HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISON PETITION Nos.4832 & 4828 of 2011 DATED 30th DECEMBER, 2011 BETWEEN Beena Devi …Petitioner in both CRPs And Vankayala Rama Nageswara Rao and anr ….Respondents in both CRPs HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISON PETITION Nos.4832 & 4828 of 2011 COMMON ORDER: These two Civil Revision Petitions can be disposed of by way of this common order as the parties thereto are same and they arise from one and the same suit. Civil Revision Petition No.4832 of 2011 is directed against the order dated 03.03.2011 passed by the learned Principal Junior Civi Judge, Anakapalle, in I.A.No.1050 of 2010 in O.S.No.392 of 2004. Civil Revision Petition No.4828 of 2011 is directed against the order dated 03.03.2011 passed by the learned Principal Junior Civi Judge, Anakapalle, in I.A.No.1051 of 2010 in O.S.No.392 of 2004. The revision petitioner herein is the first defendant and the second respondent herein is the second defendant in the aforesaid. The first respondent herein is the plaintiff who instituted the said suit seeking eviction of the defendants from the suit schedule property, and consequential delivery of vacant possession thereof. For the sake of convenience, the parties herein are referred to as per their array before the trial Court. Both the defendants jointly filed a written statement denying the claim of the plaintiff. The second defendant was examined as D.W.1 and cross-examined on 23.07.2010. Thereafter, it appears that the suit was posted to 02.08.2010 for further evidence of the defendants. As the defendants were called absent, it was adjourned to 06.08.2010, 10.08.2010, 01.09.2010, 02.09.2010 and finally on 14.09.2010. As the defendants did not choose to adduce further evidence, the evidence on their side was closed and the suit was posted for arguments on 23.09.2010. As the matter stood thus, on 23.09.2010 the first defendant filed two applications in the suit, namely, I.A.No.1050 of 2010 under Section 151 CPC seeking to reopen the suit in order to adduce her evidence inter alia on the ground that she could not adduce her evidence as she went to her native place – Siyana of Rajasthan State and came back on 16.09.2010 and that she has good grounds to defend her case; and I.A.No.1051 of 2010 under Section 45 of the Evidence Act read with Section 151 CPC requesting to send Ex.A.1 lease agreement dated 01.08.2002 for comparison of signatures appearing therein with that of her admitted signatures to a Handwriting Expert at Forensic Science Laboratory, Hyderabad, on the premise that her signatures appearing on the Ex.A.1 lease agreement were forged. Both these applications came to be dismissed by the impugned orders. Hence, these two Civil Revision Petitions. Heard the learned counsel on side. The learned counsel for the revision petitioner/first defendant submitted that it has been specifically pleaded in their written statement that the signature of the first defendant appearing on Ex.A.1 lease agreement was forged one. He further submitted that the first defendant has good grounds to defend her case. He also pointed out that as the first defendant was out of station having gone to her native place, she could neither adduce her evidence nor appear before the trial Court on the relevant dates and therefore the applications filed by her may be allowed. He therefore prayed that both the revision petitions deserve to be allowed. In support of his contentions, he placed reliance on a Judgment of this Court in KOLLI RANGA RAO v. KOLLI VARALAKSHMI JANANI [2011 (4) ALT 252]. On the contrary, the learned counsel for the first respondent/plaintiff submitted that the first defendant failed to appear on several occasions before the trial Court and did not even choose to adduce her evidence and that after a long lapse of time, more particularly once the suit is posted for arguments, both the applications came to be filed with a view to protract the suit proceedings and nothing else. He further submitted that the trial Court considered these applications in the proper perspective and rightly dismissed the same which do not warrant interference by this Court in these revision petitions. Perused the case files scrupulously. As can be seen from the material placed on record and impugned orders, it is clear that the first defendant did not appear before the trial Court on more than five occasions consecutively, once D.W.1, who was the second defendant, was cross-examined on 23.07.2011 and when the suit was coming up for further evidence of defendants. Under the circumstances, the suit was posted for arguments on 23.09.2010. However, on 23.09.2010 the first defendant filed two applications in the suit - one seeking to reopen the suit for adducing her evidence and the other seeking to send her admitted signatures appearing on Ex.A.1 lease agreement to a Handwriting Expert in order to expose the alleged fraud played by the plaintiff against her in instituting the suit. Apparently, there is delay on her part in filing those applications. However, her explanation for the said delay in approaching the Court and her failure to attend the Court on more than five occasions, as pointed out by the trial Court under the impugned orders, is that as she had been to her native place, namely, Siyana in Rajasthan State, she could not do so. But her plea consistently is that her signature appearing on Ex.A.1 lease agreement was forged and that she has good grounds to defend her case. Looking into the facts and circumstances of the case, as noticed hereinabove and with the object of doing substantial justice to the parties to suit, a reasonable cause has been shown by the first defendant in her failure to attend the Court and in filing the above two applications. Further, technicalities of law cannot prevent the Court from doing substantial justice. Therefore, I am of the firm view that both the applications filed by her are liable to be allowed by ordering payment of costs to the other side as dismissal the applications of this nature on technical grounds of delay would not, in any way, advance the interests of justice but admittedly, result in failure of justice. In KOLLI RANGA RAO v. KOLLI VARALAKSHMI JANANI (referred to supra), a learned Judge of this Court in a similar fact situation took a similar view relying on the Judgment of the Supreme Court as well as the Judgments of this Court and held thus: “17. It is clear that, the respondents have taken seven or eight adjournments for adducing their evidence and for the delay caused by them, the Court ought to have imposed reasonable costs. While passing orders on interlocutory applications, generally, the Court should avoid making comments on the merits of the case and as to whether the evidence adduced by one party is trustworthy or not and whether the evidence of any particular witness is shaken or not, such observations appear to be not necessary and moreover, create a reasonable apprehension in the mind of a party and therefore, it is always better to avoid such comments. Though the power of the Courts to send a document to an expert under Section 45 of the Act is a discretionary power, the Courts have to exercise the discretion in a just and reasonable manner and if there are any lapses on the part of the party, the Court may consider those lapses but merely because there are some latches or some delay on the part of a party, that should not come in the way of rejecting their claim. Point No.1 is answered accordingly.” Ultimately, the learned Judge allowed the Civil Revision Petition in that case and consequently interlocutory applications filed by the revision petitioners therein were also allowed, of course, by awarding costs to the other side. Coming to the case on hand, by reopening the evidence, as can be seen from the record, no prejudice would be caused to the plaintiff. Further, even if the disputed signature appearing on Ex.A.1 lease agreement with that of the admitted signature of the first respondent is sent to a Handwriting Expert as sought for by her, equally no prejudice would be caused to the plaintiff for the simple reason that an opinion of such expert cannot be conclusive and it is only an important piece of evidence to hold whether Ex.A.1 lease agreement is forged one or otherwise. For the foregoing reasons, both the Civil Revision Petitions are allowed. Consequently, I.A.No.1050 and 1051 of 2010 in O.S.No.392 of 2004 filed before the trial Court shall stand allowed. Keeping in mind the fact that the first respondent failed to appear before the trial Court on more than five occasions, she is directed to pay costs of Rs.1,000/- (Rupees one thousand) in each application, in all Rs.2,000/- (Rupees two thousand), to the other side. ------------------------------------ -- JUSTICE ASHUTOSH MOHUNTA Dated 30th December, 2011. Msnro