Kunuru Lakshman, J.

1. The present Civil Revision Petition is filed challenging the order dated 26.04.2022 passed in I.A. No. 123 of 2018 in O.S. No. 116 of 2017 by the learned II Additional District and Sessions Judge (FTC), Mahabubnagar (hereinafter referred to as 'trial Court'), wherein the Court refused to send the agreement of sale dated 09.02.2015 containing the disputed signatures of the Petitioner herein for Expert Opinion/FSL Report under Section-45 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Act, 1872') for comparison with the admitted signatures of the Petitioner herein on the Vakalat and written statement.

2. Heard Mr. R. Dheeraj Singh, learned counsel for the petitioner and Mr. N. Ashok Kumar, learned counsel for respondent Nos. 1 and 2. It is mentioned in the cause title that respondent Nos. 3 to 5 are not necessary parties to the revision.

3. Facts of the case

i) Respondent Nos. 1 and 2 are the original plaintiffs who have filed O.S. No. 116 of 2017 seeking specific performance of agreement of sale dated 09.02.2015 against the petitioner herein (Defendant No. 1 in the suit). According to respondent Nos. 1 and 2, they are the legal heirs of one T. Kishan.

ii) Allegedly, the petitioner herein along with defendant Nos. 2, 3 and 4 agreed to sell land admeasuring Acs. 55-16 Guntas, situated at Manikonda Village of Kolikonda Mandal, presently merged with Mahbubnagar Mandal (hereinafter 'subject property') for a total sale consideration of Rs. 83,10,000/-to the said T. Kishan. The petitioner herein allegedly received Rs. 50,00,000/-as part of advance payment from T. Kishan and executed an agreement of sale dated 09.02.2015 in his favour. It is relevant to note that the said agreement of sale was executed on a non-judicial stamp paper bearing No. B 355988. The balance amount of Rs. 33,10,000/-was agreed to be paid on execution of sale deed, demarcation of lands and after obtaining pattadar pass books.

iii) According to respondent Nos. 1 and 2 herein, T. Kishan was always ready and willing to perform his part of the contract, but the petitioner herein failed to execute a sale deed in respect of the subject property. The said T. Kishan passed away on 09.05.2016 leaving behind respondent Nos. 1 and 2. According to respondents Nos. 1 and 2, despite continuous requests, the petitioner herein did not execute a sale deed. Therefore, respondent No. 1 got issued legal notices dated 17.06.2017 and 23.08.2017 demanding the petitioner herein to execute a sale deed in respect of the subject property. As the petitioner herein along with other defendants failed to execute the sale deed, respondent Nos. 1 and 2 filed O.S. No. 116 of 2017 seeking specific performance of agreement of sale dated 09.02.2015.

iv) The petitioner herein along with other defendants denied the allegations of respondent Nos. 1 and 2 herein and contended that they have not executed the agreement of sale dated 09.02.2015 and the signatures of the petitioner herein on the said agreement of sale were forged.

v) While the said suit was pending, the petitioner herein filed I.A. No. 123 of 2018 to send the agreement of sale dated 09.02.2015 to an Expert under Section-45 of the Act, 1872 for comparison of the disputed signatures with the admitted signatures of the petitioner herein on the Vakalat and written statement.

vi) The trial Court vide order dated 26.04.2022 dismissed the said I.A. 123 of 2018 on the ground that the petitioner herein had not filed any registered documents containing his signature which are prior in time to the disputed signatures.

vii) Further, the trial Court noted that the signatures of the petitioner herein on the Vakalat and the written statement cannot be compared as there is every possibility that the petitioner could have changed his signature on the Vakalat and written statement.

viii) Therefore, the present Civil Revision Petition is filed challenging the order passed by the trial Court.

4. Contentions of the petitioner:

i. To prove the fraud played by respondent No. 1 and show that the signatures on the agreement of sale dated 09.02.2015 were forged, it is essential that the disputed signatures be compared with the admitted signatures.

ii. There are no hard and fast rules relating to comparison of signatures by an expert. Experts can compare signatures and submit their report even if there is long gap of time between the disputed and admitted signatures. Reliance was placed on Bande Siva Shankara Srinivasa Prasad v. Ravi Surya Prakash Babu and Jonnalagadda Ravi Sankar v. Jakka Rama Krishna Rao.

5. Contentions of respondent Nos. 1 and 2:

i. The petitioner herein failed to reply to the legal notices dated 17.06.2017 and 23.08.2017, therefore, he cannot now deny his signatures on the agreement of sale.

ii. There is every possibility that the signature on the vakalat and written statement were changed by the petitioner and as no documents containing signatures of the petitioner prior to the agreement of sale were produced, the signatures on the written statement and vakalat cannot be compared with the agreement of sale.

6. Findings of the Court:

i) From the facts and the contentions of the parties, the issue before this Court is whether the trial Court was justified in refusing to send the disputed signatures on the agreement of sale dated 09.02.2015 for comparison with the admitted signatures on the written statement and Vakalat for expert opinion under Section 45 of the Act, 1872

ii) For the sake of convenience, the relevant provisions of the Indian Evidence Act, 1872 are extracted below:

"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."

