THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.775 of 2011 Date:30th June, 2011 Between: Thimmaluru Narasimha Reddy ..... Petitioner AND Thuna Gopal Reddy .....Respondent *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.775 of 2011 ORDER: This Civil Revision Petition is directed against the order, dated 07.02.2011, passed in I.A.No.146 of 2011 in O.S.No.23 of 2003 on the file of the Principal Senior Civil Judge, Rajampet, Kadapa District, whereby and whereunder, the learned Senior Civil Judge dismissed the application filed by the defendant under Section 45 of the Indian Evidence Act, 1872. 2. The petitioner is the defendant and whereas, the respondent is the plaintiff in O.S.No.23 of 2003 on the file of the Principal Senior Civil Judge, Rajampet. The plaintiff filed the suit for recovery of money basing on Ex.A1 promissory note. The petitioner/defendant disputed the execution of Ex.A1 promissory note. Thereupon, the respondent/plaintiff got the document sent to an expert along with the admitted signatures of the defendant. The expert examined the disputed signatures and the admitted signatures and opined that they are of the one and the same person. The respondent/plaintiff examined the handwriting expert on his behalf. The defendant cross-examined the expert. Thereafter, the petitioner/defendant moved I.A.No.146 of 2011 with a prayer to send Ex.A1 document to another expert on the ground that the expert has not properly examined the document before offering his opinion. For better appreciation, I may refer the relevant portion of the affidavit, which reads as hereunder: “4. The Respondent filed the suit against me for recovery of suit amount due under the suit pronote alleged to have been executed by me. In fact I never borrowed any amount from the respondent and never executed the suit pronote. I filed an application I.A.No.513/2003 to send the Ex.A1 for comparison. The Hon’ble Court was pleased to send the document to F.S.L., Hyderabad for comparison. The Hand writing expert has not at all examined the document, but scientist gave opinion. Therefore, the purpose for sending the document for comparison was not fulfilled. Further, I submit that the scientist has not compared the signatures as per the settled principles of law. Even during the course of cross-examination the scientist who compared the document clearly admits “he did not mention the kind of movements, speed, skill, alignment and slants in his opinion. The above aspects plays vital role in comparing the signatures. Thus, the scientist has ignored the fundamental principles of examination. The scientist also deposed that Exs.Q1 and Q2 are written with ball pen whereas S2 to S9 were written with fine tipped pen which is like sketch pen. If S2 to S9 are carefully perused it was written neither with fine tipped pen nor with sketch pen. The variance between the writing of Q1 and Q2 with S1 to S9 are apparent to the naked eye. But the scientist without appreciating and without careful examination gave a report with all false reasons. The scientist admitted that there are ink dots in Q1 and Q2. But the same is not mentioned in the report. 5.The examiner of the document is not at all examined the Ex.A1 properly with the admitted signatures and moreover without having sufficient number of admitted signatures the examiner of the document gave his report, which is erroneous as per the settled law. Under those circumstances the opinion of the scientist gave in I.A.No.513/2003 is liable to be set aside and the suit document must be sent to another hand writing expert for comparison. The report of the another expert is necessary for proper adjudication of the matter.” The respondent/plaintiff filed counter resisting the application. It is stated in the counter that Ex.A1 promissory note came to be examined by the Assistant Director, Andhra Pradesh Forensic Science Laboratory, Hyderabad, and he is both scientist and expert for examination of questioned documents. The learned Senior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, recorded a finding that the petitioner failed to make out a valid ground for sending Ex.A1 promissory note to the 2nd expert and thereby the application filed by the petitioner/defendant came to be dismissed, by order, dated 07.02.2011. The said order is assailed in this revision. 3. Notice before admission came to be issued on 08.03.2011. The respondent entered appearance through a counsel. 4. Heard learned counsel appearing for the petitioner/defendant and learned counsel appearing for the respondent/plaintiff. 5. Learned counsel appearing for the petitioner/defendant submits that sending the document to second expert is not barred under the provisions of the Civil Procedure Code. In support of his submission, reliance has been placed on a Division Bench judgment of this Court in M.Ramesh Babu v. M.Sreedhar[1]. Much emphasis has been laid on para.51 of the cited judgment, which reads as hereunder: “51. Therefore, we are of the view that there is no bar to take the opinion of a second expert without setting aside the earlier report. However, it is not desirable to appoint second Commissioner or to refer to the second expert without there being any valid reasons. There should be special circumstances and the Court must record its reasons for sending the document to the second expert or for appointing a second Commissioner. If the circumstances warrant, the Court may appoint second Commissioner or to seek the opinion of a second expert in the light of the language of Order XXVI, Rule 10-A of CPC read with Section 45 of the Indian Evidence Act. The salient features, essentials and distinction between Order XXVI Rule 9 and Order XXVI Rule 10-A of CPC read with Section 45 of the Indian Evidence Act always to be kept in mind. We are in complete agreement with the opinion of the learned Judge in Korvi Rosaiah’s case (supra). Moreover, we are of the view that the doors of the trial Court shall not be shut at the initial stage. The parties must be given full opportunity to adduce evidence and the other side must be given the same opportunity to adduce rebuttal evidence.” 6. Learned counsel appearing for the respondent/plaintiff supported the order impugned in the revision. 7. It is a matter of record that the suit document came to be examined by the Assistant Director of Andhra Pradesh Forensic Science Laboratory, Hyderabad. The only reason offered by the petitioner/defendant to send Ex.A1 promissory note to the 2nd handwriting expert is that there are dots in Q1 and Q2 and the variations between the writings of Q1 and Q2 with S1 to S9 are apparent to the naked eye. 8. If the variations are apparent to the naked eye, the Court is competent to compare the handwritings and signatures under Section 73 of the Indian Evidence Act, 1872, in which case, there is no need of the document to be sent to the 2nd handwriting expert. The learned Senior Civil Judge, having considered the fact that the suit has been pending for the last 7 years, came to the conclusion that the petitioner moved the application with an intention to drag on the matter. I do not see any illegality or irregularity warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 9. Accordingly, the Civil Revision Petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:30th June, 2011. cs THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.775 of 2011 Date:30th June, 2011 [1] 2009 (5) ALD 187 (D.B.)