HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

CIVIL REVISION PETITION NO. 1660 of 2023

Between:

B.Prabhakar @ B.Prabhakar Naidu

… Petitioner/Defendant

Versus

Hari Prasad

... Respondent/Plaintiff

* * * * *

DATE OF ORDER PRONOUNCED : 21.08.2023

SUBMITTED FOR APPROVAL :

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local Newspapers

may be allowed to see the Order? Yes/No

2. Whether the copy of Order may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

fair copy of the Order? Yes/No

JUSTICE RAVI NATH TILHARI

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C.R.P.No.1660 of 2023

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* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

+ CIVIL REVISION PETITION NO. 1660 OF 2023

% 21.08.2023

#Between:

B.Prabhakar @ B.Prabhakar Naidu

… Petitioner/Defendant

Versus

Hari Prasad

... Respondent/Plaintiff

!

Counsel for the Revis ion-

petitioner/Defendant

:: Sri T.Janardhan Rao

^

Counsel for the Respondent/

Plaintiff

:: Sri V.Nitesh

< Gist:

> Head Note:

? Cases referred:

1. Janachaitanya Housing Ltd. v. Divya Financiers

reported in 2008 (4) ALD 339 (DB).

2. Mudi Reddy Tirupathi Re ddy v. T.Linga Reddy

and others reported in 2015 (6) ALT 512.

3. Dara Srinivasa Rao v. Nallamilli Venkara Reddy

reported in 2021 (3) ALD 203.

4. Byalla Devadas v. Sivapuram Rama Yogeswara

Rao reported in 2022 (5) ALT 614.

This Court made the following:

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THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION NO. 1660 OF 2023

O R D E R:

Heard Sri T.Janardhan Rao, learned counsel for the

revision-petitioner/defendant and Sri Chilukuri Karthik,

learned counsel representing on behalf of Sri V.Nitesh,

learned counsel for the respondent/plaintiff.

2. This civil revision petition has been filed by the

revision-petitioner/defendant under Article 227 of the

Constitution of India, challenging the Order, dated

03.04.2023, „Rejecting‟ the I.A.No.367 of 2022 filed by the

revision-petitioner/defendant under Section 45 of the Indian

Evidence Act, 1872 in O.S.No.260 of 2017 on the file of

Additional Senior Civil Judge‟s Court, Chittoor.

3. The respondent/plaintiff filed O.S.No.260 of 2017 for

decree, directing the revision-petitioner/defendant to pay

the suit claim under promissory note together with future

interest at the rate of 24% per annum and consequential

reliefs.

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4. The revision-petitioner/defendant in the written

statement denied borrowing any amount from plaintiff. He

also denied execution of any promissory note. He also

pleaded that his signatures on the promissory note were

forged and fabricated.

5. Both the parties lead evidence. After closure of the

evidence, the revision-petitioner filed I.A.No.367 of 2022

under Section 45 of the Indian Evidence Act, 1872, to send

the promissory note, dated 09.07.2016 (Exhibit A.1) along

with his admitted signatures for comparison and opinion of

handwriting expert, to the Director, Forensic Science

Laboratory, Mangalagiri of Guntur District.

6. Along with I.A.No.367 of 2022, the revision-petitioner

did not file any document which might have contained his

admitted signatures.

7. The respondent/plaintiff filed counter to I.A.No.367 of

2022. He inter alia denied the contents of the interlocutory

application and the affidavit in support thereof. He further

submitted that the Court had the power to compare the

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signature of the defendant with the admitted signature. It

was further submitted that the defendant was in the habit of

changing language and type of his signature. He requested

to reject the application I.A.No.367 of 2022.

8. The learned Trial Court framed the following point for

determination: -

“Whether the petitioner/plaintiff is entitled to

send the suit promissory no te to the

Handwriting Expert, APFSL, Mangalagiri to

compare the signatures on Ex.A.1 promissory

note dt.09.07.2016 as prayed for?”

9. The learned Trial Court vide Order, dated 03.04.2023

„Rejected‟ the petitioner‟s I.A.No.367 of 2022 application.

10. Challenging the Order, dated 03.04.2023 the present

civil revision-petition has been filed.

11. The learned Trial Court „Rejected‟ the application, on

the grounds, that the application was filed after closure of

the evidence of both the parties; and that the revision-

petitioner did not file his admitted contemporary signatures

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to compare the same with the signatures on the suit

promissory note.

12. Sri T.Janardhan Rao, learned counsel for the revision-

petitioner/defendant submits that the grounds of rejection

are unsustainable. The application could not be rejected on

the ground that it was filed after closure of evidence.