"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."

iii) It is relevant to note that Section 45 of the Act, 1872, inter alia, provides that the Court can call for evidence of experts to form an opinion regarding the genuineness of signatures and handwriting which are relied on by one party and disputed by another party. It is also relevant to note that the power to seek expert opinion under Section 45 of the Act, 1872 is discretionary and depends on facts of each case. The Courts under Section 73 of the Act, 1872 can themselves compare the signatures or handwriting. However, the Supreme Court has time and again cautioned that Courts cannot act as experts in all the cases. Unless it is glaringly clear that the signatures are same or are different, the Courts should normally call for an opinion from the experts.

iv) In State (Delhi Admn.) v. Pali Ram (1979) 2 SCC 158, the Supreme Court held that prudence requires that a judge shall obtain expert opinion in the matters of comparison of handwriting. The relevant paragraph is extracted below:

"30. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."

v) In Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110, the Supreme Court held that where there is even slightest of doubt in the minds of the judge while comparing the admitted and disputed signatures, such signatures shall be sent for expert opinion under Section 45 of the Act, 1872. The relevant paragraphs are extracted below:

"37. This section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or fingerprints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act. [See: State (Delhi Admn.) v. Pali Ram  (1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14]."

vi) In Thiruvengadam Pillai v. Navaneethammal (2008) 4 SCC 530, the Supreme Court observed that it is risky to arrive at a conclusion regarding signatures and handwriting without an expert opinion. The relevant paragraph is extracted below:

"16. While there is no doubt that Court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/signature/finger impression, such comparison by Court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a Court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the Court is in a position to identify the characteristics of fingerprints, the Court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the Court should not hazard a guess by a casual perusal."

vii) In Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406, the Hon'ble Supreme Court held that, the Courts while dealing with handwriting or signatures cannot itself act as an Expert. The relevant paragraph is extracted below:

"28. The opinion of a handwriting expert is fallible/liable to error like that of any other witness, and yet, it cannot be brushed aside as useless. There is no legal bar to prevent the Court from comparing signatures or handwriting, by using its own eyes to compare the disputed writing with the admitted writing and then from applying its own observation to prove the said handwritings to be the same or different, as the case may be, but in doing so, the Court cannot itself become an expert in this regard and must refrain from playing the role of an expert, for the simple reason that the opinion of the Court may also not be conclusive. Therefore, when the Court takes such a task upon itself, and findings are recorded solely on the basis of comparison of signatures or handwritings, the Court must keep in mind the risk involved, as the opinion formed by the Court may not be conclusive and is susceptible to error, especially when the exercise is conducted by one, not conversant with the subject. The Court, therefore, as a matter of prudence and caution should hesitate or be slow to base its findings solely upon the comparison made by it. However, where there is an opinion whether of an expert, or of any witness, the Court may then apply its own observation by comparing the signatures, or handwritings for providing a decisive weight or influence to its decision."

viii) Therefore, by perusing the dicta in the above decisions it can be said that the Courts shall normally seek expert opinion when they are posed with a situation where they have to compare admitted and disputed signatures. The Courts can refuse expert opinion only when no doubt exists regarding the genuineness of the signatures after comparison of the admitted and disputed signatures. In cases where even a slightest doubt exists, the Courts shall send the admitted and disputed signatures for expert opinion under Section 45 of the Act, 1872.

ix) Now coming to the facts of the case, the trial Court vide the impugned order dated 26.04.2022 refused to send the disputed signatures on the agreement of the sale dated 09.02.2015 for comparison with the admitted signatures on the vakalat and written statement on the ground that no registered documents containing the Petitioner's signatures prior in time to the agreement of sale were produced for the sake of comparison. Further, the trial Court held that it was unsafe to compare the disputed signatures with the ones on the Vakalat and written statement as the Petitioner might have disguised his signatures on the Vakalat and written statement.

x) Before discussing the findings of the trial Court, it is apposite to refer to the law on the requirement having documents containing contemporaneous signatures for comparison by the Expert. The High Court of Andhra Pradesh in Budumuru Vijayanandh v. P. Bhagyalakshmi held that the party disputing the signature can place contemporaneous signatures or signatures prior in time to the disputed signatures for comparison. However, a party cannot be compelled to place such documents anterior to the litigation for comparison. The relevant paragraph is extracted below:

"Discretion lies with the Court to form an opinion, Inter alia as to identity of handwriting. In so doing, it is always permissible for the Court, again its discretion-to rely on the opinion of person specially skilled in questions as to identity of handwriting. Illustration (c) of Section 45 of the Act leads to an inference that when handwriting or signature on document in question and another document is produced, which is proved or admitted to have been written by the person whose signature is disputed, the opinion of experts on the question whether the two documents were written by the two persons is relevant. Therefore, for the purpose of comparison, the trial Court is bound to obtain the specimen signatures of the person who disputes his/her signature. Such obtaining of specimen signatures must be in the open Court. If the same is not done, it is well settled that the same would not amount to compelling such person to give evidence adverse to him. If there are already documents on record, which are proved to have been written or signed by the person disputing signature or handwriting, it is always open to the Court to send the specimen signatures, disputed signatures or handwriting on documents, which are proved to have been written or signed by such person for comparison. But as the law stands, the Court has no power to compel a person who disputes handwriting to produce documents anterior to the litigation. However, it is always open to the opposite party to bring another document which is admitted to have been written by the person disputing the signature. In that view of the matter, I am not able to accept the submission of the learned counsel for the respondent that the petitioner herein may be compelled to produce the documents on which he admits his signature."

