 of 1995 on the

file of Principal Senior Civil Judge’s Court, Nellore. The 1

st

respondent/1st defendant died during pendency of the suit,

and the 2nd respondent/ 2

nd defendant added as legal

representative of the 1

st respondent/ 1

st defendant in the suit.

Originally, the suit was instituted by the appellant against the

1

st respondent for recovery of a sum of Rs.1,87,880/- with

interest and costs, and after the death of the 1st

respondent/1st defendant, sought decree against the estate of

the 1st defendant in the hands of the 2nd respondent/2nd

defendant.

2. The appellant and the 2

nd respondent hereinafter referred

to as plaintiff and 2nd defendant as arrayed before the trial

Court.

3. The plaintiff instituted the suit against the 1st defendant

for recovery of a sum of Rs.1,87,880/- with interest against

the estate of the 1st defendant in the hands of the 2nd

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 S.A.No.933 of 2011

defendant. It is the contention of the plaintiff that the 1st

defendant, who is no other than his sister had borrowed a sum

of Rs.1,22,000/- from him and agreed to repay the same with

interest at 18% per annum, and executed Ex.A1/promissory

note on 10.12.1991, who agreed to repay the debt after selling

the house property stands in her name, settled by her

husband. The plaintiff submits that the husband of the 1st

defendant died, and thereafter he went to Kanigiri to attend

funerals and returned to Nellore, and then the 1st defendant

executed a sale deed in favour of his relatives as if she sold

the house property for Rs.1,50,000/-. The plaintiff said to be

demanded the 1st defendant to repay his debt, which she has

not repaid.

4. The 1

st defendant filed written statement, admitting the

relationship with the plaintiff, but pleaded that Ex.A1/suit

promissory note is forged one. She submits that for medical

treatment of her husband, she went to Madras along with her

adopted son/2nd defendant, and there was no necessity for her

to borrow money from the plaintiff.

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 S.A.No.933 of 2011

5. The 2

nd defendant, who impleaded as per Orders in IA

No.271 of 2003, dated 25.08.2003 as one of the defendant,

resisted the claim of the plaintiff. He also took the plea of

forgery of suit promissory note, though pleaded that he is

adopted son of the 1st defendant.

6. Basing on the above pleadings, the trial Court settled the

following issues:-

1. “Whether the suit promissory note is true?

2. Whether the plaintiff is entitled to recover the suit

amount as prayed for?

3. To what relief

4. Whether the 2

nd defendant is liable to discharge the suit

claim”?

7. The parties went to trial. On behalf of the plaintiff, PW.1

to PW.4 were examined. Exs.A1 to A10 and Exs.X1 to X3 were

marked. On behalf of the 2

nd defendant, DW.1 to DW.3 were

examined. Exs.B1 to B14, and Ex.X4 were marked.

8. On appreciation of oral and documentary evidence, the

trial Court dismissed the suit filed by the plaintiff by believing

the opinion of DW.3/Handwriting Expert, who gave

Ex.X4/report that Ex.A1/promissory note is a forged one.

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9. Against the Decree and Judgment passed by the trial

Court, the plaintiff presented AS.No.11 of 2006 on the file of

Principal District Judge, Nellore which was dismissed by the

First Appellate Court, and confirmed the Decree and Judgment

passed by the trial Court.

10. In these circumstances, the present Second Appeal is

presented.

11. I have heard learned Counsel for the appellant/plaintiff

Mr.Karra Srinivas, through virtual hearing. There was no

representation for the 2nd respondent/2nd defendant.

12. The learned Counsel for the appellant/plaintiff would

submit that the 1st defendant for medical treatment of her

husband borrowed money from the plaintiff, who is no other

than her brother, but failed to repay the same in spite of

repeated demands, due to that the plaintiff instituted the suit,

which erroneously dismissed by the trial Court, and confirmed

by the Appellate Court. He would further submit that the trial

Court and the Appellate Court have gave much weightage to

the evidence of DW.3/Handwriting Expert ignoring the

evidence of PW.2 and PW.3, who are scribe and attestor of

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 S.A.No.933 of 2011

Ex.A1/promissory note. It is the contention of the learned

Counsel for the appellant/plaintiff that the opinion of the

Expert, much weight cannot be given when direct evidence is

available regarding signatures in Ex.A1. It is also the

contention of the learned Counsel for the appellant/plaintiff

that no contemporaneous documents were sent to compare

the signature of the 1st defendant in Ex.A1, due to that Ex.X4/

opinion of the Handwriting Expert, and the evidence of DW.3

cannot be considered in view of evidence of PW.2 and PW.3/

scribe and attestor of promissory note. He prays to allow the

appeal and decree the suit.

13. This Second Appeal was admitted on the following

substantial question of law raised in the Memorandum of

Grounds of Appeal, which reads as under:

1. “Whether the Expert opinion regarding similarities of

the signature of 1st defendant is conclusive proof and

whether the Courts below are justified in dismissing

the suit basing on the Expert opinion on the disputed

signature particularly when the plaintiff proved

execution of Ex.A1/suit promissory note by examining

scribe and attestor as PW.2 and PW.3?

