ORDER
Gopalakrishna Tamada, J.
1. This revision is directed against the orders passed by the learned Senior Civil Judge, Kothagudem in I.A. 263 of 2003 in O.S. No. 62 of 1997 dated 9-4-2003.
2. The facts which are necessary to dispose of this case are, that the respondent herein filed a suit for recovery of amounts basing on three promissory notes alleged to have been executed by the petitioner herein on different dates for Rs. 1,00,000/- each. The respondent herein was examined as PW-1 and the others were examined as PWs 2 to 5. When the suit was coming up for defendant’s evidence, the defendant i.e. the petitioner herein has come up with this application i.e. I.A. 263 of 2003 for sending up of the promissory notes to an expert to ascertain as to whether the said promissory notes were executed on different dates or were executed on a particular day simultaneously. However, the Court below refused to entertain the said petition and accordingly dismissed it. Hence, this revision.
3. According to the learned counsel for the petitioner Mr. Satyanarayana, the petitioner does not know the respondent at all and he gave four blank promissory notes in favour of his partner Venkateswarlu for Rs. 10,000/- each and now the said Venkateswarlu. may be in collusion with the respondent herein, fabricated the said amount from Rs. 10,000/- to Rs. 1,00,000/- and got instituted the present suit as if he executed the promissory notes for Rs. 1,00,000/- each, Further, it is the thrust of argument of the learned counsel for the petitioner that the said blank promissory notes were given on a single day but not on different dates. According to him, if the said promissory notes are sent to an expert, the expert can give an opinion as to whether all the promissory notes were executed on a particular day or on different dates. In this connection, he has drawn my attention to a judgment of this Court in Uppu Jhansi Lakshmi Bai v. J. Venkateswara Rao, .
4. On the contrary, learned counsel for the respondent Mr. Sreedhar opposed the said submission stating that the petitioners is trying to protract the litigation and at every stage he is coming up with some sort of petition or the other and in all, during the pendency of the suit, he has come up with 12 petitions and has thus successfully managed to see that the suit is prolonged or protracted till 2003. Now in 2003, he has come up with the present plea that the blank promissory notes alleged to have been executed were executed on the same day but the respondent herein in collusion with the said Venkateswarlu has put different dates and instituted the suit. According to the learned counsel for the respondent, the entire evidence on behalf of the plaintiff was over and when the matter is coming up for the evidence of the defendant, instead of cooperating with the same in proceeding further with the suit, the petitioner is trying to get the matter adjourned on some pretext or the other. According to the learned counsel, the order passed by the learned Senior Civil Judge is perfectly valid and no interference is called for.
5. No doubt, it is true that a learned Judge of this Court in Uppu Jhansi Lakshmi Bai v. J. Venkateswara Rao, (referred supra) has taken a view, following the opinion of ‘Albert S. Osborn’, as follows :
“there are those also who pretend to say how old a writing is by merely examining it with a hand magnifier or a microscope. This always is an exhibition either of Ignorance or dishonest presumption. The chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based as can easily be demonstrated by fair tests on documents of known age”.
6. Further, the learned Judge has discussed the said opinion of Albert S. Osborn as follows :
“By recording to colour as first seen, any observer with good eyesight can on second view answer the question whether an ink is still undergoing a change in colour. This kind of an ink examination often furnishes conclusive evidence that a document is not as old as it purports to be.
… … … ….
It is important to know that the colour of the ink on a suspected document, if it is promptly examined, may thus be the means of showing that the document is not genuine. If a writing of this kind purports to have been written long before and it can be shown that the ink has not yet reached its final depth of colour, and it actually goes through those changes that are characteristic of ink during the first months or year of its history, it is only necessary to prove this fact to invalidate the document”.
7. Thus, following the said opinion of Albert S. Osborn the learned Judge has allowed the said revision and directed the then District Munsif to send the documents to a Finger Print Expert. However, the Apex Court on an earlier occasion had decided an issue of this nature holding that the mere opinion of expert cannot override the positive evidence of the attesting witnesses. It is relevant to extract the relevant paragraph of the said judgment of the Apex Court in Shashi Kumar v. Subodh Kumar, , which is as follows :
“Finally we may point out that the expert admitted in his evidence that it was only by a chemical test that it could be definitely stated whether a particular writing was of a particular year or period. He also admitted that he applied no chemical tests in this case. So his opinion cannot on his own showing have that value which it might have had if he had applied a chemical test. Besides we may add that Osborn on “Questioned Documents” at p. 464 says even with respect to chemical tests that “the chemical tests to determine age also, as a rule, are a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based”. In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances”.
8. From the judgment of the Apex Court it is clear that even if the documents as sought for by the petitioner herein are sent to a finger print expert and the finger print expert opines that all the documents are signed on a single day simultaneously but not on different dates as alleged by the respondent herein, no fruitful purpose would serve in view of the fact that ultimately the said evidence of the expert cannot override the positive evidence of the attesting witnesses. In the instant case, according to the learned counsel for the respondent, the attesting witnesses were examined as PWs 2 to 6 and they have supported the case of the respondent i.e. the plaintiff.
9. Hence, I am not inclined to accept the said contention of the learned counsel for the petitioner and accordingly the revision is dismissed.
10. It is brought to my notice by the
learned counsel for the petitioner that by
the time the stay orders are granted by this
Court in the revision, the Court below proceeded further with the examination of the
defendant and as the petitioner-defendant
was absent, the Court-below closed the evidence of the defendant and posted the suit
for arguments. In view of my observations
and also taking into account the fact that
this Court granted stay and by the time the
stay orders were communicated the Court
below closed the evidence of the defendant.
I deem it fit to direct the Court-below to accept any petition, if filed by the petitioner
for a re-opening of the defendant’s evidence,
and proceed further in accordance with law.