M A SULTHAN MOHIUDDIN Vs. MOHAMMAD SULEMAN BABU

JUDGEMENT

(1.) The petitioner is the 2nd defendant in O.S.No.680 of 1998 on the file of Principal Junior Civil Judge, Gudivada. The 1st respondent filed the suit against the 2nd respondent and the petitioner for recovery of certain amount on the strength of a promissory note. The petitioner denied his signature on Ex.A-1 and pleaded that it was forged. He filed I.A.No.48 of 2006 under Section 45 of the Evidence Act to send the promissory note marked as Ex.A-1 for the opinion of handwriting expert, for comparison with admitted signatures. The application was opposed by the 1st respondent and through its, order dated 06-02-2006, the trial court dismissed the I.A. Hence, this Civil Revision Petition.

(2.) Sri. P.R. Prasad, learned counsel for the petitioner, submits that the reasons assigned by the trial court, while dismissing I.A., are untenable. He contends that the petitioner raised the plea of forgery in the written statement itself and there was no justification for the trial court in taking the view that the petitioner ought to have raised the objection in reply to the suit notice. He further contends that the denial by the petitioner of his signature on the vakalat and on the acknowledgment was on account of confusion. Learned counsel points out that when where is a serious dispute as to the genuineness of the signature on the promissory note, an expert opinion would go a long way in resolving the controversy.

(3.) The suit filed by the 1st respondent was initially decreed ex-parte. However, the ex-parte decree was set aside in the year 2004 on condition that the petitioner shall deposit the entire suit amount. After the suit was restored, the trial court has taken up the trial of the matter. The petitioner filed I.A. under Section 45 of the Evidence Act for sending the promissory note for examining the genuineness of the signature on it. One of the reasons assigned by the trial court in not acceding to the request of the petitioner is that he did not take the plea of forgery in his reply to the notice issued by the first respondent. Once it has emerged that the petitioner has raised the plea in the written statement, the mere fact that such a plea did not find place in the reply notice cannot be treated as a ground for rejecting the application.