Damara Venkata Murali Krishna Rao vs Gurujupalli Satvathamma

Single judge of the Andhra Pradesh High Court dismissing the Civil Revision Petition filed by the appellant. Challenge in the

Civil Revision Petition was to the order dated 7.8.2006 passed

in I.A. 546 of 2006 in OS No. 9 of 2004 on the file of learned

Senior Civil Judge at Bobbil. Learned Senior Civil Judge had

dismissed the application filed by the defendant i.e. present

appellant for action in terms of Section 45 of the Indian

Evidence Act, 1872 (in short the `Act'). Prayer was to send

Exh. B1 to B12 to Government Expert for comparison of

signatures of CW 1 therein with the admitted signatures

appearing on his deposition and summons served on him.

3. Background facts in a nutshell are as follows:

The respondent-plaintiff filed a suit against the petitioner

defendant for recovery of Rs.2,28,150/- basing on a

promissory note purportedly executed by him over

Rs.1,50,000/- on 25.3.2001 and executed a suit promissory

note agreeing to repay the same with 18% interest. The

petitioner-defendant disputed the suit promissory note. He

took the plea that he had some transactions with the son of

2 the plaintiff and towards the said transactions he had paid

various amounts under Exs. B 1 to B 12 and he discharged

his liability by paying the amount on various dates. The

plaintiff closed his evidence and so also the defendant. When

the case came up for arguments, the petitioner-defendant filed

I.A. No. 432 of 2005 with a prayer to reopen the case for his

evidence and I.A. No. 433 of 2005 to summon the son of the

plaintiff by name Garujupalli Sriramamurthy and the said

applications were dismissed by the trial court. The petitioner

filed C.R.P. Nos. 4684 & 4883 of 2005 and this Court by order

dated 29.3.2006 allowed the Civil Revision petitions and

thereby permitted the petitioner-defendant to summon the son

of the plaintiff by name Garujupalli Sriramamurthy.

The relevant portion of the order passed by the High

Court in the aforesaid CRPs reads as under:

"The trial Court took the view that once

the evidence is closed, it cannot be reopened.

It is rather difficult to accept such a wide

3 proposition. The very occasion to reopen the

evidence would arise, after it is closed.

Further, it is not as if that the suit was

pending for several years and that the

petitioner is indifferent in taking necessary

steps. Between the date of filing of the suit and

filing the instant applications, there was

hardly one year gap. The petitioner deserves to

be given an opportunity, so that there can be

effective adjudication from all possible angles.

For the foregoing reasons, the Civil

Revision Petitions are allowed and the orders

under revisions are set aside. Consequently,

I.A. Nos. 432 and 433 of 2005 shall stand

allowed. The trial court shall take necessary

steps for summoning the son of the

respondent, by name Gurujubilli Sriram

Murthy. There shall be no order as to costs."

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In terms of the order passed by the High Court in the

above referred CRPs, the trial Court issued summons to the

son of the plaintiff by name Garujupalli Srirammurthy. He

came to be examined as CW 1. During the course of evidence,

the petitioner-defendant invited the attention of the witness to

Exs. B.1 to B. 12 receipts said to have been issued by him.

The witness denied the signatures appearing on Exs. B 1 and

B 12. The trial Court closed the evidence and posted the case

for arguments. Again, the petitioner filed IA No. 546 of 2006

purportedly under Section 45 of the Act with a prayer to send

Exs. B.1 to B.12 to Government Expert for comparison of the

signatures of C.W.1 appearing thereon with his admitted

signatures appearing on the deposition as well as summons

served on him. The plaintiff resisted the said application by

filing counter. The learned trial judge on considering the

material brought on record and on hearing the counsel for

both the parties dismissed the application by order dated

7.8.2006. It was held that the opinion of the expert is not

conclusive proof but it is only a piece of evidence.

5 The High Court dismissed the application primarily on

the ground that intention of the appellant is to protract the

litigation. It was noted that the very conduct of the appellant

in making an application to send Exhs. B1 to B12 to hand

writing expert after the close of the evidence and when the

case came up for argument indicated that the object was to

protract the litigation.

4. Learned counsel for the appellant submitted that the

High Court has proceeded on erroneous premises. The cross

examination was conducted on 24.7.2006 and the application

in question was filed on 1.8.2006. The application was filed in

terms of order XIX Rule 1 of the Code of Civil Procedure, 1908

(in short the `CPC'). There is no appearance on behalf of the

respondent. The conclusions of the High Court, that the sole

object in making the application was to protract the litigation,

is not factually correct as the factual scenario goes to show.

The earlier Civil Revision Petition was disposed of on

29.3.2006. On 24.7.2006, son of the respondent (CW 1) was

6 examined after being summoned. According to the appellant,

the occasion for making the application arose only after such

examination, on account of the statements made denying the

suggestions. The application was made immediately on

1.8.2006.

5. In view of the above, we set aside the impugned order of

the High Court. Trial Court shall pass necessary orders in

terms of the prayer made by the appellant. The appeal is

allowed to the aforesaid extent without any order as to costs.

...........................

....J. (Dr. ARIJIT PASAYAT)

...............................J. (P. SATHASIVAM) New Delhi, July 14, 2008

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