G. Yethirajulu ORDER
G. Yethirajulu, J.
1. This Revision Petition has been filed by the defendant in O.S. No. 31 of 2005 on the file of the Additional Senior Civil Judge (Fast Track Court) at Gudivada.
2. The respondents-plaintiffs filed the suit for declaration that they got a right of passage of a width of 12 feet on the north east corner of plot No. 3 belonging to the defendant for ingress and egress and for consequential injunction directing the defendant to demolish the structure covered by schedule 'AB' and to grant permanent injunction restraining the defendant and his men from ever interfering with the joint possession and enjoyment of right of passage. In the plaint, it was mentioned that after purchase of the properties by both parties, they came to an understanding to leave 12 feet wide passage and on 15-09-1987, they reduced their understanding to writing. The plaintiffs filed the said agreement of understanding before the lower Court, which is an unregistered document. The defendant in the written statement categorically denied the execution of such agreement of understanding and is contending that the plaintiffs have no right of passage as claimed by them.
3. At the earliest time, the defendant filed an Application to send the disputed documents to the expert. But, the lower Court dismissed the Application by observing that it is premature. Later, at the time of commencement of the trial, the defendant filed I.A. No. 166 of 2008 reiterating his request to send the document to the handwriting expert for comparison. The plaintiffs opposed the Application by placing some decisions before the lower Court. The lower Court passed an order, dated 27-06-2008, which reads as follows:
After hearing both sides and perusing the petition and counter it is noticed that it is not necessary to send the agreement for the comparison and opinion of hand writing expert. The court may compare the signatures with admitted signatures of the executant of the document to form an opinion.
In view of the discussion I hold that the petition is not maintainable and it is liable to be dismissed.
4. Section 45 of the Indian Evidence Act, 1872 (for short 'the Act') reads as follows:
45. Opinions of experts-When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts.
Under the above Section, a document can be sent to the handwriting expert for the purpose of comparison of handwriting or signatures on the disputed document. Section 73 of the Act reads as follows:
73. Comparison of signature, writing or seal with others admitted or proved.-In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger impressions.
Under the above Section, the Court can compare the signatures on the disputed document with the admitted signatures.
5. In the present case, the defendant took a specific plea that the agreement of understanding was not signed by him. He also made an Application under Section 45 o........