* THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR + CIVIL REVISION PETITION No.735 & 2257 OF 2010 % Dated: 12.11.2010 Kolli Ranga Rao and another ……………..Petitioners Vs. Kolli Varalakshmi Janani …………..Respondent ! Counsel for the Petitioner : Sri V.S.R.Anjaneyulu ^Counsel for the Respondent: Sri M.S.Ramachandra Rao. <Gist: >Head Note: ? Citations: 1) 2008 (3) ALD 112 SC THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL REVISION PETITION NOS.735 AND 2257 OF 2010 DT.12.11.2010 Between: Kolli Ranga Rao and another ……………..Petitioners Vs. Kolli Varalakshmi Janani …………..Respondent (Parties in both the revisions are one and the same.) O R D E R: The petitioners in C.R.P.No.735 of 2010 challenge the order, dated 25.01.2010 passed in I.A.No.224 of 2009 in O.S.No.11 of 2004 on the file of the III Additional District Judge (F.T.C.), Bhimavaram and the petitioners in C.R.P.No.2257 of 2010 challenge the order, dated 19.04.2010 passed in I.A.No.159 of 2009 in O.S.No.11 of 2004 on the file of the III Additional District Judge (F.T.C.) Bhimavaram. Since both the matters are connected and arising out of the same judgment, they are being disposed of by a common order. The brief facts of the case are as follows: The respondent herein is the plaintiff and petitioners herein are the defendants 1 and 2 in the main suit. The plaintiff filed a suit for specific performance, basing on Ex.A-1 agreement of sale. The case of the respondent is that he is the absolute owners of the suit schedule property i.e., item No.1, to an extent of Ac 1.93½ cents out of 7.73 cents in R.S.No.329 situated in Boddanapudi Village of Kaila Mandal situated in Akividu S.R.O. limits and Item No.2 to an extent of Ac 1.86½ cents out of Ac 7.73 cents in R.S.No.329 situated in Doddanapudi Village of Kalla Mandal situated in Akividu S.R.O. limits and both the lands situated in Akividu Mandal were offered to be sold and the petitioners herein entered into an agreement of sale on 05.12.2000 and fixed highest consideration of Rs.5,70,000/- and out of which, an amount of Rs.4,00,000/- was paid by the respondent towards advance of sale consideration and the remaining of Rs.1,70,000/- was agreed to be paid by 30.11.2001 and together with some other conditions with regard to the payment of interest in case of delay in paying consideration. It is the case of the respondent that though she was ready and willing to pay the sale consideration, the petitioners did not come forward to receive the same and therefore, she has filed the suit for specific performance of agreement of sale. The petitioners herein filed written statement and denied the execution of the said agreement of sale. The evidence on behalf of the respondent was offered and on behalf of the petitioners, the first petitioner herein was examined as DW-1 on 07.10.2009 and subsequently, the petitioner had taken adjournment for adducing further evidence and ultimately, the evidence of defendants was also closed on 07.10.2009 and the matter was adjournment for arguments. At this stage, the petitioners herein filed I.A.No.224 of 2009 under Section 45 of the Indian Evidence Act to send Ex.A-1 agreement of sale to the Finger Print Expert for comparison, alleging that the thumb impression appeared on it is not that of the second petitioner herein and that it is a forged one. The lower court observing that no petition to reopen the evidence of the petitioners (defendants) is filed and therefore, the petition is not maintainable and that the first petitioner herein was examined as DW-1 and that he had admitted his signature on Ex.A-1 though denied the thumb impression of second defendant (his wife) on it, and that when there is credible and trustworthy and direct evidence, there is no need to send the document to the expert. It is also observed that an application filed under Section 45 of the Indian Evidence Act cannot be ordered as a matter of course and when the court feels that it is necessary to send the document, then only the court may allow the application. It was also observed that even if there is an expert’s opinion, much importance need not be given to the same. With the above said observations, I.A.No.224 of 2009 was dismissed. The lower court also holding that the petitioner had taken eight adjournments for the evidence and that the petition filed under Section 45 of the Evidence Act in I.A.No.244 of 2009 was dismissed and that even according to the evidence of DW-1, the second petitioner is hale and healthy and is in a position to give evidence and as the grounds raised by the petitioners are not valid, dismissed the petition. Sri V.S.R.Anjaneyulu, learned counsel for the petitioner relying on the judgment in a case between THIRUVENGDA PILLAI VS. NAVANEETHAMMAL AND ANOTHER[1] submitted that comparison of signature/finger impression by court without the assistance of an expert is always has been considered to be hazardous and risky and that the comparison of the two thumb impressions cannot be casual or by a mere glance. It was further observed as follows: “When there is a positive denial by the person who is said to have affixed his finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the Court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions.” The learned counsel also relied on a decision reported in between GURU GOVINDU VS. DEVARAPU VENKATARAMANA[2], wherein this Court held that the delay in filing an application at the stage of arguments is not a ground to dismiss the application under Section 45 of the Indian Evidence Act. This Court further observed as follows: “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 Act, even at the stage of arguments.” In a case between MEDIKONDA RAMA SWARAJYALAKSHMI VS. POSINA SATHYANARAYANA AND ANOTHER[3], this court observed as follows: “Even though the opinion of the handwriting expert cannot be conclusive, it is important piece of evidence to hold whether the suit document is forged document or not. Though no doubt, the Courts have also got power under Section 73 of the Evidence Act to compare the dispute signature in order to give a