REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO.                  OF 2008 (Arising out of SLP (C) No.18128 OF 2006)

Damara Venkata Murali …Appellant

Krishna Rao

Versus

Gurujupalli Satvathamma …

Respondent

J U D G M E N T  

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 dismissing the

Civil Revision Petition filed by the appellant.  Challenge in the

Civil Revision Petition was to the order dated 7.8.2006 passed

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

Evidence Act, 1872 (in short the ‘Act’).   Prayer was to send

Exh.  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:

The respondent-plaintiff filed a suit against the petitioner

defendant  for  recovery  of  Rs.2,28,150/-  basing  on  a

promissory  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  disputed  the  suit  promissory  note.  He

took the plea that he had some transactions with the son of

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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 defendant. When

the case came up for arguments, the petitioner-defendant filed

I.A. No. 432 of 2005 with a prayer to reopen the case for his

evidence and I.A. No. 433 of 2005 to summon 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 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.

The  relevant  portion  of  the  order  passed  by  the  High

Court 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

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proposition.  The  very  occasion to reopen the

evidence  would  arise,  after  it  is  closed.

Further,  it  is  not  as  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 adjudication from all possible angles.

For  the  foregoing  reasons,  the  Civil

Revision Petitions are allowed and the orders

under  revisions  are  set  aside.  Consequently,

I.A.  Nos.  432  and  433  of  2005  shall  stand

allowed.  The  trial  court  shall  take  necessary

steps  for  summoning  the  son  of  the

respondent,  by  name  Gurujubilli  Sriram

Murthy. There shall be no order as to costs."

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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 plaintiff  by name Garujupalli  Srirammurthy.  He

came to be examined 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 denied the signatures appearing on Exs. B 1 and

B 12. The trial Court closed the evidence and posted the case

for arguments. 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  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  application  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.   

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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. B1 to B12 to hand

writing expert  after  the close  of  the evidence  and when the

case came up for argument 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

examination was conducted on 24.7.2006 and the application

in question was filed on 1.8.2006.  The application was filed in

terms of order XIX Rule 1 of the Code of Civil Procedure, 1908

(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.  On 24.7.2006, son of the respondent (CW 1) was

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examined after being summoned.  According to the appellant,

the occasion for making the application arose only after such

examination, on account of the statements made denying the

suggestions.  The  application  was  made  immediately  on

1.8.2006.        

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

allowed to the aforesaid extent without any order as to costs.

……………………… ….J.

(Dr. ARIJIT PASAYAT)

……………………….…J. (P. SATHASIVAM)

New Delhi, July 14, 2008

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