THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NOS.2269 AND 2271 OF 2010 COMMON ORDER Heard both the counsel. 2. Since the issue involved in both the revisions is one and the same, they are being disposed of by this common order. 3. C.R.P.No.2269 of 2010 is filed against the order dated 6.4.2010 passed by the court of Senior Civil Judge, Bodhan in I.A.No.457 of 2009 in O.S.No.23 of 2008. 4. C.R.P.No.2271 of 2010 is filed against the order dated 12.4.2010 passed by the court of Senior Civil Judge, Bodhan in I.A.No.73 of 2010 in O.S.No.17 of 2008. 5. The respondents in both the revisions filed suits in O.S.Nos.23 and 17 of 2008 respectively for recovery of the amount based on the promissory notes. The petitioners in both the revisions, who are the defendants in the suits, filed written statements and denied the execution of suit promissory notes and further alleged that signatures on the suit promissory notes are forged. During the trial court of the suit, the evidence on behalf of the plaintiffs/respondents is closed and the evidence of the defendants is also completed. At this stage, the petitioners filed the present I.As., under Order 26, Rule 10-A of C.P.C. to send the disputed signatures of the petitioners on suit promissory notes for comparison with the admitted signatures on written statement, vakalat and the specimen signatures to be taken in open court, to a handwriting expert, for opinion. By the impugned orders, the court below dismissed the I.As, on the ground that the said I.As. were filed at a belated stage and that the court can compare the disputed signatures with that of the admitted signatures under Section 73 of the Evidence Act and come to a conclusion. Aggrieved by the dismissal of the I.As., the present revisions are filed. 6. The learned counsel appearing for the petitioners vehemently contended that the court below is not justified in dismissing the I.As., filed for sending the disputed signatures to an expert for opinion, on the ground that the said applications were filed at a belated stage. He contended that the petitioners have taken a categorical stand in the written statement that the disputed signatures are forged. He stated that as soon as the evidence on behalf of the plaintiffs is completed and as the cause of action has arisen thereafter, the petitioners filed the present petitions for sending the disputed signatures to expert for comparison with the admitted signatures and to give his opinion. He contended that the court below is not justified in dismissing the applications on the ground of belatedness. He further contended that the court cannot assume the role of an expert and usually it shall be slow in comparing the disputed signatures with that of the admitted signatures. He stated that on the other hand, the opinion of the expert under Section 45 of the Evidence Act, will assist the court while exercising its power under Section 73 of the Evidence Act. Moreover, no prejudice would be caused to the respondents. He further contended that if the petitioners fail to seek the opinion of an expert, when they file appeals against the judgments of the trial court, in the appeal there is every likelihood of commenting that the petitioners did not take steps before the trial court for sending the disputed signatures to an expert for comparison and opinion. 7. In support of the above contentions that the court below is not justified in dismissing the petitions on the ground of belated ness and that it can compare the disputed signatures with the admitted signatures under Section 73 of the Act, he relied on the judgments of this court reported in JANACHAITANYA HOUSING LTD. v. DIVYA FINANCIERS[1], VELAGA SIVARAMA KRISHNA v. VELAGA VEERABHADRA RAO[2], P.VENKATRAMANA v. M.VENKAARAMANA[3], M.R.SWARAJYALAKSHMI vs. P.SATYANARAYANA[4] and GURU GOVINDU v. DEVARAPU VENKATARAMANA[5]. Relying on these judgments, the learned counsel sought to set aside the impugned orders and allow the revision petitions. 8. On the other hand, the learned counsel for the respondents/plaintiffs supporting the impugned orders submitted that in the present case, the plaintiffs have examined themselves to prove the suit promissory notes and they also examined the attestors, who have witnessed the petitioners signing the promissory notes. Therefore, when there is substantial evidence, the petitioner is not justified in asking to send the disputed signatures to an expert for comparison with admitted signatures and for giving his opinion. He contended that the disputed signatures are of the year 2005 and there are no admitted contemporaneous signatures for comparison and the admitted signatures on written statement and vakalat are of the year 2008 and there is every possibility of disguising the signatures on written statement and vakalat so as to look dissimilar to the disputed signatures on suit promissory notes. He further contended that had the petitioners sought for sending the disputed signatures to an expert for opinion even before the trial had begun, then there would have been opportunity for the plaintiffs to confront the opinion of the expert to the defendants in the evidence. But the evidence on behalf of the plaintiffs is closed and the evidence of the sole defendants, who executed suit promissory notes is also over and at this stage, sending the disputed signatures to an expert, would prejudice their case. He contended that sending the documents to an expert at this stage, would amount to giving an opportunity to the petitioners/defendants to fill up the lacunae. 9. In support of his contentions that there are no contemporaneous signatures for comparison and that no useful purpose would be served and that sending the disputed signatures to an expert after the closure of the evidence of the defendants would amount to filling up the lacunae, he relied on the judgments of this court reported in RENUKADEVI KEDIA v. SETHA DEVI[6] , PULAPARTI SANKUNTALA BAI v. MYGAPULA RAMANJANEYULU[7] and BHUPATHIRAJU RAVI KUMAR v. PALURI SURYA PRAKASA RAO(DIED) AND OTHERS[8]. Relying on the above judgments and in view of the above averments, he sought to dismiss the revisions. 10. In view of the above rival contentions, the point that arises for my consideration is whether the impugned orders dismissing the interlocutory applications filed for sending the disputed signatures to an expert for comparison and for giving opinion, after the closure of the evidence of the plaintiffs and the defendant; requires interference by this court under Article 227 of the Constitution of India? 