13. He further submits that it could be filed at such a

stage, as well. He further submits that the signatures of the

revision-petitioner were available in his written statement

and the vakalat. So, the Trial Court erred in observing that

the admitted contemporary signatures of the petitioner/

defendant, to compare with the disputed signature on the

promissory note, was not filed.

14. Learned counsel for the petitioner relied in the cases of

Janachaitanya Housing Ltd. v. Divya Financiers

1 and

1

2008 (4) ALD 339 (DB).

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Mudi Reddy Tirupathi Reddy v. T.Linga Reddy and

Others

2.

15. Sri Chilukuri Karthik, learned counsel representing

Sri V. Nitesh, learned counsel for the respondent/plaintiff,

submits that the application was filed belatedly after closure

of the evidence of both the parties. So, the Trial Court did

not err in rejecting the same.

16. He further submits that the revision -petitioner/

defendant did not file an y contemporary document

containing the admitted signatures for comparison with the

disputed signatures. So, the Trial Court correctly observed

in that regard. So far as the defendant/petitioner‟s

signatures on his written statement and vakalat are

concerned, he submits that the comparison of the disputed

signatures cannot be made with the signatures on the

written statement and the vakalat.

17. Learned counsel for the respondent placed reliance in

the cases of Dara Srinivasa Rao v. Nallamilli Venkara

2

2015 (6) ALT 512.

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Reddy

3 and Byalla Devadas v. Sivapuram Rama

Yogeswara Rao

4.

18. I have considered the submissions advanced by the

learned counsels for the parties and perused the material on

record.

19. In view of the submissions advanced, the point for

consideration is:

“Whether the Rejection of the petitioner’s

application in I.A.No.367 of 2022 in O.S.No.260

of 2017 is justified or it calls for interference?”

20. The first ground of Rejection is that the application

was filed belatedly after closure of the evidence of both the

parties.

21. On this aspect, in Janachaitanya Housing Ltd

(supra) on a reference made to the larger Bench, noticing

two inconsistent views taken by the learned Single Judge in

different cases, the Division Bench of this Court held that no

3

2021 (3) ALD 203.

4

2022 (5) ALT 614.

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time could be fixed for filing application under Section 45 of

the Indian Evidence Act, for sending the disputed signatures

or writings to the handwriting expert for comparison and

opinion. The 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.

22. The relevant part of Para Nos.8 and 9 of

Janachaitanya Housing Ltd (supra) is reproduced as

under:

“8. “…In view of the same, we are of the

opinion that the Court cannot lay down any hard-

and-fast rules controlling the discretion of the

Court to send the disputed documents/writings for

the opinion of the expert or to examine him in

support of such opinion. On sending the document

to handwriting expert and on receiving report,

parties, on showing sufficient cause, may call upon

the Court to permit them to examine hand-writing

expert or any witness in support or rebut the same

opinion…”

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“9. For the reasons aforementioned, we answer the

reference thus: “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 e xercising such

discretion when exigencies so demand, depending

upon the facts and circumstances of the each case.”

23. So, in view of the Division Bench Judgment, no hard

and fast rule can be applied. No time limit can be fixed for

filing applications under Section 45 of the Indian Evidence

Act, 1872; It is within the discretion of the Court to

consider, if, the application so filed, belatedly, is to be

allowed or rejected, depending upon the facts and

circumstances of each case.

24. In the present case, the Trial Court in the exercise of

its discretion, under the facts and circumstances of the

case, considered not to allow the belated application filed

after closing the evidence of both the parties. Learned

counsel for the petitioner tried to submit that as no time

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limit has been fixed, it can be filed at any stage. The

submission deserves rejection. „No time limit‟ does not mean

at any time. The stage, at which the application is filed, is

left to the discretion of the Trial Court considering the facts

and circumstances of each case to take decision. The suit

was filed in the year 2017 for recovery of money based on

promissory note. The application was filed in the year 2022

after about five (05) years, after closure of evidence. Under

such circumstances, the Trial Court having exercised the

discretion one way in rejecting the application, on the

ground of belated application, this Court, in the exercise of

jurisdiction under Article 227 of Constitution of India does

not find any reason to interfere with such exercise of

discretion.

25. The second ground of rejection is that the revision-

petitioner/defendant did not file any contemporary

document containing his admitted signatures, for

comparison with the disputed signature.

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26. Learned counsel for the petitioner submits that such

comparison could be made from the admitted signatures of

the petitioner on his written statement and the Vakalat. He

contends that in the case of Mudi Reddy Tirupathi Reddy

(supra), the application for verification of the disputed

signatures was permitted for comparison of the signatures

in the plaint and vakalat. So, on the analogy, the disputed

signatures on the written statement and vakalat could also

be sent for comparison with the disputed signature on

pronote.

27. The said submission deserves rejection. The Judgment

in Mudi Reddy Tirupathi Reddy (supra), does not support

the submission of the learned counsel for the petitioner. His

submission proceeds on wrong assumption of fact and law.

