IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF November TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4030 of 2010 Between: Md.Nazeeruddin. … Petitioner And Kambala Santosh Reddy … Respondent This Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.4030 OF 2010 ORDER:- This civil revision petition is directed against the order in I.A.No.361 of 2009 in O.S.No.145 of 2007 on the file of the Senior Civil Judge’s Court, Siddipet, dated 03.08.2010. The defendant in O.S.No.145 of 2007 filed the application to send the cash receipt, dated 11.03.2003; assurance deed, dated 05.05.2003; original agreement of sale (which is on Rs.10/- non judicial stamp paper) dated 23.12.2003 and cash receipt, dated 25.04.2007 along with signatures of himself and his son i.e., K.M.Nijamuddin to the handwriting expert of the Forensic Science Laboratory for verification. The defendant contended that the suit for specific performance is based on forged documents and on false claim of payment of Rs.50,000/- under an agreement of sale in respect of the suit schedule property. The documents were claimed to be forged and hence the defendant expressed his readiness to send the documents for comparison by the handwriting expert. The plaintiff opposed the request contending that an identical application in I.A.No.293 of 2008 was contested by him by filing counter and the application was dismissed on 23.09.2008. A second application is hence not maintainable, more so, when the defendant did not take any steps since the filing of the written statement. The plaintiff filed his affidavit of examination-in-chief and marked Exs.A1 to A15 without any objection and the defendant, without cross-examining the plaintiff, filed this application belatedly. In view of the cordial relations between the parties prior to the suit, with a number of transactions between them, there was no necessity to forge the signatures of the defendant in Exs.A1 to A15 and the signatures of the defendant can be compared by the court itself with reference to the disputed and admitted signatures without any necessity to send the documents to the Forensic Science Laboratory. The trial court rendered the impugned order referring to the decisions cited before it and noting that the defendant did not assign any reason for not pressing I.A.No.293 of 2008 nor did he raise any additional grounds. Observing that the evidence of an expert is not conclusive, the trial court felt that it was not necessary to send the documents for comparison of signatures in view of the decisions cited. Accordingly, the trial court dismissed the petition without costs. The defendant challenged the said order in this revision contending that the defence of forgery of documents was not appreciated and it is just and necessary to refer the matter to an expert for comparison in the light of the positive defence. During the course of hearing of the revision petition, the revision petitioner filed copies of three documents said to be containing the signatures of the revision petitioner/the defendant, which can be considered to be beyond any doubt and which can form the basis for requested comparison. Heard Sri M.Pratap Singh, learned counsel for the revision petitioner and Sri K.Govind, learned counsel for the respondent. The point for consideration is whether the request of the defendant for having comparison of the disputed and admitted signatures by an expert has to be considered ? A reference is made during the arguments to Pamu Padmavathi v. Perati Yakub Reddy[1], Tajuddin v. Md.Abdul Rahaman and others[2] and Lagadapati Dhanalakshmi and others v. Lagadapati Anjaneyulu[3] cited before the trial court. The propositions are not in dispute that the court itself is competent to compare the signatures and come to a just and appropriate conclusion and the court must feel the necessity of sending the document to an expert before resorting to such a course of action. It is also not in doubt that the evidence of an expert is only an opinion evidence. In Velaga Sivarama Krishna v. Velaga Veerabhadra Rao[4], a learned Judge of this Court referred to the precedents on these aspects and the principles laid down in Renu Devi Kedia v. Seeta Devi[5] were extracted (in which Pamu Padmavathi v. Perati Yacob Reddy (2008(3) ALD 669) was considered in detail). The learned Judge concluded that the experts’ opinion is not excluded from the purview of examination, which will help the court in exercising the power of comparison under Section 73 of the Indian Evidence Act, 1872. The learned Judge noted that by sending a document to the handwriting expert, no prejudice will be caused to either party and it cannot be said that no useful purpose will be served by sending the document to an expert when the science of comparison is developed. The learned Judge opined that the Court can formulate its opinion with the assistance of the expert’s report and by comparing the signatures whether the report is to be accepted or not but not by way of denying an opportunity to the defendant. In that case, the learned judge permitted such