Holding

The Supreme Court held that the application under Section 45 was bona fide and should be entertained, setting aside the High Court’s order.

Summary

The plaintiff filed a suit for recovery of money based on a promissory note. The defendant contended that he had discharged the debt by making payments evidenced by receipts (Exhibits B‑1 to B‑12) issued to the plaintiff’s son, who was later examined as a witness and denied his signatures on those receipts. The defendant then filed an application under Section 45 of the Evidence Act seeking a government expert’s comparison of the disputed signatures. The trial court dismissed the application; the High Court upheld the dismissal, holding that the application was filed merely to protract the litigation. On appeal, the Supreme Court observed that the application was filed promptly after the cross‑examination, in accordance with Order XIX Rule 1 of the CPC, and was intended to resolve a genuine factual issue. Consequently, the Court set aside the High Court’s order and directed the trial court to consider the application, allowing the appeal in part.

Issues considered

The propriety of allowing an application under Section 45 of the Evidence Act for expert signature comparison after the evidence has been closed.
Whether the application was filed with the genuine intent of ascertaining facts or merely to delay the proceedings.

Legislation cited

Code of Civil Procedure, 1908s. Order XIX Rule 1
Indian Evidence Act, 1872s. 45

Subjects

Section 45expert opinionsignature comparisonreopening evidencecivil procedurepromissory notereceipt evidencelitigation delay

Judgment

[2008] 10 S.C.R. 933

DAMARA VENKATA MURALI KRISHNA RAO A
v.
GURUJUPALLI SATVATHAMMA
(Civil Appeal No. 4364 of 2008)
JULY 14, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

~ Evidence Act, 1872 - s. 45 - Expert opinion - Sought for
comparison of signature of a witness- At the stage of arguments
in a suit for recovery of money- Rejected by trial court- Rejec- c
i'
tion confirmed by High Court on the ground that application
was filed with a view to protract the litigation - On appeal, held:
In view of the facts of the case, finding of High Court not correct
- Direction to trial court to dispose of the application.
~

Respondent had filed a suit against the appellant- D
defendant for recovery of certain amount on the basis of
a promissory note. Appellant took the plea that in the
course of transactions with the son of the respondent-
plaintiff, he had discharged his liability by paying the
amount under Exbts 8-1 to 8-12 (Receipts issued by son E

- of the plaintiff). At the time of arguments, appellant un-
successfully filed application for reopening the case and
examine the son of the respondent as a witness. The son
of the respondent was later examined as CW-1 on the di-
--+
rection passed by the High Court. CW-1 denied his signa- F
tures on Exbts 8-1 to 8-12. Appellant, thereafter filed appli-
cation u/s 45 of Evidence Act, 1872 seeking to send the
Exbts. to Government Expert for comparison of the signa-
tures of CW-1 on the Exbts. with his admitted signatures.
Trial court dismissed the application. High Court dismissed
G
the revision petition thereagainst, holding that the conduct
,,._~

of the appellant in filing application was only with a view
to protract the litigation. Hence the present appeal.
Partly allowing the appeal, the Court
933 H
934 SUPREME COURT REPORTS [2008] 10 S.C.R.

A HELD: The factual scenario goes to show that cross
examination was conducted on 24.7.2006 and the appli- i.-
cation in question was filed on 1.8.2006. The application
was filed in terms of order XIX Rule 1 CPC. The conclu-
sions of the High Court, that the sole object in making the
B application was to protract the litigation, is not factually
correct. The earlier Civil Revision Petition was disposed
of on 29.3.2006. On 24.7 .2006, son of the respondent (CW
1) was examined after being summoned. The occasion
/
......
for making the application arose only after such exami-
c nation, on account of the statements made denying the '
suggestions. The application was made immediately on
1.8.2006. In view of the above, order of the High Court is
set aside. Trial Court shall pass necessary orders in terms
of the prayer made by the appellant. [Paras 4 and 5] [936-
G & H; 937-A,B & C] ',.
D
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4364
of 2008
From the final Judgment/Order dated 28.9.2006 of the High
Court of Judicature Andhra Pradesh at Hyderabad in Civil Re-
E vision Petition No. 4100 of 2006
Y. Raja Gopala R~o. Y. Ramesh, Y. Vismai and B.V. Niren
for the Appellant.
The Judgment of the Court was delivered by
F ---
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of learned
Single judge of the Andhra Pradesh High Court dis.missing the.
Civil Revision Petition filed by the appellant. Challenge in the
G Civil Revision Petition was to the order dated 7.8.2006 passed .)I

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 Evi-
H
DAMARA VENKATA MURALI KRISHNA RAO 935
-t v. GURUJUPALLI SATVATHAMMA [Dr. ARIJIT PASAYAT, J]
dence Act, 1872 (in short the 'Act'). Prayer was to send Exh. A
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:
B
The respondent-plaintiff filed a suit against the petitioner
defendant for recovery of Rs.2,28, 150/- basing on a promis-
sory 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 dis- c
puted the suit promissory note. He took the plea that he had
some transactions with the son of 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
D
defendant. When the case came up for arguments, the peti-
tioner-defendant filed I.A. No. 432 of 2005 with a prayer to re-
open the case for his evidence and I.A. No. 433 of 2005 to sum-
mon 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 E

.......... 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.
·J.
The relevant portion of the order passed by the High Court F
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 proposition. The very occasion to reopen the
evidence would arise, after it is closed. Further, it is not as G
t.... 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 H
936 SUPREME COURT REPORTS [2008] 10 S.C.R.

A adjudication from alkpossible ·angles.
For the foregoing reasons, the Civil Revision Petitions are
allowed and the orde:rs unde'r revisions are set aside.. Conse-
quently, I.A. Nos. 432 and 433 of 2005 shall stand allowed. The
trial court shall take necessary steps for summoning the son of
8 the respondent, by name Gurujubilli Sriram Murthy. There shall
be no order as to costs."
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
c plaintiff by name Garujupalli Srirammurthy. He came to be ex-
amined 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 de-
nied the signatures appearing on Exs. B 1 and B 12. The trial
Court closed the evidence and posted the case for arguments.
0
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
E 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 appli<;a-
tion 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.
F
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. B 1 to B 12 to hand writing expert after
G the close of the evidence and when the case came up for argu-
ment 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 ex-
amination was conducted on 24.7.2006 and the application in
H question was filed on 1.8.2006. The application was filed in
DAMARA VENKATA MURALI KRISHNA RAO 937
v. GURUJUPALLI SATVATHAMMA [Dr. ARIJIT PASAYAT, J]

terms of order XIX Rule 1 of the Code of Civil Procedure, 1908 A ,
(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. B
On 24. 7.2006, son of the respondent (CW 1) was examined
after being summoned. According to the appellant, the occa-
sion for making the application arose only after such examina-
\ tion, on account of the statements made denying the sugges-
tions. The application was made immediately on 1.8.2006. C
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 al-
lowed to the aforesaid extent without any order as to costs.
K.K.T. Appeal partly allowed.