IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. SIVA SANKARA RAO, J.
Kovelamudi Hymavathi @ Vanajakshi – Petitioner
Versus
Mannem Lakshmi Sarojini @ Sarojinamma and Others – Respondents
Civil Revision Petition Nos. 2166, 2176 of 2016
Decided On : 25-01-2018
Code of Civil Procedure, 1908 - Order XIII Rule 8 - Indian Evidence Act, 1872 - Section 45 - Agreement of sale - During pendency of the suit, the plaintiff filed I.A. seeking to send agreement of sale to the District Registrar for impounding with the averments in the affidavit that the defendants bent upon said fabricated document as if executed by the plaintiff and D.1 in favour of D.2 and possession also was delivered - Plaintiff filed another petition in I.A., seeking to send the agreement of sale, to the handwriting expert along with the admitted signatures of the plaintiff with the averments that said agreement is a created one by forging her signature and same is required to be sent to a handwriting expert along with admitted signatures on record and also by taking specimen signatures in open Court if necessary, for an expert opinion for proper adjudication on its genuineness - Held, Mere absence of such helpful circumstances cannot render the whole exercise under Section 45 of the Act impossible or untenable - An expert is known for his capability to arrive at the conclusion even by taking note of the undisputed writing irrespective of the time gap between the date of the sample and the date on which the disputed document was signed - At any rate, the opinion expressed by an expert is not conclusive in nature and the parties to the litigation can certainly put forward their contentions in favour of or against such opinion - Grounds mentioned by the trial court in dismissing the application thus cannot be sustained and the dismissal order is liable to be set aside - Revisions are allowed.
B. SIVA SANKARA RAO, J.
1. The revision petitioner in both the revisions is the plaintiff in O.S. No. 35 of 2013 on the file of the XVI Addl. District Judge, Nandigama, filed against the revision respondents 1 to 4-D.1 to D.4.
2. During pendency of the suit, the plaintiff filed I.A. No. 1014 of 2015 U/O. XIII Rule 8 of CPC seeking to send agreement of sale dated 10.03.1997 (Ex.B.1) to the District Registrar for impounding with the averments in the affidavit that the defendants bent upon said fabricated document as if executed by the plaintiff and D.1 in favour of D.2 and possession also was delivered. At the time of enquiry in interlocutory application, the Court was pleased to reject marking said document, but in the absence of her counsel through DW-1 on collecting Rs. 100/- only as penalty, the document was marked.
3. On the other hand, the respondents 1 to 4/D.1 to 4 filed counter denying the averments in the affidavit of the plaintiff and stated that the Court after scrutiny only marked the document after collecting penalty and stamp duty in evidence through DW-1. The learned counsel for the plaintiff did not raise any objection and proceed to cross-examine PW-1. When once a document is received and duly admitted in evidence, it cannot be questioned with regard to its admissibility at a later stage of the suit as per Section 36 of the Indian Stamp Act, on the ground of insufficient stamping. It may be raised in Appellate or Revisional Court as per Section 61 of the Stamp Act only.
4. After hearing both sides, the trial Court by order dated 22.03.2016 dismissed the petition holding that under said document, no possession of the property was delivered and as such the Court impounded duly by collecting stamp duty of Rs. 100/- with penalty of Rs. 1,000/- total of Rs. 1,100/- and thereby again sending same to the District Registrar for impounding does not arise.
5. Impugning the same, the plaintiff preferred the CRP No. 2176 of 2016 seeking to set aside the order of the trial Court by allowing the revision.
6. The plaintiff filed another petition in I.A. No. 1015 of 2015 u/sec. 45 of the Indian Evidence Act, seeking to send the Ex. B.1-agreement of sale, dated 10.03.1997 to the handwriting expert along with the admitted signatures of the plaintiff with the averments that said agreement is a created one by forging her signature and same is required to be sent to a handwriting expert along with admitted signatures on record and also by taking specimen signatures in open Court if necessary, for an expert opinion for proper adjudication on its genuineness.
7. This application also, after hearing both sides, by order dated 22.03.2016 dismissed by the trial Court holding that at one breath by filing I.A. No. 1014 of 2015, the plaintiff sought to send the document for impounding without questioning the genuinity but in the present application questioning the genuinity of the document. Record reveals that there is a specific plea in the written statement about the document, but there was no rejoinder from the side of plaintiff. Though the document is marked through DW-1 absolutely there is no suggestion to her by the counsel for the plaintiff that Ex. B.1 is a created document and the signatures of the plaintiff are forged. However, the suit is filed for partition of the schedule property, the defence taken by the defendants is that the schedule property is already orally partitioned even prior to filing of the suit. The issue involved in the suit is whether there was any previous partition as contended by the defendants or the property is liable to be partitioned as contended by the petitioner/plaintiff. The document Ex. B.1 is only an incidental and ancillary one to the main issue. For said reasons, this petition is also dismissed.
8. Impugning the same also, the plaintiff preferred the C.R.P. No. 2166 of 2016 seeking to set aside the order of the trial Court by allowing the revision.
9. The contentions in the grounds of the two revis
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