HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 16-7-2010 C.R.P. No.5421 of 2008 Between: K.Kamalamma. …Petitioner. And: D. Kumaraswamy Naidu and another. …Respondents. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.5421 of 2008 ORDER: This is revision filed by the 1st defendant whose application for sending Ex.A.1 promissory note and admitted signature on Ex.A.2 together with other admitted signatures of D.1 on the pleadings etc., for comparison to the Hand Writing Expert, was rejected by the trial Court under the impugned order. 2. The suit based on a promissory note was being tried by the court below and the evidence on the part of the plaintiff was closed on 23-7-2007 and that the evidence on the part of the defendants was closed on 13-8-2007. Thereafter, the present application came to be filed by the 1st defendant on 4-10- 2007. Under the impugned order, the Court below was of the opinion that though mere delay is not a ground to reject the said request, but as the opinion of the expert will not be conclusive, the Court below declined to permit the said application. As stated above, the present revision is preferred aggrieved by the said order. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 4. The contention urged on behalf of the petitioners that the said application has been moved at the appropriate time and the learned counsel relied on two decisions of this Court reported in GURU GOVINDU v. DEVARAPU VENKATARAMANA ([1]) and GULAM GHOUSE AND OTHERS v. MADARSE JEELANIA SHAMA-UL-ULOOM EDUCATION SOCIETY AND ANOTHER ([2]), the learned Counsel also places reliance upon the evidence of P.W.1 dated 23-7-2007 where he has stated that he has no objection for sending the signatures of D.1 for comparison with the signatures on Ex.A.1. 5. Learned counsel states that only after the evidence was competed, at least on the part of the plaintiff that the petitioner would be able to assess the necessity of sending the suit promissory note for comparison and examination by the expert. Even as per the Court below also, delay is not a ground to reject the said request but the Court below has rejected this request on the ground that opinion of expert is not conclusive. 6. Learned counsel for the respondents on the other hand contended that the suit is of the year 2003 and already four years have elapsed by the time the evidence was completed. The present application moved by the 1st defendant is therefore, only to delay and dragon the suit for some more time and the fact that having raised pleas of forging pronote in the written statement and having not taken any such steps till now, amply shows that the present application is filed only to delay the disposal of the suit. 7. Learned counsel also submits that the application of this nature ought not to have been allowed and trial court has rightly disallowed and that in any case, opinion of an expert is not binding on the civil Court and the Civil Court can as well compare the signatures under Section 73 of the Evidence Act. Learned counsel therefore, attempts to sustain the impugned order. 8. I have considered the aforesaid submissions. 9. The contention that the application ought to have been filed immediately after filing the written statement is concerned, the same is clearly unsustainable inasmuch as at that stage, the application would be considered as premature and would not be entertained. In a suit of this nature, it is for the plaintiff to establish his case by proving the suit promissory note. After the plaintiff has lead his evidence, the defendants can make up their mind with respect to the necessity of leading evidence of an expert opinion under Section 45 of the Evidence Act. The stage for filing the present application, therefore, could not have arrived before 23-7-2007 when plaintiff evidence was closed. As mentioned above, the present application is moved on 4-10-2007 i.e., hardly within about 2 ½ months of the closure of evidence of the plaintiff and as such, it cannot be said that this application is belated one. Even the Court below also did not reject the said application on that ground. Further, the decision of this Court 1st cited is closer on facts and point involved to the present case and para 4 of the said judgment would be appropriate to extract as hereunder: “The trial Court dismissed the application of the petitioner on two grounds. The first is that it was filed at a belated stage and the second is that in view of existence of power in the trial Court under Section 73 of the Act, it may not be necessary to accede to the request to send the documents to an expert’s opinion. The first reason assigned by the trial Court does not appear to be sound. It is not as if the application under Section 45 of the Act must be filed soon after the written statement is presented. 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.” 10. Similarly, in the decision 2nd cited, it has been considered that application filed immediately after examination of plaintiff’s evidence cannot be said to be belated in view of the aforesaid legal position. Therefore, I am of the view that the Court below committed error in not appreciating this legal position and erroneously rejected the petitioner’s application. As pointed out by the learned counsel for the respondents, it is no doubt true that the trial of the suit is delayed on account of pendency of this application and thereafter, during the last 2 years when this revision petition is pending before this Court. The matters of this nature undoubtedly require early disposal and in this view of the matter, it is necessary to direct the Court below to expedite the disposal of the suit, within a period of three months from the date of receipt of a copy of this order. 11. This Revision is allowed. The Court below shall send the document Ex.A.1 to an expert examination as prayed for within a period of one week from the date of receipt of a copy of this order and since the evidence on both sides is already completed, after receiving expert’s opinion and subject to the request of either parties, the Court below is directed to complete the trial and consider and dispose of the suit expeditiously. 12. This Civil Revision petition is accordingly allowed. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 16-7-2010 Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.5421 of 2008 Dated 16-7-2010 [1] AIR 2006 ANDHRA PRADESH 371 [2] 2007 (4) ALT 432