finding on the issue involved, but at the same time, the Courts normally take the assistance of the handwriting expert.” It was further held that when the rights of a party is affected by the impugned order in not sending the document to a handwriting expert, C.R.P. is maintainable, though it is at interlocutory stage. The learned counsel for the respondent submitted that it is the discretion of the court to send a document to an expert or not. It is further argued that originally the suit was filed for perpetual injunction and that the evidence of the respondent was adduced long back and that DW-1 was examined on 07.10.2010 and the petitioner had taken eight adjournments for adducing further evidence and when the petitioners’ side evidence was closed and posted for arguments, at that stage, the petitioners had filed this application and that the petitioners ought to have filed this application before commencing the evidence. The learned counsel also argued that the lower court has exercised its discretionary power judicially and normally no interference is required by this court while exercising the revisional jurisdiction. The only point that arises for consideration is whether an opportunity has to be given to the petitioners to send the document for expert’s opinion or not. 2) Whether a separate application is required to be filed to reopen the case. Point No.1: In this case, it is the case of the respondent that the petitioners herein have executed an agreement of sale offering to sell the lands and according to Sri V.S.R. Anjaneyulu, learned counsel for the petitioners submitted that the thumb impression which is said to be that of the second petitioner on the document is not that of the second petitioner and it is a forged one. Of course, the recitals of the document goes to show that both of them have agreed to execute the agreement of sale and the first petitioner is no other than the husband of the second petitioner, but however, when it is specifically denied that the thumb impression of second petitioner is not there on Ex.A-1 and the thumb impression appearing on it is a forged one, the petitioners should be given an opportunity to prove their case. When a signature or thumb impression on a document is denied, it has to be proved as a fact whether the signature or the impression is that of the person who had alleged to have put his signature or thumb impression. It becomes an important point to decide the case on merits. Of course, the same has to be appreciated along with the other evidence on record. It is clear that, the respondents have taken seven or eight adjournments for adducing their evidence and for the delay caused by them, the court ought to have imposed reasonable costs. While passing orders on interlocutory applications, generally, the court should avoid making comments on the merits of the case and as to whether the evidence adduced by one party is trustworthy or not and whether the evidence of any particular witness is shaken or not, such observations appear to be not necessary and more over, create a reasonable apprehension in the mind of a party and therefore, it is always better to avoid such comments. Though the power of the courts to send a document to an expert under Section 45 of the Act is a discretionary power, the courts have to exercise the discretion in a just and reasonable manner and if there are any lapses on the part of the party, the court may consider those lapses but merely because there are some latches or some delay on the part of a party, that should not come in the way of rejecting their claim. Point No.1 is answered accordingly. Point No.2: The learned counsel for the petitioner has also relied on a decision in a case between SULTAN SALEHI BIN OMER VS.VIJAYACHAND SIRIMAL[4] “It cannot be said that an opportunity to a party to re- call any witness for the purpose of examining, cross- examining or re-examining is governed by Order 18, rule 17, Civil Procedure Code; it circumstances warrant, an opportunity to a party to re-call a witness for examining, cross-examining or re-examining can be granted by a Court in the exercise of its inherent jurisdiction under section 151, Civil Procedure Code. There is an unwarranted practice obtaining in some of the subordinate Courts, of treating the completion of the evidence as closing of the trial, and hearing arguments as a separate stage of the trial, and that a prayer for examining any witness or receiving a document after closing of the evidence, though it be before or during hearing the arguments, requires a re-opening of the trial. This is not correct.” The learned counsel for the respondent also could not show any provision to file an application to reopen the case. When an application has been filed to adduce further evidence, it is deemed that a request is made to reopen the matter and there is no need to file a separate application to reopen the case. In the above circumstances, since it appears that by not sending a document to a handwriting expert, the right of second petitioner is held to be affected, I am of the view that the impugned orders are liable to be set aside. Accordingly, the impugned orders are set aside and both the revisions are allowed. Consequently, I.A.Nos.224 and 920 of 2008 stand allowed. However, having regard to the conduct of the parties in taking several adjournments for adducing evidence, I consider it just and reasonable to allow I.A.No.224 of 2009 on payment of costs of Rs.5,000/- (Rupees five thousands) to the other side within a period of 30 days from the date of receipt of a copy of this order. On payment of such costs, I.A.Nos.224 and 920 of 2008 stand allowed. The lower court is also directed to send the disputed matter to the handwriting expert at an early date and make an endeavor to conclude the trial within six months from the date of receipt of a copy of this order. The revision petitions are accordingly allowed. No order as to costs. ___________________ B.CHANDRA KUMAR J., Dt.12.11.2010 tjs [1] ) 2008 (3) ALD 112 SC [2] ) 2006(4) ALD 333 [3] ) 1999 (1) ALD 210 [4] ) 1966 ANWR 22