VIRUPAXAPPA CHANDRASEKHARAPPA ABBIGERI Vs. G. PURUSHOTTAM

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 25.09.2012 passed on I.A. No. 15 in O.S. No. 53/1999. The petitioner herein is the defendant in O.S. No. 53/1999. At the first instance, when the suit was pending before the Court below, the petitioner had filed I.A. No. 3 seeking appointment of a Commissioner viz., a handwriting expert to examine the signature since it was the contention of the defendant that the signature on the pro -note, based on which the suit was filed, is not that of the defendant. The Trial Court had not considered the application, but, ultimately, the suit had been decreed. In that circumstance, the petitioner was before this Court in R.F.A. No. 2509/2006. The appeal was disposed of on 24.08.2011. In the said judgment of this Court it is noticed that this Court found that there was some variation in the signature and, therefore, the opinion of the expert is necessary and, in that view, I.A. No. 3 which had been filed by the petitioner at an earlier instance was allowed and the handwriting expert, as sought for in the application, was appointed and the Court below was, directed to pass fresh judgment thereafter. In that view, the handwriting expert was appointed as the Commissioner and the opinion has been given. Since the plaintiff, in the course of the cross -examination, had elicited from the expert that the latest handwriting had not been taken into consideration and the variations could be due to time gap, has thereafter filed an application seeking appointment of another handwriting expert. The said application has been allowed by the impugned order dated 25.09.2012 and the Court Commissioner i.e., the hand writing expert has been appointed. It is against the said order, the petitioner is before this Court.

(2.) HAVING heard the learned counsel for the parties and from the sequence, as noticed above, the fact that the application had been filed for appointment of an handwriting expert by the defendant, at first instance, in I.A. No. 3 is not in dispute. It is in fact the very same application that has been allowed and the hand writing expert is appointed. In that circumstance, the question is as to whether one more Commissioner could have been appointed, is necessary to be considered. Learned counsel for the respondent would refer to the objections filed to I.A. No. 3 to point out that, at the first instance itself, the respondent had contended that even if the expert is to be appointed an Government approved handwriting expert be appointed. It is also pointed out that, subsequently, since in the cross -examination of the appointed handwriting expert it was admitted that the recent signature has not been taken for comparison and that there would be variation in the signature due to time gap, the present application has been filed to set at rest the doubt created in the mind of the Court inasmuch as the second opinion would resolve the issue. In my opinion, if the application as filed by the respondent is allowed at this juncture, it would amount to re -writing the observations made by this Court in the judgment passed in R.F.A. No. 2509/2006. In fact, the expert who has been presently appointed and who has rendered the opinion, is in view of the order passed by this Court wherein the application was allowed. If the contention of the learned counsel for the respondent that a different handwriting expert recognised by the Government was to be appointed, such clarification was always available to be obtained when the RFA was being 'disposed of. At this juncture, when the Commissioner has been appointed and the opinion has been given and the Commissioner was examined before the Court, merely because certain answers have been elicited in the cross -examination that by itself cannot be a ground to file one more application. If, in the cross -examination, the opinion rendered by the Commissioner has been discredited by the plaintiff, certainly it would be open for the plaintiff to bring it to the knowledge of the Court when ultimately the entire materials and evidence is to be appreciated by the Court below and thereafter, the Court below will take into consideration as to whether the opinion rendered by the expert appointed should weigh in the mind of the court or any other decision should be taken. Therefore, the present impugned order dated 25.09.2012 appointing another expert for the same purpose regarding which opinion is already given, cannot be justified and the same is set aside. The Court below shall now proceed on the available evidence on record and if the respondent has any grievance it can be urged in the appeal if the judgment is rendered against him.