THE HON’BLE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.3854 OF 2010 Dated: 22.03.2011 Between : Smt. Manugula Sesha Satya Kameswari … Petitioner And Sri Chinta Venkateswara Sarma … Respondent THE HON’BLE Ms. JUSTICE G.ROHINI CIVIL REVISION PETITION No.3854 OF 2010 ORDER : This Civil Revision Petition is directed against the order dated 25.06.2010 in I.A.No.2283 of 2005 in A.S.No.11 of 2005 on the file of the Family Court-cum-Additional District Judge, West Godavari at Eluru. The petitioner is the plaintiff in O.S.No.64 of 1996 on the file of the Court of the Senior Civil Judge, Kovvur. The suit is filed against the respondent herein for recovery of possession of the plaint schedule house property and also for permanent injunction. The said suit was dismissed by judgment and decree dated 22.10.2004 and aggrieved by the same the petitioner filed A.S.No.11 of 2005 in the Family Court-cum-Additional District Judge. Along with the said appeal, the petitioner filed I.A.No.2283 of 2005 under Section 45 of the Indian Evidence Act to send Ex.B-2 document to the Government Handwriting Expert for comparison of the disputed signatures on the said document. The said application was dismissed by the Court below by order dated 25.6.2010. Aggrieved by the same, the present Civil Revision Petition is filed. I have heard the learned counsel for both parties. The material available on record shows that the petitioner/plaintiff claims title to the suit schedule house on the basis of Ex.A-1 Will, dated 28.11.1994 said to have been executed by her father late Lottala Satyanarayana Murthy under which the petitioner was bequeathed life interest conferring absolute rights on her son. In the said will, 200 sq. yards of house plot adjacent to the suit schedule property was bequeathed to the defendant/respondent herein for the service rendered by him. It is alleged that after the death of her father, the defendant created Ex.B-2 forged will dated 15.1.1995 bequeathing the entire property in his favour. It was claimed that though the plaintiff was in effective possession of the suit house, the defendant was in occupation of some rooms and he refused to vacate in spite of the demands made by the plaintiff. Hence she filed the suit for eviction of the defendant and for recovery of the possession of the house in his occupation. However the suit was dismissed upholding the validity of Ex.B-2. In the Appeal preferred against the said judgment and decree, the petitioner filed I.A.No.2283 of 2005 reiterating her contention that Ex.B- 2 is not genuine and that it is apparent to the naked eye that Ex.B-2 is a rank forgery. While stating that she did not take steps in the trial court to send Ex.B-2 Will to the Handwriting Expert as she was under a bona fide impression that in the light of the evidence on record and other suspicious circumstances Ex.B-2 will would be disbelieved, she filed I.A.No.2283 of 2005 requesting the Appellate Court to send Ex.B- 2 to the Government Handwriting Expert for comparison of the disputed signatures on Ex.B-2 with the admitted signatures of late Lottala Satyanarayana Murthy. The said application was opposed by the defendant contending that it would protract the proceedings and moreover producing additional evidence at appellate stage is not permissible under law. The Court below dismissed I.A.No.2283 of 2005 observing that the trial Court after elaborate discussion gave a finding that Ex.B-2 will was genuine. It was also held that the appellant did not give any satisfactory explanation as to why the disputed document was not sent to the expert for comparison while the matter was pending in the trial Court and that her intention was nothing but to protract the proceedings. While arriving at the said conclusion, the Court below relied upon a decision of this Court in V. CHIDAMBER REDDY v. K. GOVINDA REDDY[1], wherein it was held that when an application under Section 45 of the Indian Evidence Act was allowed by the Appellate Court, it would amount to receiving additional evidence at the appellate stage. There can be no dispute about the ratio laid down in the above case that expert opinion at the appellate stage would amount to additional evidence. However under Order 41 Rule 27 of C.P.C. there is no absolute prohibition as to production of additional evidence at the appellate stage. The said provision empowers the Appellate Court to receive additional evidence if the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or the Appellate Court requires any document to be produced or for any other substantial cause. It is also relevant to note that the expert’s opinion under Section 45 of the Indian Evidence Act is not conclusive but it would only assist the Court to exercise the powers under Section 73 of the Indian Evidence Act. In the instant case, it is true that the petitioner had not taken any steps to send Ex.B-2 will for opinion of the handwriting expert before the trial court. However the application was filed at the time of presenting the main appeal itself. At any rate the Court below did not go into the question of permissibility of receiving additional evidence under Order 41 Rule 27 of C.P.C. It may be true that P.W.1 was not in a position to identify the signatures of her father on Ex.A-1 and Ex.B-2 wills, but in case the admitted signatures of the testator of the contemporary period are available, there cannot be any impediment to send the disputed document for expert opinion even at the appellate stage subject to satisfying the conditions under Rule 27 of Order 41 of C.P.C. For the aforesaid reasons, I am of the opinion that the matter requires reconsideration. Accordingly, the order under Revision is hereby set aside and the Civil Revision Petition is disposed of with a direction to the Court below to reconsider I.A.No.2283 of 2005 in the light of the observations made above and pass appropriate orders afresh in accordance with law as expeditiously as possible preferably within a period of six weeks from the date of receipt of this order. Civil Revision Petition is accordingly disposed of. No costs. _____________ G. ROHINI, J. Dt. 22.03.2011 gbs [1] 2008 (6) ALT 312 = 2008 (5) ALD 325