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2. Whether the Judgment of lower Appellate Court is not

perverse in not appreciating the additional evidence

filed regarding proof of means of plaintiff particularly

when the defendant did not dispute the same?

3. Whether the variance in the signature of 1st defendant

in Ex.A1 with that of his admitted signature on the

documents executed after three years can be a ground

for dismissal of suit particularly when plaintiff adduced

other evidence to prove Ex.A1”?

14. As per Section 100 of CPC, this Court can interfere with

the Judgment of the Appellate Court, if it is satisfied that case

involves a substantial question of law. A finding of fact

recorded by the Appellate Court is binding on this Court,

unless there is any error of law in such finding. Even a wrong

finding of fact is not sufficient to constitute a question of law.

15. In Chandrabhan (Deceased) Through LRs. And Others –

Appellants vs. Saraswati and Others – Respondent(s) in Civil

Appeal No.NIL of 2022 (Arising out of S.L.P.(C) No.8736 of

2016) Judgment dated 22.09.2022, the Hon'ble Apex Court

explained the scope of interference in Second Appeal under

Section 100 of CPC at Para 33 of the Judgment, which reads as

under:

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"33. The principles relating to Section 100 of the CPC relevant for

this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a

document is question of fact. But the legal effect of the terms of a

document is a question of law. Construction of a document

involving the application of any principle of law, is also a question of

law. Therefore, when there is a misconstruction of a document or

wrong application of a principle of law in constructing a document,

it gives rise to a question of law. (Emphasis supplied)

(ii) The High Court should be satisfied that the case involves

a substantial question of law, and not a mere question of law. A

question of law having a material bearing on the decision of the

case (that is, a question, answer to which effects the rights of

parties to the suit) will be a substantial question of law, if it is not

covered by any specific provisions of law or settled legal principle

emerging from binding precedents and involves a debatable legal

issue. A substantial question of law will also arise in a contrary

situation, where the legal position is clear, either on account of

express provisions of law or binding precedents, but the Court

below has decided the matter, either ignoring or acting contrary to

such legal principle. In the second type of cases, the substantial

question of law arises not because the law is still debatable, but

because the decision rendered on a material question, violates the

settled position of law.

(iii) The general rule is that the High Court will not interfere

with findings of facts arrived at by the Courts below. But it is not an

absolute rule. Some of the well-recognised exceptions are where (i)

the Courts below have ignored material evidence or acted on no

evidence; (ii) the Courts have drawn wrong inferences from proved

facts by applying law erroneously; or (iii) the Courts have wrongly

cast the burden of proof. When we refer to "decision based on no

evidence," it not only refers to cases where there is a total dearth

of evidence, but also refers to any case, where the evidence, taken

as a whole, is not reasonably capable of supporting the finding."

16. Both the Courts have relied on the evidence of DW.3/

Handwriting Expert, and his opinion marked as Ex.X4 and

dismissed the suit. Now, it would be beneficial to quote Section

45 of the Indian Evidence Act, which reads as under:

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 S.A.No.933 of 2011

“45. Opinions of experts:- When the Court has to form an

opinion upon a point of foreign law, or of science, or art, or as to

identity of handwriting or finger-impressions, the opinions upon

that point of persons specially skilled in such foreign law, science or

art, or in questions as to identity of handwriting or fingerimpressions are relevant facts.

Such persons are called experts”.

17. It is also settled law that the evidence of Handwriting

Expert is not a conclusive proof, it can be relied on basing on

independent and reliable corroboration. The Hon’ble Apex

Court in Ramesh Chandra Agrawal vs. Regency Hospitals

Limited1

explained Expert evidence and its admissibility and

laid as under:

i) The first and foremost requirement for an expert

evidence to be admissible is that it is necessary to hear the

expert evidence. The test is that the matter is outside the

knowledge and experience of the lay person.

ii) The expert must be within a recognized field of experience.

iii) The evidence must be based upon reliable principles.

iv) The expert must be qualified in the particular discipline.

v) It must be shown that the expert has made a special study

or acquired a special experience in the subject.

vi) The expert must place before the Court all the materials,

together with his reasons for coming to the particular

conclusion.

vii) Expert evidence is really of an advisory character.

1

AIR 2010 SC 806

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 S.A.No.933 of 2011

viii) The duty of an expert is to furnish the Judge with the

necessary scientific criteria for testing the accuracy of the

conclusions so as to enable the Judge to form his independent

judgment by the application of these criteria with facts proved

by the evidence of the case.

18. Evidence of the identity of hand-writing receives

treatment in three sections of the Indian Evidence Act. They

are Sections 45, 47 and 73. Handwriting may be proved on

admission of the writer, by the evidence of some witness in

whose presence he wrote. This is direct evidence and if it is

available the evidence of any other kind is rendered

unnecessary. The Evidence Act also makes relevant the

opinion of a hand-writing expert or of one who is familiar with

the writing of a person who is said to have written a particular

writing. Thus besides direct evidence which is of course the

best method of proof, the law makes relevant two other

modes. A writing may be proved to be in the handwriting of a

particular individual by the evidence of a person familiar with

the handwriting of that individual or by the testimony of an

expert competent to the comparison of handwritings on a

scientific basis. A third method is comparison by the Court with

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 S.A.No.933 of 2011

a writing made in the presence of the Court or admitted or

proved to be the writing of the person.

