IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: AT HYDERABAD TUESDAY, THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2496 of 2010 Between: D.Anjaiah and another … Petitioners A n d D.Shankaraiah @ Mangali Shankaraiah …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.2496 of 2010 ORDER: This civil revision petition is directed against the order dated 01-04-2010 in I.A.No.1113 of 2009 in O.S.No.1037 of 2000, on the file of the II-Additional Junior Civil Judge, Ranga Reddy District, wherein the said application filed by the respondent herein, the plaintiff, under Section 45 of the Indian Evidence Act to send the suit agreement of sale Ex.A-16 dated 01-09-1988, original agreement of sale dated 02-02-1987 and handwritten letter Ex.A-2 to the expert for the purpose of comparison of thumb impressions contained on those documents with the thumb impressions of defendants 1 and 2, was partly allowed in respect of Exs.A-2 and A-16 and rejected in respect of the agreement of sale dated 02-02-1987. 2. Heard both sides. Perused the record. 3. The petitioner herein filed the suit for bare injunction. The respondents filed written statement and contested the suit. Necessary issues were settled and the recording of evidence during the trial was also completed. When the matter stood posted for arguments, the respondent herein, the plaintiff, filed this application I.A.No.1113 of 2009 under Section 45 of the Evidence Act on the ground that the petitioners/defendants denied execution of Exs.A-2 and A-16 and also agreement of sale dated 02-02-1987 alleging them to be forged documents and they have intentionally denied the thumb impressions. The petitioners herein filed the counter opposing the said application on the ground that there is no pleading in the plaint about the execution of the agreement of sale and the present application is filed at a belated stage when the matter stood posted for arguments only for the purpose of protracting the litigation. The trial Court allowed the said application in respect of Exs.A-2 and A-16 on the ground that there is a dispute between the parties regarding the execution of the said documents. The trial Court observed that an agreement of sale dated 01-09-1988 was marked as Ex.A-16 and if it is not pleaded in the plaint and there is no foundation laid in the plaint, the same can be considered at a later stage, as the document is already marked as Ex.A-16. The trial Court, while noting the settled proposition of law that the evidence without pleadings cannot be considered, however, observed as above. 4. A perusal of the plaint would go to show that the suit for injunction was filed based on revenue records, pattedar passbook and pahanies. The plaint does not refer to Exs.A-2 and A-16 or the unmarked document dated 02-02-1987. According to the defendants, after the Joint Collector suspended the ROR orders passed by the Mandal Revenue Officer in favour of the defendants, the plaintiff has come forward with a new plea based on agreement of sale. The defendants would further contend that the plaintiff was never in possession of the suit property which is always in possession of the defendants. 5. The learned counsel for the respondent relied upon a decision in GURU GOVINDU v. DEVARAPU VENKATARAMANA[1] wherein this Court observed that nothing prevents the party to a suit to file an application under Section 45 of the Act, even at the stage of arguments. In the above case, the application was filed when recording of evidence of the petitioner therein was in progress. In the present case, recording of evidence is completed and the matter stood posted for arguments. No doubt, there is no time limit prescribed for filing of an application under Section 45 of the Evidence Act and such an application can be filed at any stage and even at the stage of arguments as observed in the above decision. In a given case whether filing of such an application at the stage of arguments is justified, remains to be considered in the light of the facts and circumstances of that particular case and no hard and fast rule can be laid in that regard. In the above case, a basis was laid in the pleadings for sending the suit promissory note to the expert inasmuch as the signature thereon was denied by the defendant who pleaded that it was forged. In the present case, there is no pleading in the plaint regarding the documents which are now sought to be sent for expert and there is no occasion for the defendants to rebut such pleading in their written statement. The decision cited, therefore, is not applicable to the facts of the present case. 6. The learned counsel for the respondent relied upon a decision of a Division Bench of this Court in M/S JANACHAITANYA HOUSING LTD., V. M/S DIVYA FINANCIERS[2] wherein it was held that no time limit can be fixed for filing application under Section 45 for sending the disputed documents or writings to the handwriting expert and the same has to be left open to the discretion of the Court for exercising such discretion when exigencies so demand, depending upon the facts and circumstances of each case. The above decision came to be rendered in answer to a reference in view of inconsistent views taken by two learned Single Judges regarding maintainability of the applications filed seeking expert’s opinion at the belated stage of arguments. After referring to the case law on the subject, it was held that the Court cannot lay down any hard and fast rules to send the disputed documents/writings for the opinion of the expert or to examine him in support of such opinion. There cannot be any dispute regarding the principles laid down in the above decision. However, in the facts and circumstances of the present case where the documents which have no reference in the pleadings are sought to be sent to the expert at a belated stage when the matter reached arguments, the impugned order of the trial Court allowing the said application in respect of the two documents Exs.A-2 and A-16 without valid reasons, is unsustainable as the discretion cannot be said to have been exercised in a proper way and on sound principles. 7. The suit is filed for bare injunction. The plaintiff has to establish that he was in possession and enjoyment of the suit property on the date of filing of the suit in his own right before he could seek a permanent injunction. In spite of the defendants denying the plaintiff’s title and possession, the plaintiff has not chosen to seek declaration of his title. There is absolutely no reference to the documents Exs.A-2, A-16 and the agreement of sale dated 02-02-1987 in the plaint. It is well settled that the evidence adduced during the course of trial must have its roots in the pleadings. The relevance of the documents Exs.A-2, A-16 and the agreement of sale dated 02-02-1987 is not disclosed in the pleadings, but however, Exs.A-2 and A-16 are marked. The trial Court would, however, consider the relevance and probative value of Exs.A-2 and A-16 at an appropriate stage. The observation of the trial Court that by sending the disputed documents to the expert no prejudice would be caused to the petitioner herein, is not indicative of a sound approach. The agreement of sale dated 02-02-1987 is not marked as exhibit and, therefore, the trial Court felt that sending the said document would be futile, whereas Ex.A-2 and A- 16 can be sent to the expert because they are marked as exhibits. No doubt a document which is not admissible in evidence need not be sent to an expert as no purpose would be served by obtaining a report in respect of that document. At the same time, simply because the other two documents are marked as Exs.A-2 and A-16, they cannot be sent to the expert for that reason alone when sufficient basis is not laid in the pleadings regarding their relevance and probative value. There is absolutely no reason as to why the plaintiff filed the application nearly nine years after filing of the suit and waited till the matter reached the stage of arguments, even though the defendants have made their stand clear in the written statement itself. That itself is indicative of the fact that the present application is filed only to delay the disposal of the suit. In the circumstances, the impugned order, allowing the said applications filed at the highly belated stage of arguments is, therefore, held unsustainable and the same is accordingly set aside. 8. In the result, the civil revision petition is allowed. There shall be no order as to costs. ______________________ G.V.SEETHAPATHY, J 22nd March 2011 Lrkm. [1] 2006(5) ALT 17 [2] AIR 2008 AP 163