The main legal point established in the judgment is the discretion of the court to allow applications for handwriting expert opinion under Section 151 of the Code of Civil Procedure read with Section 45 of the Indian Evidence Act, and the timing and necessity of filing such applications.

Rajiv Sharma, J.

This petition is instituted against the order dated 6.4.2015 rendered by the Civil Judge (Senior Division), Shimla in Civil Suit No. 99-1 of 2007.

2. “Key facts” necessary for the adjudication of this petition are that petitioner has instituted a Civil Suit No. 99-1 of 2007 against the respondents for permanent prohibitory injunction restraining the respondents from interfering with the possession in any manner, ownership, administration and management of land measuring 834.7 square yards comprised in Khasra No. 379/305/251 (old) and 940, 941 and 945 (new). Respondents have filed the written statement to the same.

3. Issues were framed by the trial Court on 26.5.2011. Petitioner has closed his evidence on 15.6.2013. Thereafter, respondent No.1 moved an application under Section 151 of the Code of Civil Procedure read with Section 45 of the Indian Evidence Act to allow the handwriting expert Shri Devendra Prashad, Forensic Document Expert to take the photographs of the disputed agreement to sell dated 9.10.1996 for its expert opinion and producing the same in the case. According to the averments contained in the application, signatures of respondent No.1 were obtained by the petitioner on the blank paper in business dealings and the same have been misused. The application has been contested by the petitioner. According to the averments contained in the reply, the agreement dated 9.10.1996 stood admitted by respondent in her cross-examination in Civil Suit No. 103-1 of 2011/10 (Annexure P-7). Learned Civil Judge (Senior Division) allowed the application vide order dated 6.4.2015. Hence, this petition.

4. Mr. Ajay Kumar, learned Senior Advocate has vehemently argued that respondent No.1 has admitted the execution of agreement dated 9.10.1996. Thus, there was no requirement of sending the same to the expert.

5. Mr. Ashok Sood, Advocate has supported Order dated 6.4.2015.

6. I have heard the learned counsel for the parties and have gone through the pleadings carefully.

7. Suit for specific performance is based upon execution of the agreement dated 9.10.1996 executed by respondent No. 1. Petitioner has already led his evidence.

8. Mr. Ajay Kumar, learned Senior Counsel has vehemently argued that respondent No.1 in her cross-examination in Civil Suit No. 103-1 of 2011/2010 (Annexure P-7) has admitted that she came to know about the agreement, 20-25 years back. The agreement was read over to her by her husband. Her husband was educated. However, fact of the matter is that respondent No. 1 in her cross-examination has denied the execution of agreement in the month of October, 1996 vide Ext. PW-12/A. It has also come in her statement that petitioner used to obtained her signatures on blank papers. The application has been preferred by the respondents at the stage when their evidence was being recorded. The trial Court has come to a right conclusion that no prejudice would be caused to the petitioner if the photographs of the agreement are exhibited. The execution of the agreement Ext. PW-12/A dated 9.10.1996 is under dispute. There is neither any illegality nor any perversity in Order dated 6.4.2015 rendered by the learned Civil Judge (Senior Division), Shimla.

9. Learned Single Judge of Andhra Pradesh High Court in Guru Govindu v. Devarapu Venkataramana reported in AIR 2006 Andhra Pradesh 371, has held that the application under Section 45 of the Evidence Act need not be filed soon after written statement is presented. Party can file application even at the stage of arguments. Learned Single Judge has held as under:

[4] The trial Court dismissed the application of the petitioner on two grounds. The first is that it was filed at a belated stage and the second is that in view of existence of power in the trial Court under Section 73 of the Act, it may not be necessary to accede to the request to send the documents to an expert's opinion. The first reason assigned by the trial Court does not appear to be sound. It is not