SRI JUSTICE D.S.R.VARMA C.R.P No. 3654 of 2009 · Andhra Pradesh High Court

Heard both sides.

This Civil Revision Petition is directed against the order and decree, dated 02.07.2009, passed by the Principal Junior Civil Judge, Vijayawada, dismissing the application I.A.No.88 of 2009 in O.S.No.869 of 2007, filed under Section 45 of the Indian Stamps Act, seeking to send the suit promissory note, marked as Ex.A-1, to the expert for opinion.

Petitioner is the defendant and the respondent is the plaintiff in the suit, before the Court below.

The Court below, having considered the material, available on record, dismissed the said application mainly on two grounds, firstly, the application was filed at a belated stage i.e., after trial procedure had commenced and gone to a considerable extent and at that stage the present application had been filed and secondly, the petitioner did not mention about the admitted signatures nor produced the admitted signatures with whom the suit promissory note is to be compared.

The learned counsel appearing for the petitioner relies on a judgment of the Division Bench of this Court in JANACHAITANYA HOUSING LTD. vs. DIVYA FINANCIERS [1] wherein, after surveying various judgments, on this subject, it was pointed out that at any time an application can be filed under Section 45 of the Act and the same cannot be rejected on the ground of delay. It is further pointed out that even at the stage of arguments, such an application can be made and it is for the Court to look into the matter and depending upon facts and circumstances of the case, the Court can consider such an application and pass appropriate orders. It is the discretion of the Court to examine the necessity to send the document filed under Section 45 of the Act for comparison by an expert and such an application cannot be rejected on the ground of delay. the necessity and

In my considered view, the view taken by the Division Bench of this Court, in JANACHAITANYA’s case (supra), is wholly unexceptionable.

In relation to the second reason assigned by the Court below, it is to be seen that no comparable signatures were furnished by the defendant.

The learned counsel appearing for the defendant again contends that even in such cases also the signatures that are available on record can be sent to the expert for comparison. In that regard, he places reliance on an unreported judgment of a learned single Judge of this Court in C.R.P.No.2491 of 2008, which was disposed of on 11.07.2008.

From a perusal of the said judgment, it appears that no principle is laid down by the learned single judge of this Court. It appears that in such cases also the Court, in the interest of justice, can always send the documents that are available on record for comparison.

In my considered view, even that facility also can be made available to the defendant only depending upon the facts and circumstances of the case.

In other words, it is in the discretionary jurisdiction of the Court below as to whether the disputed document, in the case on hand, is fit to be sent to an expert for opinion or not?

Again regarding the case on hand, it is to be seen that it was categorically pointed out by the Court below that no admitted signatures have been placed before the Court below nor, at least, any mention was made about the same. In such circumstances, it is not necessary for the Court below to examine the entire record and search for the availability of the admitted signatures on record and send the same to the expert, as sought for by the defendant. Such an exercise need not be taken up by the Court, unless and until the defendant initiates some effort. It is not for the Court below to examine the entire record and search for the document and trace the admitted signatures nor send the same to the expert for opinion.

It is only a matter of convenience and discretionary the Court. Of course, such an exercise of jurisdiction of discretionary jurisdiction shall be judicious and apparent on the face of the record.

For the foregoing, I do not find any illegality or irregularity in the impugned order, passed by the Court below, and the Civil Revision Petition is devoid of any merit and is liable to be dismissed.