19. While appreciating the evidence of DW.3/Expert, the

observation of the trial Court is as under:

“On careful perusal of Exhibit X-4, I feel that DW-3 has given

quite cogent reasons to arrive at best conclusion that the

questioned signatures are traced forgeries. Though the

opinion and reasons of an Expert is not direct evidence, the

opinion under Exhibit X-4 can be taken into consideration

while assessing the direct evidence adduced by the plaintiff

before this Court. The evidence of PW-2 and PW-3 cannot be

weighed in support of the evidence of PW-1 to hold that

Exhibit A-1 was executed by the first defendant for

Rs.1,22,000/-, because, there are discrepancies with regard

to the denomination of currency notes covered by Exhibit A-1

and other circumstances which lead to disbelieve the evidence

of PW-2 and PW-3. The evidence of PW-4 is not sufficient to

hold that Exhibit A-1 was executed by first defendant in

favour of the plaintiff. Since there were civil litigations

pending between PW-1 and the husband of first defendant

prior to Exhibit A-1, his sole testimony cannot be weighed to

decree the suit in his favour. The opinion of Handwriting

Expert under Exhibit X-4 can be taken as a circumstance of

this case. But the suit cannot be dismissed only on the opinion

of DW-3 in view of the authorities submitted by the learned

Advocate for plaintiff. I feel that the authorities on which the

learned Advocate for plaintiff has relied on are no way useful

to the case of the plaintiff, as the facts of the case are entirely

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 S.A.No.933 of 2011

different, and in the instant case as there is no sufficient

evidence on the side of plaintiff to believe the execution of

Exhibit A-1 purported to have been made by the first

defendant. On perusing of the admitted signature of first

defendant on Exhibit A-10 with the disputed signatures

purported to have been made by first defendant on Exhibit

A-1, one can say that the letter “ ” in the signatures on

Exhibit A-1 is not similar to the letter “ ” in the signature of

first defendant made on Exhibit A-10. So also there are no

fundamental similarities between the standard signatures and

the questioned signatures”.

20. The learned trial Judge also discussed the evidence of

PW.2 and PW.3/scribe and attestor and held that they are not

the independent witnesses and they are interested witnesses,

and there are discrepancies in their evidence with regard to

denomination of currency notes said to be lent to the 1st

defendant by the plaintiff.

21. A perusal of the evidence of DW.3/Handwriting Expert,

which is not in dispute that he is qualified in examining the

disputed hand-writings, who gave his opinion, marked as

Ex.X-4 with cogent reason, which rightly held by the trial

Judge, confirmed by the learned Appellate Judge. DW.3/

Handwriting Expert also compared the contemporaneous

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signatures with admitted signatures of the 1st defendant, who

marked the same as ‘S8 to S14’, pertaining to the periods

1991 and 1992, and gave his opinion that those admitted

signatures of the 1st defendant are not similar with the

signature of the executant in Ex.A1/promissory note.

22. The learned trial Judge also invoked Section 73 of the

Indian Evidence Act and compared the disputed signature in

Ex.A1 with admitted signature, and gave cogent reason for his

findings. The learned trial Judge also discussed the evidence of

DW.1 and Exs.B3 to B14/credit bills containing the signature of

the 1st defendant, which supports the contention of the 2nd

defendant that he accompanied his adopted father to the

hospital for medical treatment, which falsifies the contention of

the appellant/plaintiff that he accompanied him to the hospital.

23. Both the Courts have rightly appreciated the evidence of

DW.3/Handwriting Expert and Ex.X4, his report by discarding

the evidence of PW.2 and PW.3, who are close associates of

the plaintiff, and relied on the evidence of Handwriting Expert

and dismissed the suit. DW.3/Handwriting Expert also

compared the contemporaneous signatures, marked as ‘S8 to

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 S.A.No.933 of 2011

S14’ (which documents are also marked as Exs.B7, B9, B10,

B11, B12, B13 and B14) while giving his opinion with regard to

disputed signature.

24. This Court is of an opinion that the Judgment of the

learned Appellate Court is not perverse, which rightly

confirmed the well reasoned Judgment of the trial Judge while

dismissing the suit, and confirmed the Decree and Judgment

passed by the trial Court. Accordingly, the substantial question

of law is answered in favour of the 2nd defendant. Basing on

material and evidence, both Courts have rightly appreciated

the evidence and dismissed the suit filed by the plaintiff.

25. In the result, the Second Appeal is dismissed. In the

circumstances of the case, both parties are directed to bear

their own costs. Consequently, pending miscellaneous

petitions, if any, shall stand closed. The Interim Orders

granted if any, shall stand vacated.

___________________________

JUSTICE BANDARU SYAMSUNDER

Dt:08.11.2023.

Bsv

LR Copy.

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 S.A.No.933 of 2011

HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

S.A.No.933 of 2011

Date: 08.11.2023

Bsv

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