*THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY + C.R.P.No.1735 of 2009 %Dated 08.06.2010 # 1. Korivi Chinna Poli Reddy and another ……….. Petitioners $ Dadiboina Guraiah ………… Respondent ! Counsel for Petitioners : Mr. V.R.Reddy Kovvuri ^ Counsel for Respondent : Mr.G.V.Raghava Reddy < GIST: > HEAD NOTE: ? Cases referred:Nil HONOURABLE SRI JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION NO: 1735 of 2009 ORDER: The respondent filed O.S.No.308 of 2002 in the Court of Junior Civil Judge, Badvel, against he petitioners for the relief of perpetual injunction. Subsequently, the suit was amended to add the prayer of specific performance also. The petitioners pleaded that they did not execute the agreements of sale and that they do not have any right over the suit schedule property. The trial Court decreed the suit. Aggrieved thereby, the petitioners filed A.S.No.22 of 2007 in the Court of Additional Senior Civil Judge, Fast Track Court, Badvel. In the appeal, the petitioners filed I.A.No.14 of 2008 under Section 45 of the Evidence Act (for brevity ‘the Act’) with a prayer to send the agreements of sale dated 21/05/2000 and 27/06/2001 marked as Exs.A-2 and A-3 in the suit for expert’s opinion. The respondent opposed the application. Through its order dated 19/06/2008, the lower appellate Court dismissed the IA. Hence, this revision petition. Sri V.R.Reddy Kovvuri, learned counsel for the petitioners, submits that a specific plea was raised by the petitioners herein in their written statement filed in the suit to the effect that they did not execute the agreements of sale and that they do not have any right over the suit land. He contends that his clients did not feel the necessity of filing the application under Section 45 of the Act on account of the scanty evidence adduced by the respondent to prove the agreements of sale. He contends that no prejudice would be caused to the respondent in case the expert’s opinion is obtained vis-à-vis Exs.A-2 and A-3. Sri G.V.Raghava Reddy, learned counsel for the respondent, on the other hand, submits that the filing of an application under Section 45 of the Act at the stage of appeal is a rare phenomena and it is only in exceptional cases where the handicap, if any, suffered by the applicant at the stage of trial is proved, that the application can be allowed. He contends that except raising a plea denying the signatures on Exs.A-2 and A-3, the petitioners did not take any steps at the stage of trial. The suit which was initially filed for the relief of injunction simplicitor was transformed into one of specific performance and injunction. The petitioners, no doubt, raised a specific plea that they did not execute the agreements of sale at all. If they wanted to prove that the agreements of sale are not genuine or that they are fabricated, they ought to have taken necessary steps instead of the simple denial. They have chosen to file an application under Section 45 of the Act only at the stage of appeal. The sending of a document for expert’s opinion at the stage of appeal would result, in a situation, akin to receiving of additional evidence. The principles underlying Rule 27 of Order XLI CPC govern the situation. It is only when an effort made by a party at the stage of trial to adduce the evidence, or to invite expert’s opinion, did not fructify, or where in spite of due diligence the evidence could not be adduced in the trial Court, that the additional evidence, or expert’s opinion as the case may be, can be allowed at the stage of appeal. In the instant case, the petitioners did not utter even a word, as to what prevented or precluded them from seeking expert’s opinion at the stage of trial. The appeal has to be decided on the basis of the material that was available before the trial Court. Addition of any further material, after the disposal of the suit, would change the very contours of the litigation. That can be done only in exceptional cases. The lower appellate Court has undertaken an extensive discussion and assigned cogent reasons while dismissing the application filed by the petitioners. This Court is not inclined to take a different view. The Civil Revision Petition is accordingly dismissed. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J 08th June, 2010 NOTE: L.R.Copy to be marked. B/o. SKM