THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.773 of 2010 28.4.2010 Between Jettim Venkata Rao, S/o.Rattayya … Petitioner AND Smt.Vanapalli Veeramma, W/o.Nageswara Rao … Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO CIVIL REVISION PETITION No.773 of 2010 ORDER: The petitioner is defendant in O.S.No.854 of 2008 on the file of the Court of the Junior Civil Judge, Nidadavole. The suit is for recovery of money based on promissory note dated 27.6.2003. Petitioner filed I.A.No.834 of 2009 under Section 45 of Indian Evidence Act, 1872 (the Act) to send the suit promissory note to Handwriting expert. By impugned order dated 10.11.2009, the trial Court dismissed the same. Therefore, petitioner filed instant revision petition under Article 227 of Constitution of India. The suit filed by the respondent was originally registered as O.S.No.511 of 2005 on the file of the Court of Additional Junior Civil Judge, Kovvur. The suit was filed on 08.7.2005. Petitioner filed written statement on 20.10.2005 inter alia taking the plea that the suit promissory note is a rank forgery. The suit was later transferred to the Court of Junior Civil Judge, Nidadavole, and was renumbered as O.S.No.854 of 2008. The evidence of plaintiff was completed. It appears, petitioner filed his affidavit in lieu of chief examination but did not present for cross-examination. The matter was posted for arguments. At that stage, he filed I.A.No.834 of 2009 to send suit promissory note to Handwriting expert. The Court below dismissed the I.A. on two grounds: (i) that the application is belated one and (ii) that in the absence of contemporaneous signatures for comparison, the application cannot be accepted. The counsel for petitioner relies on Janachaitanya Housing Ltd., Hyderabad v Divya Financiers, Guntur[1] and submits that a party is entitled to file application under Section 45 of the Act taking time and the same cannot be dismissed only on the ground of delay. He also submits that merely because petitioner failed to produce contemporaneous signatures, application cannot be dismissed. Per contra, the counsel for respondent relies on A.Neelalohithadasan Nadar v George Mascrene[2] a n d Bhupathiraju Ravi Kumar v Paluri Surya Prakasa Rao (died)[3] and submits that when the suit was filed in 2005 and petitioner filed written statement immediately now he cannot be allowed to file application under Section 45 of the Act especially when the matter is coming up for arguments. In Janachaitanya Housing Ltd., (supra), learned Single Judge referred the question, “whether an application under Section 45 of the Evidence Act filed for sending the signatures for comparison and expert opinion, can be entertained at the later stage, including when coming up for arguments after entire trial? ”. After referring to relevant case law, the Division Bench which heard the reference by the learned Single Judge, answered the same as under. No time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the Court; for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of the each case. Therefore even if the petitioner’s argument is to be accepted, it has to be seen whether discretion has been exercised in a sound manner. In Bhupathiraju Ravi Kumar (supra), this Court came to the conclusion that the delay of 8 years in seeking to send disputed document to Handwriting expert as belated. In this case, petitioner filled application and did not take proper care to produce contemporaneous signatures. Further, there is no dispute that D.W.1 (petitioner) did not present himself for cross-examination and, therefore, no purpose would be served by sending suit promissory note to Handwriting expert. Be it noted, when the defendant asserts that suit promissory note is forged, mere plea is not sufficient and at least as a party to the suit (as alleged by the plaintiff) he ought to come into box and depose to the said effect. In the result, for the above reasons, the civil revision petition fails and is accordingly dismissed. _____________ (V.V.S.RAO,J) April 28, 2010. YS [1] 2008(4) ALD 339 (DB) [2] 1994 Supp. (2) SCC 619 [3] 2009 (3) ALT 294