In Mudi Reddy Tirupathi Reddy (supra) the plaintiff therein

filed the suit for Specific Performance of an Agreement of

Sale Receipt, dated 04.04.2004. The defendant therein

denied his signatures on the said document. When the case

was at the stage of examination of D.W.1, the plaintiff filed

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application under Section 45 of the Indian Evidence Act,

1872, to send the said document to an expert in handwriting

to compare the signatures thereon , with the admitted

signatures of defendants on Ex.B.1 to Ex.B.4. From the

facts of the judgment, it is evident that the disputed

signatures of the defendants on the Agreement of Sale

Receipt were sought to be compared with the ir admitted

signatures on the documents Ex.B.1 to Ex.B.4.

28. The Mudi Reddy Tirupathi Reddy (supra) is not a case

of comparing the disputed signatures of the defendant; from

the signatures on the written statement or vakalat. It is also

not a case where the signatures of the plaintiff were to be

compared from the plaintiff‟s signatures on the plaint and

vakalat. It was a case of comparing the signature of the

defendants, but it could not be from the plaint as the

defendants would have no signatures on the plaint or the

vakalat of plaintiff. The „plaint‟ and „vakalat‟ as mentioned in

para No.2 of the judgment in Mudi Reddy Tirupathi Reddy

(supra) (in last sentence), it appears to be an error. However,

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there is clarity that the comparison was to be made from the

admitted signatures of the defendants on Exs.B.1 to Ex.B.4

in Mudi Reddy Tirupathi Reddy (supra). The said case is

therefore of no help to the petitioner.

29. In Dara Srinivasa Rao (supra), it has been clearly laid

down that the defendant‟s signatures on his vakalat and

written statement, cannot be considered as signatures of

assured standard for comparison with his disputed signatures.

30. It is apt to reproduce para Nos.9 to 11 of Dara

Srinivasa Rao (supra) as under:

“9. On perusal of the impugned order under this

revision and also the material available on record, it

appears that the disputed signature in Ex.A1/suit

promissory note is dated 15.01.2012 and the suit was

filed in the year 2015. The present revision petition is

filed in the year 2019 to send the suit promissory note

for comparison of signature with admitted signatures

of the petitioner over Vakalat and Written Statement.

Admittedly, there is a gap of three years between both

of them. As such, the proposition of law laid down by

this Court in Bande Siva Shankara Srinivasa

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Prasad v. Ravi Surya Prakash Babu

5

, relied by the

learned counsel for the petitioner is no useful to

support his contention basing on the facts and

circumstances of the present case.

10. In the judgment relied by the learned counsel for

the respondent in Chennadi Jalapathi Reddy v.

Baddam Pratapa Reddy (dead) through Legal

Representatives and another

6

, the Hon‟ble Apex

Court at Para No.24, it was held as under:

“There is another reason why we are not

inclined to place reliance on the opinion of

the expert DW2. From a perusal of his report

Ext. B2, it is evident that barring the

signature on a written statement in a prior

suit, all other admitted signatures of the first

defendant are of a period subsequent to the

filing of the plaint (i.e., on the vakalatnama

and the written statement filed in this suit

itself). These admitted signatures taken

subsequent to the filing of the suit could not

have been used as a valid basis of

comparison, and their use for this purpose

casts serious doubt on the reliability of the

entire report Ext. B2. Thus, the report was

liable to be discarded on this ground alone,

5

AIR 2016 (Hyd.) 118.

6

(2019) 14 SCC 220.

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and was wrongly relied upon by the High

Court.”

11. This Court has an occasion to consider the

similar issue in P.Padmanabhaiah v. G.Srinivasa

Rao

7

and held as under:

“In the well considered view of this Court, the

defendant‟s signatures on the Vakalat and

the written statement cannot be considered

as signatures of comparable and assured

standard as according to the plaintiff even by

the date of the filing of the Vakalat the

defendant is clear in his mind about his

stand in regard to the denial of his signatures

on the suit promissory note and the

endorsement thereon and as the contention

of the plaintiff that the defendant might have

designedly disguised his signatures on the

Vakalat and the written statement cannot be

ruled out prima facie. The view point being

projected by the plaintiff that if the defendant

is called upon to furnish his signatures in

open Court, he might designedly disguise his

signatures while making his signatures on

papers in open Court is also having

considerable force and merit. Unless the

defendant makes available to the Court below

7

AIR 2016 AP 118 (FB).

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any documents, with his signatures, of

authentic and reliable nature more or less of

a contemporaneous period, and unless such

documents are in turn made available to the

expert along with the suit promissory note,

the expert will not be in a position to furnish

an assured opinion, in the well considered

view of this Court.”

