Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(AP) 666

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
V.R.K. Krupa Sagar, J.
Yarra Siva Prasad - Petitioner
Versus
Sakshi Sri Vijaya Lakshmi Kumari - Respondent
Civil Revision Petition Nos.4430, 4437 and 4438 of 2018
Decided On : 17-10-2022

Advocates Appeared:
For the Petitioner: Narasimha Rao Gudiseva .
For the Respondent: Sai Gangadhar Chamarty.

The trial Court has the discretion to call for expert's opinion even at an advanced stage of the trial, and the opinion of an expert is always helpful in evaluating the quality of evidence. Orders passed on applications under Section 45 of the Indian Evidence Act, seeking opinion of experts, are not subject to revision under Article 227 of the Constitution of India, as they are mere opinion evidence.

Headnote:
EVIDENCE ACT - SECTION 45 - OPINION OF HANDWRITING EXPERT - REOPENING OF EVIDENCE - DISCRETION OF TRIAL COURT - REVISION - MAINTAINABILITY - RES JUDICATA - THUMB IMPRESSION REGISTER - SUMMONING - LEGALITY AND REGULARITY OF ORDERS - PREJUDICE TO PARTIES - CIVIL REVISION PETITIONS - DISMISSAL.
Fact of the Case:

In a suit for partition of immovable properties, the plaintiffs sought to reopen the evidence and summon certain documents and witnesses, including a thumb impression register from the Sub-Registrar, for comparison with the disputed thumb impression on an unregistered Will. The trial Court allowed the applications, prompting the defendants to file revision petitions challenging the orders.
Finding of the Court:

The High Court held that the trial Court did not err in allowing the applications. It observed that the opinion of an expert is always helpful in evaluating the quality of evidence, and that the trial Court has the discretion to call for expert's opinion even at an advanced stage of the trial. The Court also held that the orders passed on such applications are not subject to revision under Article 227 of the Constitution of India, as they are mere opinion evidence. The Court further held that the argument of res judicata, based on the trial Court's earlier refusal to receive a registered gift deed containing the thumb impression of the parties' father, was without merit, as the thumb impression register from the Sub-Registrar was never the subject matter of the dispute in the earlier interlocutory applications.
Issues: 1. Whether the impugned orders are illegal or irregular and have they caused prejudice to the cause of the revision petitioners requiring interference? 2. Whether the trial Court erred in allowing the applications to reopen the evidence and summon certain documents and witnesses, including a thumb impression register from the Sub-Registrar? 3. Whether the orders passed on such applications are subject to revision under Article 227 of the Constitution of India? 4. Whether the argument of res judicata, based on the trial Court's earlier refusal to receive a registered gift deed containing the thumb impression of the parties' father, is valid?
Ratio Decidendi: 1. The trial Court has the discretion to call for expert's opinion even at an advanced stage of the trial, and the opinion of an expert is always helpful in evaluating the quality of evidence. 2. Orders passed on applications under Section 45 of the Indian Evidence Act, seeking opinion of experts, are not subject to revision under Article 227 of the Constitution of India, as they are mere opinion evidence. 3. The argument of res judicata, based on the trial Court's earlier refusal to receive a registered gift deed containing the thumb impression of the parties' father, is without merit, as the thumb impression register from the Sub-Registrar was never the subject matter of the dispute in the earlier interlocutory applications.
Final Decision: The High Court dismissed the revision petitions, confirming the orders of the trial Court allowing the applications to reopen the evidence and summon certain documents and witnesses, including a thumb impression register from the Sub-Registrar.

ORDER :

1. In O.S.No.156 of 2012, three interlocutory applications were filed by the plaintiffs and after due contest and hearing, they were disposed of by different orders and the learned trial Court allowed all the three applications. Respondents therein, who were defendants in the suit, are aggrieved of them and filed these three revision petitions. C.R.P.No.4430 of 2018 questions the correctness of order dated 09.07.2018 of learned Principal Senior Civil Judge at Machhilipatnam in I.A.No.400 of 2018 in O.S.No.156 of 2012. C.R.P.No.4437 of 2018 questions the correctness of order dated 09.07.2018 of learned Principal Senior Civil Judge at Machhilipatnam in I.A.No.398 of 2018 in O.S.No.156 of 2012. C.R.P.No.4438 of 2018 questions the correctness of order dated 09.07.2018 of learned Principal Senior Civil Judge at Machhilipatnam in I.A.No.399 of 2018 in O.S.No.156 of 2012. Since all these matters are connected to one another and they arose out of the same litigation, it is appropriate to dispose of all the three revisions together and therefore, this common order.

2. O.S.No.156 of 2012 is a suit filed for partition of immovable properties situated in Machilipatnam of Krishna District and the plaint schedule indicates three items. There are two plaintiffs and two defendants in that suit. All of them are siblings. That is a suit filed by sisters as against their own brothers. In the plaint, it is alleged that Sri Y.Pandu Ranga Rao and Smt. Nancharamma were the parents to the parties. Item No.1 was acquired by their father and rest of the items were acquired by their father during subsequent periods. Their claim in the suit is that all those properties are joint family properties since the father and mother of the parties died. Allegations are made against the brothers about misuse of funds and failure to divide the properties. On such allegations, the suit was laid seeking division of the immovable properties into four parts and grant one part to each of the parties to the suit.

3. Resisting the suit, the brothers filed their written statement wherein it was averred that item Nos.2 and 3 of the plaint schedule are the self-acquired properties of defendant No.1. Item No.1 of the plaint schedule was given as a bequest to defendant No.2 by their father under an unregistered Will dated 01.07.1985. The entire averments in the plaint were traversed and finally they sought for dismissal of the suit.

4. Issues in the suit were settled, trial commenced and it seems three witnesses were examined on plaintiffs’ side and five witnesses were examined on defendants’ side. It was thereafter the plaintiffs had come up with the three interlocutory applications. I.A.No.400 of 2018 in O.S.No.156 of 2012 was filed under Section 45 of the Indian Evidence Act read with Section 151 C.P.C. The prayer in the said petition is extracted here:

“For the reasons stated in accompanying affidavit the petitioners/plaintiffs therefore humbly prays that the Hon’ble court may be pleased to send the disputed thumb impression on Ex.B2 will along with contemplated thumb impression produced by the Sub-Registrar Office, Machilipatnam for finger print expert for comparison and enable the petitioners/plaintiffs to prove their case, as if they have strong prima facie case in the interest of justice.”

I.A.No.398 of 2018 in O.S.No.156 of 2012 was filed under Section 151 C.P.C. The prayer in the said petition is extracted here:

“For the reasons stated in accompanying affidavit the petitioners/plaintiffs therefore humbly prays that the Hon’ble Court may be pleased to reopen the above matter only for the purpose of examine the Sub-Registrar, Machilipatnam to cause production of thumb impression book dated 05.01.1976 pertaining to Document No.11/1976 book No.1 volume No.1222 pages 150 to 153 before the Hon’ble court and to give evidence and to examine prop; Bandar Kalyani Press, Machilipatnam to ascertain who was owner of plaint schedule during their tenancy and enable the petit

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