comparison. In opposition to the above decision relied on by the revision petitioner, the respondent referred to again Renu Devi Kedia’s case (5 supra), which was considered in the later decision. It is also seen that in Renu Devi Kedia’s case, the gap between the disputed and specimen signatures; the possibility of disguising the signatures; the absence of any contemporaneous signatures for comparison etc., were taken as indicating the absence of any useful purpose in sending the documents to an expert for opinion and the said conclusion on the facts and circumstances of that case cannot be read as laying down of any principle against sending the documents to an expert for comparison in all cases. It is also well settled that comparison of the disputed and admitted signatures with the naked eye by the court itself, can only be one of the circumstances that can be taken into account in analyzing the probabilities arising out of the evidence on record in a case and it cannot be a safe or sole basis by itself for coming to any conclusion. While there is no doubt that the evidence of an expert is only an opinion evidence, the genuineness or otherwise of a document is always assessed with reference to the availability of other reliable evidence either way and the opinion of an expert can always be a valuable assistance in assessing such probabilities as elaborated by the learned Judge in Velaga Sivarama Krishna’s Case (4 supra). With that background it is seen that the defendant is denying the execution of the documents in question since inception including in I.A.No.293 of 2008, which application was not pressed by him later. It is true that the contentions of both the parties are identical herein as in I.A.No.293 of 2008. But when admittedly I.A.No.293 of 2008 was dismissed as not pressed and not on merits, there can be no res judicata or constructive res judicata or estoppel, which disables the defendant from renewing his request again during the pendency of the suit. If I.A.No.293 of 2008 had been decided on merits, the defendant would have been disabled from renewing such a request, but for any change of circumstances or any additional grounds and such a contingency does not arise herein. The disputed signatures are requested to be compared with the admitted signatures and the revision petitioner has filed copies of two sale deeds, dated 18.07.2003 and 02.11.2001 for comparison with the signatures in respect of a transaction said to have arisen in 2004, which cannot be said to be an unreasonable distance of time. The other documents are not far off from the date of the suit agreement. Whether the documents furnished by the defendant for comparison of signatures form a dependable basis for such comparison or not, will be a matter of evidence to be adduced by both the parties during the trial and depending on such evidence will be the respectability and acceptability of the expert’s report. As the request of the defendant is based on positive defence taken by him in the suit; as the expert’s opinion will be a valuable help and assistance in appreciating the rival contentions and evidence; and as no prejudice will be caused to the plaintiff by acceding to the request of the defendant, the failure of the trial court to exercise its jurisdiction and judicial discretion in this regard has to be interfered with. The plaintiff also, if he so desires, can furnish any documents with the admitted or alleged signatures of the defendant and his son on them for the purpose of comparison with the disputed signatures. In view of the delay by the defendant in making request and his not pursuing I.A.No.293 of 2008, the defendant can be directed to bear the costs of the expert opinion irrespective of the result of the suit. The impugned order has to be set aside accordingly. In the result, the order in I.A.No.361 of 2009 in O.S.No.145 of 2007 on the file of the Senior Civil Judge’s Court, Siddipet, dated 03.08.2010, is set aside and the said I.A.No.361 of 2009 is allowed without costs. The originals of the three registered sale deeds, copies of which are filed before this Court, shall also be furnished by the defendant before the trial court for enabling the trial court to send those documents also to the expert for comparison along with the disputed signatures. The signatures of the defendant and his son K.M.Nijamuddin also shall be obtained by the trial court in open court for being sent to the expert for such comparison. The plaintiff is also at liberty to furnish to the trial court any documents said to be containing the signatures of the defendant and/or his son K.M.Nijamuddin for being sent to the expert for such comparison. The defendant shall bear the expenses of obtaining such expert opinion from the concerned experts of the State Forensic Science Laboratory, Hyderabad, irrespective of the result of the suit. The Civil Revision Petition is allowed, accordingly, without costs. ______________________ G. BHAVANI PRASAD, J November 19, 2010 lmv [1] 2008(3) ALD 669 [2] 2008(1) ALD 573 [3] 2009(5) ALD 542 [4] 2009(1) ALD 265 [5] AIR 2005 AP 180