11. There is no dispute that as per the decisions cited by the learned counsel for the petitioners that expert evidence under Section 45 of the Indian Evidence Act is not excluded from the purview of examination of the court and on the other hand, it will assist the court in exercising its power of comparison under Section 73. Further, there cannot be any hard and fast rule on this aspect and the ultimate endeavor of the Court shall be to do substantial justice to the parties. Belatedness also cannot the ground in rejecting the application filed for sending the disputed signatures to a handwriting expert for opinion and depending on the facts and circumstances, the court can itself send the disputed signatures to an expert for opinion. But indisputably, the facts and circumstances have to be considered by the court in each case, before exercising the discretion in ordering petitions filed under Section 45 of the Evidence Act for sending the disputed signatures to an expert for opinion and no straitjacket formula can be applied in all the cases. 12. In this regard, it is expedient to note the law laid down by the Division Bench of this court in JANACHAITANYA HOUSING LTD. v. DIVYA FINANCIERS (1supra) and that of Apex Court in A.NEELALOHITHADASAN NADAR v. GEORGE MASCRENE[9], wherein, the circumstances under which an opinion of an expert can be sought; are enumerated. 13. In Janachaitanya’s case (1) supra, the Division Bench held as under: “16. . . . No time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court; for exercising such discretion, when exigencies so demand, depending upon the facts and circumstances of each case.” 14. The Apex Court in A.Neelalohithadasan Nadar v. George Mascrene (9 supra) while dealing with dispute with regard to handwriting, held as under: “Handwriting maybe proved on admission of the writer or by the evidence of some witnesses in whose presence it was written. This is direct evidence. In the absence of such direct evidence, opinion of handwriting expert or of some who is familiar with the writing of the person is relevant. Thus besides direct evidence which of course is the best method of proof, the law makes two other modes also as relevant, i.e., a writing may be proved to be 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 compare the handwritings on a scientific basis. A third method is also provided by the Evidence Act in Section 73. It is comparison by the court with the writing made in the presence of the court or admitted or proved to be the writing of the person. The Court can apply its own observation to the admitted or proved writings and to compare them with the disputed one. This comparison depends on an analysis of the characteristics in the admitted or proved writings and of the same characteristics in large measures in the disputed writing. Even if there is the opinion of the expert on the handwriting, it is subject to the scrutiny by court. The expert’s opinion is not the final word. The court must see for itself whether it can safely be held that the two writings are of the same person. To this extent, court may play the role of an expert. The court can accept the disputed signature to be that of the witness when it is satisfied on its observation that it is safe to accept the same.” 15. From the above Division Bench (1 supra) of this court it is clear that exercise of discretionary jurisdiction by the court for sending the disputed signatures to an expert for opinion, depends when exigencies demand, based on the facts and circumstances of each case. In other words, it is held that no straitjacket formula can be fixed and depending on the facts and circumstances and to subserve the cause of justice, court has to exercise its discretion in a judicious manner whether to send the disputed signatures to an expert or not. Further, the Apex Court in Neelalohita’s case (9 supra) held that in the absence of any direct evidence, resort can be had to sending the disputed handwriting to an expert for opinion or to consider the evidence of a person familiar with the disputed handwriting, under Section 47 and the court can also exercise its power of comparison under Section 73 of the Act. However, it is to be noticed that it is always expedient for the court to take the assistance of an expert, while exercising its jurisdiction under Section 73 of the Act. 16. In view of the law laid down by the Apex Court and this court, it is clear that depending upon the facts and circumstances and the available of direct witnesses, who saw the executant signing the document, the impugned order needs to be examined. 17. In the present case, to prove the suit promissory notes, the plaintiffs got examined themselves and also got examined the attestors, who witnessed the petitioners signing on the suit promissory notes. Therefore, when there is evidence of direct witnesses, again sending the disputed signatures to an expert may not be desirable. 18. Another circumstance to be noticed is that the evidence of the defendants, who are alleged to have executed suit promissory notes, is completed. After their evidence is completed, seeking the court to send the disputed signatures to an expert for comparison with the admitted signatures and for expressing his opinion, is of not much use, since, they cannot be confronted with the opinion of the expert, as their evidence is over. Further, I do not find any compelling circumstances, at the present stage, to send the disputed signatures to an expert for opinion. 19. In similar circumstances, a learned single Judge of this court in PULAPARTI SANKUNTALA BAI v. MYGAPULA RAMANJANEYULU[10], held as under: “5. The stage at which, an application under Section 45 of the Act must be filed, has its own significance. If the dispute is, as to the execution of document, by one of the parties to the suit, the application must be filed before the evidence of such party is closed. The reason is that, the witness can be confronted with the document, together with the opinion obtained, in relation thereto, during the course of evidence. Sending a document for expert’s opinion, after the concerned witness has been examined in chief and cross; renders the very exercise, almost futile. The witness would not be available for being confronted with the evidence. If the matter is examined in this context, it is evident that the petitioner came forward with the instant application, after she has been examined as a witness, both in chief and cross-examination, after her evidence has been recorded, in its entirety. Sending a document for expert’s opinion, after the concerned witness, whose signature is in dispute, is examined, would, in most of the cases, amount to filing the lacuna. Strong and cogent reasons need to be furnished, for such a belated application.” 20. For the foregoing reasons, I do not find any justifiable grounds to interfere with the impugned orders and the revisions are devoid of any merits and they are accordingly dismissed. No costs. AVS ----------------------------- ---- JUSTICE G.CHANDRAIAH DATE:15.09.2010 [1] 2008(3) ALT 409 (DB) [2] 2009(1) ALT 379 [3] 2009(5) ALT 115 [4] 1999(1) ALT 222 [5] 2006(4) ALD 333 [6] 2004(5) ALD 700 [7] 2006(3) ALD 146 [8] 2009(3) ALD 405 [9] 1994 Supp(2) SCC 619 [10] 2006(3) ALD 146