HON'BLE SRI JUSTICE RAMESH RANGANATHAN CIVIL REVISION PETITION No.979 of 2010 ORDER: This revision is filed against the order of the Junior Civil Judge, Narasanapeta, in I.A. No.34 of 2010 in O.S. No.89 of 2010 dated 05.02.2010. I.A. No.34 of 2010 is a petition filed under Section 45 of the Evidence Act by the petitioner requesting the Court to send the suit promissory note dated 07.07.2005 to an expert for comparison of the signature on Ex.A-1 with the admitted signatures of the petitioner-defendant. In the order under revision, the Court below observed that the petitioner, having taken a specific plea of forgery in his written statement, had failed to file an application under Section 45 of the Evidence Act before settlement of issues; the suit was coming up for further evidence of the defendant, and at that stage the application was belatedly filed; the petitioner had not stated any reasons as to why he did not file the application earlier; and, if the petition is allowed, it warrants denovo trial which was not permissible. The Court below further observed that the application was filed only to drag on the suit proceedings; the suit promissory note related to the year 2005 and contemporary periodical signatures of the petitioner-defendant were not available for comparison; the I.A. was posted for arguments, the respondent Counsel had reported that he had no objection to the petition being allowed subject to deposit of the suit amount by the petitioner; the petitioner’s Counsel did not controvert the submissions of the Counsel for the respondent and he had not submitted that the petitioner was ready to deposit the suit amount; in Ex.B-1, the petitioner-defendant had admitted that he had to pay money to the wife of the respondent-plaintiff which showed that Ex.A-1 was a forged document not warranting comparison. While an application to send a document for comparison by a handwriting expert need not be ordered as a matter of course, and these are all matters in the discretion of the Court adjudicating the suit, exercise of discretion must be in accordance with law and not on the whims and fancies of the authority exercising such discretion. In an application filed by the petitioner-defendant, under Section 45 of the Evidence Act, the Court below exceeded its jurisdiction in recording a finding that the signature on the document was that of the petitioner; in holding that failure on the part of the petitioner to deposit the suit amount would justify refusal of the request to send the document to a handwriting expert. The petitioner has sought comparison of the signature in the pronote with that of his signature in the vakalat and the written statement. It is not even the case of the respondent-plaintiff that the signatures on the vakalat and the written statement are not that of the petitioner-defendant. As such the observations of the Court below that there were no contemporaneous signatures is wholly unjustified more so as the pronote relates to the year 2005, and the vakalat and the written statement of the petitioner- defendant were filed just two years thereafter in the year 2007. The Court below has not relied on any provision in the Indian Evidence Act, or in the Civil Procedure Code, in support of its conclusion that such an application ought to have been made only before issues are framed. Sri Uma Sankar Lokanadham, Learned Counsel for the petitioner, would rely on a Division bench judgment of this Court, in M/s. Janachaitanya Housing Ltd. v. M/s. Divya Financiers[1], in support of his submission that even at the stage of hearing, if the Court feels that it must seek the help of an expert in coming to a proper conclusion, it can send the document for comparison by a handwriting expert after requiring the party concerned to meet the expenditure. Since the Court below has exceeded its jurisdiction in passing the order under revision, I consider it appropriate to set aside the order, and remand the matter back for its consideration afresh. The Court below shall, within two months from the date of receipt of a copy of this order, hear both parties and pass orders afresh in the I.A. in accordance with law and, only thereafter, proceed with the hearing of the Suit. The Civil Revision Petition is, accordingly, allowed. ____________________________ RAMESH RANGANATHAN, J Date: 23.07.2010 Note: Furnish copy by one week. B/o MRKR [1] AIR 2008 AP 163