31. In Byalla Devadas (supra), also, the same proposition

of law has been laid down . It has been held that the

signatures on the vakalat and the written statement of the

defendant cannot be send for comparison to the disputed

signatures. There would be no point in sending to an expert

the documents of doubtful nature and character and add

one more piece of unreliable evidence. It is unsafe to obtain

the signatures of the defendant in open Court and send the

said signatures and also his vakalat and written statement

to an expert for obtaining opinion after comparison. It was

further observed and held that the defendant‟s signature on

the vakalat and the written statement cannot be considered

as signatures of comparable and assured standard , as by

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that time i.e., filing of the vakalat and written statement, the

defendant is clear in his mind about his stand in regard to

the denial of his signatures on the suit promissory note. The

endorsement thereon cannot be ruled out as the defendant

might have designedly, disguised his signatures on the

vakalat and written statement.

32. Para Nos.9 and 10 in Byalla Devadas (supra), are

reproduced as under:

“9. At this juncture, it is appropriate to refer to the

orders passed by a learned Judge in

P.Padmanabhaiah and the case of Dara Srinivasa

Rao. In P.Padmanabhaiah case referred supra, the

defendant in O.S.No.324 of 2010 on the file of Court of

the Additional Senior Civil Judge, Kurnool filed an

application under Section 45 of the Indian Evidence

Act to send the vakal at and written statement

containing his signatures along with the promissory

note (Ex.A1) for handwriting expert for comparison of

his signatures on the vakalat and written statement

with the signatures said to be of him on Ex.A.1 and

furnish a report with opinion as to the genuineness or

otherwise of the disputed signatures on the said

exhibits. The said application was allowed. The learned

Judge of this Court while interfering with the orders of

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the Trial Court had extensively dealt with the matters

with reference to comparison of signatures on vakalat

and written statement with the disputed documents,

inter alia, held as follows:

“In the well considered view of this

Court, the defendants signatures on the

Vakalat and the Written Statement cannot be

considered as signatures of comparable and

assured standard as according to the plaintiff

even by the date of the filing of the vakalat

the defendant is clear in his mind about his

stand in regard to the denial of his signatures

on the suit promissory note and the

endorsement thereon and as the contention

of the plaintiff that the defendant might have

designedly disguised his signatures on the

Vakalat and the Written Statement cannot be

ruled out prima facie. The view point being

projected by the plaintiff that if the defendant

is called upon to furnish his signatures in

open Court, he might designedly disguise his

signatures while making his signatures on

papers in open Court is also having

considerable force and merit. Unless the

defendant makes available to the Court below

any documents, with his signatures, of

authentic and reliable nature more or less of

a contemporaneous period, and unless such

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documents are in turn made available to the

expert along with the suit promissory note,

the expert will not be in a position to furnish

an assured opinion, in the well considered

view of this Court. ……..There is no point in

sending to an expert the documents of

doubtful nature and character and add one

more piece of unreliable evidence and burden

the record by wasting the time and money of

the parties. When there are no signatures of

comparable and assured standard on the

material record before the trial Court, it is

unsafe to obtain the signatures of the

defendant in open Court and send the said

signatures and also his vakalat and written

statement to an expert for obtaining his

opinion after comparison of the signatures

thereon with the disputed signatures on the

suit promissory note, as any such opinion

obtained from a handwriting expert on such

material is not going to be of any help to the

trial Court in effectively adjudicating the lis

more particularly in the light of the admitted

legal position that expert‟s opinion evidence

as to handwriting or signatures can rarely, if

ever, take the place of substantive evidence.”

10. In the light of the above well considered view of

the learned Judge, this Court is not inclined to

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interfere with the order passed by the learned Trial

Judge, though the reason assigned by it for dismissing

the I.A. in question to the effect that no steps were

taken before commencement of Trial is not

sustainable. In the light of the above conclusions, Civil

Revision Petition fails and the same is liable to be

dismissed.”

33. It is thus settled in law that the defendant‟s disputed

signature on suit promissory note are not comparable with

his signatures on written statement or/and vakalat executed

in the same suit, for expert opinion.

34. In view of the above consideration, this Court does not

find any illegality in the impugned order passed by the

learned Trial Court.

35. No case for interference is made out in the exercise of

supervisory jurisdiction under Article 227 of the

Constitution of India and particularly, considering both the

grounds together, for rejection of the petitioner‟s application.

36. The petition is devoid of merit and deserves to be

dismissed.

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37. The Civil Revision Petition is Dismissed. No order as to

costs.

Pending miscellaneous petitions, if any, shall stand

closed in consequence.

JUSTICE RAVI NATH TILHARI

21

st August, 2023.

DNB

Note:

LR Copy is to be marked.

B/o.

DNB