HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 3731 OF 2011 DATED 28th SEPTEMBER, 2011. Between Somasi Venkata Krishna Pardhasaradhi …….Petitioner and M.Bhaskar Mehar Varaprasad ….Respondent. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 3731 OF 2011 ORDER: This Civil Revision Petition under Article 227 of the Constitution of India is filed aggrieved by the order dated 10.08.2011 passed in I.A.No. 785 of 2011 in O.S.No.103 of 2005 on the file of the learned Senior Civil Judge, Tanuku, West Godavari District. The respondent/plaintiff filed the aforesaid suit for recovery of alleged amount from the petitioner/defendant on the foot of two promissory notes and also on equitable mortgage created by the borrower( petitioner/defendant) by depositing his title deeds. While so, the petitioner/defendant after receipt of the summons filed his written statement on 1.12.2005 alleging that the signatures on the aforesaid suit documents did not belong to him and they were forged documents. On 1.12.2005 issues were settled and subsequently trial in the suit had begun on 28.4.2009. After the plaintiff’s evidence, the defendant’s evidence commenced on 5.7.2011 on which day, the petitioner/defendant filed the impugned application under Section 45 of the Indian Evidence Act seeking to send the aforesaid suit documents for comparison of signatures appending thereon with his admitted signatures. The trial Court, upon hearing both sides, dismissed the said interlocutory application holding that there were no bona fides on the part of the petitioner/defendant in filing the present application after long lapse of five years while taking the plea of forgery and that the present application was only to drag on the suit proceedings. Hence the present revision petition. The learned Counsel for the petitioner/defendant submitted that the Court below ought not to have dismissed the impugned application merely on the ground of delay and latches. He submitted that the impugned application was filed only at the threshold of the commencement of the evidence of petitioner/defendant and delay in filing the same at that stage was not a ground to dismiss the same. He placed strong reliance on the judgment of the learned Single Judge of this Court in Kolli Ranga Rao Vs. Kolli Varalakshmi Janani {2011 (4) ALT 252}. On the other hand, the learned Counsel for the respondent/plaintiff submitted that the impugned application was filed at belated stage. He argued that the petitioner/defendant had not cross-examined P.Ws. 1 and 2 on the aspect of forgery and therefore the impugned application is liable to be dismissed. He asserted that the impugned application was filed only to protract the suit proceedings and that the trial Court rightly dismissed the impugned application. He placed reliance on the judgment of this Court in Civil Revision Petition No. 2507 of 2005, dated 12.08.2005. Perused the case file. Sections 45 and 73 of the Indian Evidence Act are the relevant provisions for consideration of the issue in this case. Section 45 of the Indian Evidence Act, 1872 reads as follows: 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 finger impressions are relevant facts. Such persons are called experts. Under the above Section, a document can be sent to the handwriting expert for the purpose of comparison of handwriting or signatures on the disputed document. Section 73 of the Act reads as follows: 73. Comparison of signature, writing or seal with others admitted or proved.-In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also, with any necessary modifications, to finger impressions. While there is no doubt that the Court can compare the disputed handwritings with the admitted handwriting, however, such comparison by Court without the assistance of any expert has always been considered hazardous and risky. {See :State VBs. Pali Ram (1979 Crl.J 17)} Whenever a party disputes the signature on a particular document, two remedies are open to him, either to request the court to compare itself the signatures or to file an application seeking to send the document to the expert for comparison. When the petitioner opted to file an application to send the document to the handwriting expert, no prejudice would be caused to either party. After comparison, if the similarities of the disputed signature and the admitted signatures are very negligible, then the Court can formulate its opinion with the assistance of the expert's report and by comparing the signatures whether the report has to be accepted or not. But, if an opportunity is denied to the party and if the matter is carried to the Appellate Court, there is every likelihood of commenting that he did not avail the opportunity of filing an application for sending the document for handwriting expert's opinion, if he is so sure that the disputed signature does not belong to him. In the case on hand, when the evidence of defendant commenced, he filed the impugned application, which cannot be said to be a belated stage in the conduct of suit proceedings. There may be instances where the necessity to file such application would arise after the oral evidence of certain witnesses is over. In case the party concerned is able to elicit necessary information or admissions during the course of evidence, the necessity to file an application under Section 45 of the Act may not arise. Nothing prevents the party to a suit to file an application under Section 45 of the Evidence Act even at the stage of arguments. The decision relied on by the learned Counsel for the petitioner/defendant fully supports the above view vis- a-vis the case of the petitioner. However, the decision relied on by the learned Counsel for the respondent/plaintiff has no application to the facts of the case on hand. That was a case where the party who raised an objection regarding forgery in the written statement allowed the evidence to go on and the application under Section 45 of the Evidence Act came to be filed at the fag end of the suit proceedings. In those circumstances, this Court observed that in as much as the evidence was already adduced by both the parties in support of their claims, necessity of such application did not arise. In view of the above facts and circumstances, I am of the view that it is expedient to send the suit documents to the expert for comparison at the request of the party, in the interests of justice, which would not cause any amount of prejudice to the respondent/plaintiff and therefore, the order of the lower Court is liable to be set aside, which I do so. Consequently, the order under revision is set aside and I.A.No. 785 of 2001 in O.S.No. 103 of 2005 on the file of the learned Senior Civil Judge, Tanuku, stands allowed. The Civil Revision Petition is accordingly allowed. There shall be no order as to costs. ------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 28th September, 2011. Msnro