THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4455 of 2009 (Dated 03.12.2009) Between: G.Padmaja W/o Prabhakar Reddy Srinivasa Agraharam, Nellore-2. …Petitioner-defendant A n d Yadla Venkata Subba Reddy R/o Chillakuru (v) , Gudur Mandal, Nellore District. ….Respondent-plaintiff THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4455 of 2009 ORDER: This Civil Revision Petition is directed against the order dated 01.9.2009 passed in I.A.No.272 of 2009 in O.S.No.151 of 2003 on the file of the Principal Junior Civil Judge, Gudur, whereby and whereunder, the learned Junior Civil Judge dismissed the application filed by the defendant under Section 45 of the Indian Evidence Act to send the suit agreement of sale to an expert for his opinion. 2. The petitioner is the defendant and respondent is the plaintiff in O.S.No.151 of 2003. The plaintiff filed the suit for specific performance of an agreement of sale said to have been executed by the defendant on 09.12.1982. The defendant filed written statement resisting the claim of the plaintiff. The defendant filed I.A.No.512 of 2007 under Section 45 of the Indian Evidence Act to send the agreement of sale dated 09.12.1982 to an handwriting expert for his opinion. Her application ended in dismissal on 27.2.2008. The relevant portion of the order dated 27.02.2008 passed by the trial Court in I.A.No.512 of 2007 reads as follows: “ The burden of proving pleadings of the plaint is initially on the plaintiff. It is for the plaintiff who sought for the relief of specific performance of agreement of sale to prove the genuineness of the said document. After plaintiff discharges his initial burden, then the burden shifts on to the defendant to disprove the case of the plaintiff. This can be done by adducing oral and documentary evidence. Expert opinion is only in support of oral and documentary evidence entered into by both parties during the course of trial. In the absence of any evidence and even before the trial is commenced, the petition of this nature is not desirable. Therefore, this petition is dismissed at this stage. However, petitioner is entitled to seek for sending documents for expert analysis at a later stage.” 3. The learned Junior Civil Judge settled the issues and the plaintiff commenced examination of his witnesses. It appears three witnesses have been examined on behalf of the plaintiff as Pws.1 to 3. When the case was coming for cross-examination of PWs.1 to 3, the defendant filed I.A.No.272 of 2009, under Section 45 of the Indian Evidence Act read with Section 151 CPC, to send the agreement of sale to the handwriting expert for his opinion. The plaintiff resisted the application. The learned trial Judge dismissed the said application primarily on the ground that a similar application, being I.A.No.512 of 2007 filed by the defendant ended in dismissal, by order dated 01.9.2009. The relevant portion of the order dated 01.9.2009 passed in I.A.No.272 of 2009 reads as hereunder: “ Under the Indian Evidence Act, there are two direct methods of proving the hand writing of a person: (a) By an admission of a person who wrote it (b) by the evidence of some witness who saw it being written by that person. In the present case, the petitioner-defendant came with the present petition, while the matter is coming for cross examination of Pws.1 to 3 and no revision is preferred against the orders passed in I.A.No.517 of 2007, the petitioner-defendant came with the present petition. In the above cited decisions it was clearly held that expert’s opinion is unworthy of credit unless corroborated and it is also well known that no two genuine signatures would be identical and it is almost impossible for a person to make two signatures exactly alike. Under the Evidence Act, there is specific mode of proving the document and as stated earlier in I.A.No.512 of 2007 the initial burden is on the plaintiffs to prove the document and then only the burden shifts on to the defendant to disprove the case of the plaintiffs. It is therefore from the above discussion, the facts and circumstances of the above decisions are not applicable to the present petition on hand and the suit is coming for cross examination of Pws.1 to 3, I am not inclined to allow this petition. Accordingly, this point is answered”. 4. The order passed in I.A.No.272 of 2009 is assailed in this revision. 5. The revision came to be admitted on 17.9.2009. An interim stay of further proceedings in O.S.No.151 of 2003 came to be ordered on the even date, vide C.R.P.M.P.No.6101 of 2009. The respondent entered appearance and filed C.R.P.M.P.No.7563 of 2009 with a prayer to vacate the interim order dated 17.9.2009. 6. When the vacate stay petition came up for consideration, with the consent of the counsel appearing for the parties, the revision itself is taken up for final disposal. 7. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent. 8. Learned counsel appearing for the petitioner-defendant submits that the trial Court dismissed the application filed by the petitioner primarily on the ground that the petitioner-defendant did not choose to challenge the order passed earlier in I.A.No.512 of 2007. A further submission has been made that I.A.No.512 of 2007 came to be dismissed on the ground that the application is premature. The relevant portion of the order passed in I.A.No.512 of 2007 has already been extracted in paragraph (2) supra. It is also contended by the learned counsel for the petitioner-defendant that the plaintiff commenced trial and examined three witnesses on his behalf as Pws.1 to 3 and when the case stood posted for cross examination of Pws.1 to 3, the petitioner filed the present application, in which case, it cannot be said that the application filed by the petitioner-defendant is premature. 9. Learned counsel appearing for the respondent-plaintiff submits that the application filed by the petitioner-defendant before commencement of examination of witnesses on her behalf is premature. A further submission has been made that the order passed in I.A.No.512 of 2007 has not been challenged by the petitioner-defendant, and in which case, it is impermissible for the petitioner-defendant to file a second application for a similar relief. 10. The points that arises for consideration in this revision are:- (i) Whether the order passed in I.A.No.512 of 2007 bars the petitioner-defendant from filing an application under Section 45 of the Indian Evidence Act to send the suit agreement of sale to an handwriting expert? (ii) Whether the application filed by the petitioner-defendant to send the document to an expert before the commencement of evidence on her behalf can be said to be premature? POINTS 1 & 2: 11. The order passed in I.A.No.512 of 2007 has been extracted supra. It is explicit from the order passed therein that the application filed by the petitioner-defendant under Section 45 of the Indian Evidence Act ended in dismissal on the ground that the trial has not yet been commenced. As on this day, the plaintiff examined three witnesses as Pws.1 to 3. Their evidence seems to be that the defendant executed the suit agreement of sale and signed thereon. The petitioner-defendant before cross-examination of Pws.1 to 3 moved the instant application under Section 45 of the Indian Evidence Act read with Section 151 CPC with a prayer to send the document to an expert. Such is the situation, it cannot be said that the application filed by the petitioner-defendant to send the agreement of sale, dated 9.12.1982 to an expert, is premature. The points are answered in favour of the petitioner- defendant. 12. Accordingly, this Civil Revision Petition is allowed setting aside the order dated 01.9.2009 passed in I.A.No.272 of 2009 in O.S.No.151 of 2003. Consequently, I.A.No.272 of 2009 stands allowed. It is to be clarified that cross-examination of Pws. 1 to 3 need not be deferred pending receipt of opinion from the handwriting expert. There shall be no order as to costs. ____________________________ B.SESHASAYANA REDDY, J Dt.03.12.2009 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.4455 of 2009 (Dated 03.12.2009)