HON’BLE SRI JUSTICE R.KANTHA RAO C.R.P.NO.1971 of 2005 DATED: 05.03.2010 BETWEEN: Mohd. Abdul Hakeem died per LRs and others .. Petitioners And Naiyaz Ahmed and others .. Respondents * THE HON’BLE MR. JUSTICE R. KANTHA RAO + C.R.P.NO.1971 of 2005 % Dated:05.03.2010 # Mohd. Abdul Hakeem died per LRs and others .. Petitioners And $ Naiyaz Ahmed and others .. Respondents ! Counsel for the Appellants: Mr. Wasim Ahmed ^ Counsel for the Respondent : Mr P.Vidyasagar <GIST: > HEAD NOTE: ? Cases HON’BLE SRI JUSTICE R.KANTHA RAO C.R.P.NO.1971 of 2005 ORDER:- This civil revision petition is filed under Article 227 of the Constitution of India against the order dated 18.03.2005 passed by the Senior Civil Judge, Vikarabad, Ranga Reddy District in I.A.No.51 of 2005 in O.S.No.4 of 19992. 2 The revision petitioners are the petitioners/defendants in the interlocutory application filed before the Court below. The first respondent filed the suit for specific performance of the agreement to sell dated 22.01.1986 against the deceased defendant before the Court below and after the death of the first petitioner as well as the first respondent their legal representatives were brought on record. The trial Court decreed the suit and the same was confirmed by the first appellate Court. However, learned single judge of this High Court in S.A.No.1053 of 2002 set aside the decree passed by both the Courts below framed five issues and remanded the suit for trial with a direction to dispose of the same on merits expeditiously after giving opportunity to both the parties to lead their evidence. After the conclusion of the evidence on either side, the revision petitioners/defendants filed I.A.No.51 of 2005 before the trial Court under Section 45 of the Indian Evidence Act seeking the indulgence of the Court to send the signatures of PW.3 on his deposition along with the signatures of the plaintiff on the plaint and registered G.P.A. dated 23.04.1997 to the handwriting expert for comparison and his opinion. The said petition was dismissed by the trial Court on 18.03.005. Feeling aggrieved, the revision petitioners, who are the defendants 2 to 12 in the suit filed the present revision. 3. I have heard the learned counsel appearing for the revision petitioners as well as the respondents. 4. The point which arises for consideration in this revision petition is whether the trial Court is justified in declining to send the signatures of PW.3 along with that of the plaintiff on the plaint and registered G.P.A. to the hand writing expert for the purpose of his opinion or whether it requires any interference in this revision petition? 5. The purpose for filing the application under Section 45 of the Indian Evidence Act by the revision petitioners is stated to be that at the time of adducing evidence after remand the plaintiffs sought to examine a wrong person as plaintiff by resorting to impersonation and to establish the said fact the opinion of the hand writing expert about the signature of PW.3 was necessary. It was contended by the respondents before the trial Court that the said application was made with an evil design to protract the litigation and to harass them, which was accepted by the learned trial Court for the reasons mentioned in its order. 6. To appreciate the merit in the revision petition, the background facts of the case have to be examined. 7. The suit was filed by the respondents in the year 1992. The trial Court decreed the suit in the year 2001 and the same was confirmed by the first appellate Court in the year 2002. This Court rendered judgment in the second appeal in the year 2004 remanding the matter for trial afresh after framing five issues. In the course of the trial before the learned Court below, the respondents examined the plaintiff as PW.3 in chief, thereafter, the revision petitioners filed I.A.No.451 of 2004 on 13.10.2004 seeking the trial Court to pass order eschewing the evidence of PW.3 on the ground that in view of the issue No.3 framed by this Court, viz. whether examination of G.P.A. holder as P.W.1 would be sufficient even in the absence of the plaintiff”. While disposing of the second appeal the respondents cannot be permitted to examine the plaintiff and the said petition was dismissed on merits on 30.11.2004. Further the revision petitioners filed I.A.No.509 of 2004 on 19.11.2004 seeking the trial Court to obtain thumb impressions of PW.3 and send them along with the thumb impression on General Power of Attorney executed by the plaintiff on 23.04.1997 to finger print expert for comparison and his opinion. The said petition was also dismissed on 04.12.2004. The revision petitioners having preferred revision against the order in I.ANos.451 and 509 of 2004 withdrew them subsequently on the ground that the trial Court allowed their petitions to reopen the case and to cross examine PW.3. Thereafter, the revision petitioners also cross examined PW.3 at length. 8. As such, the revision petitioners as rightly contended by the learned counsel appearing for the respondents have been filing one petition or the other and thereby preventing the learned trial Court from disposing of the suit. Moreover, if really PW.3 is fictitious person, the said fact can be established by other means, such as cross examining PW.3, adducing positive evidence regarding the false identity of PW.3 and the like. Even if the opinion of the expert indicates that the signatures of PW.3 on his deposition. and the signatures of the plaintiff on the vakalat and the Registered General Power of Attorney are not identical, his evidence being only an opinion evidence it is not obligatory on the part of the Court to rely on the said evidence. This apart, the Court can arrive its own opinion by comparing the respective signatures in exercise of its power under Section 73 of the Indian Evidence Act. As rightly pointed out by the learned trial Court, though the suit was filed in the year 1992 and the trial of the suit was commenced in the year 1997, the revision petitioners did not take the plea that PW.3 General Power of Attorney holder by using fictitious name of the plaintiff resorted to all the litigations and they also did not take any such steps seeking opinion of the handwriting/finger print expert till the closure of evidence in the suit by the Court below after the remand by this Court in the second appeal. Whenever a signature is disputed, it is not obligatory on the part of the Court to send the same for the expert’s opinion at the request of a party if there is possibility of establishing the execution of a particular document or identity of an individual by some other means. The Court would be perfectly justified in refusing to accept the request of the party to send the signature for expert’s opinion if it considers that the disputed fact can be proved by means of some other evidence. 9. For the foregoing reasons, absolutely there are no bona fides on the part of the revision petitioners in filing an application seeking expert’s opinion as per the provisions of the Section 45 of the Indian Evidence Act and the same is rightly rejected by the learned trial Court by an elaborate and reasoned order which this Court is not inclined to interfere with by exercising it’s power under Article 227 of the Constitution of India. 10. The civil revision petition is, therefore, dismissed with costs. _______________ R. KANTHA RAO, J Date: 05.03.2010 Note: L.R copy to be marked b/o kvrm