xi) In Renu Devi Kedia v. Seetha Devi this Court held that the trial Court was justified in refusing to send the documents for Expert opinion as there was a gap of nine years between the disputed signature and the admitted signature on the written statement. The Court also noted that no contemporaneous documents were placed on record for comparison. The relevant paragraph is extracted below:

"5. Coming to the facts on hand, the disputed signatures are of the year 1995 and whereas the specimen signatures are of the year 2004, there is a gap of nearly nine years between the two signatures. So far as signatures of the petitioners appearing in written statement etc., there is every possibility of his disguising his style of signature so as to make them dissimilar with the disputed signatures. Since there are no contemporaneous signatures for comparison with the disputed signatures, there is no useful purpose in sending the suit documents to an expert for his opinion. The trial Court considered the matter in right perspective and dismissed the application. I do not see any valid ground to interfere with the impugned order."

xii) Similarly, this Court in Nimmagadda Padmanabha Rao v. Kosaraju Satyavathi refused to interfere with an order refusing to send documents containing signatures for expert opinion on the ground of passage of time and no contemporaneous documents available. The relevant paragraph is extracted below:

"5. Judicial notice can be taken note of the fact that with the passage of time, the pattern of signatures keeps on changing. The promissory note was of the year 1988. The petitioner did not indicate the documents, which contains any signature of contemporary period. If the promissory note is to be compared now, with his admitted signatures, there is bound to be a clear difference. From the judgment in Medikonda Rama Swarajyalakshmi's case (supra), it is not clear as to whether the application for sending the disputed document for expert opinion, was filed before the concerned witnesses were examined. Therefore, this Court is not inclined to interfere with the order under revision."

xiii) This Court in Velaga Sivarama Krishna v. Velaga Veerabhadra Rao held that expert opinion can be sought even in cases of where there is passage of time between the admitted and disputed signatures. The relevant paragraphs are extracted below:

"7. Whenever a party disputes the signature on a particular document, two remedies are open to him, either to request the Court to compare the signatures or to file an Application to send the document to the expert for Comparison. When the petitioner opted to file an Application to send the document to the handwriting expert, no prejudice will be caused to either party. When he is asserting that the signature is that of the said party, even though there is a gap between the disputed signatures and admitted signatures, a science has been developed to compare such signatures also by taking into consideration the direction of the strokes, the speed of writing, the pattern of writing etc., therefore, it cannot be said that no useful purpose will be served by sending the document to the expert. After comparison, if the similarities of the disputed signature and the admitted signatures are very negligible, then the Court can formulate its opinion with the assistance of the expert's report and by comparing the signatures whether the report has to be accepted or not. But, if the opportunity is denied to the defendant and if the matter is carried to the Appellate Court, there is every likelihood of commenting that he did not avail the opportunity of filing an Application for sending the document for handwriting expert's opinion, if he is so sure that the disputed signature does not belong to him.

8. In view of the circumstances, I am of the view that it is essential to send the document to the expert for comparison at the request of the party in the interests of justice, which cannot cause any amount of prejudice to the plaintiffs in the present suit, therefore, the order of the lower Court is liable to be set aside."

xiv) The Madras High Court in Somasundaram v. Palani held that no comparison of signatures can be done if the admitted signatures are on the documents which were brought into existence after the document containing disputed signatures. The relevant paragraph is extracted below:

"13. It is clear therefrom that the main reason for dismissing the suit is comparison of the signatures. Even though the Court may have the power to compare the signatures, there must be some admitted signature of the defendant, on the basis of which a comparison will have to be made. In this case, a comparison has been made on the basis of signatures affixed by defendant in the vakalath and written statement, which are documents that have come into existence after the dispute arose, and after the promissory note in question was filed into Court along with plaint. A comparison should not have been made on the basis of those signatures. If that be so, it has to be held that the comparison was not made in accordance with law, even though the Court is empowered to make a comparison."

xv) This Court in Jakka Rama Krishna Rao (Supra) held that merely because contemporaneous documents containing signatures are not available, Section-45 application cannot dismissed. The relevant paragraphs are extracted below:

"On behalf of the petitioner, P.W.2, the scribe of the agreement was examined. Though in the chief-examination, he supported the version of the petitioner, he appears to have stated something different in the cross-examination. Faced with this situation, the petitioner filed I.A. No. 804 of 2011 under Section 45 of the Evidence Act (for short 'the Act') with a prayer to send the document to a hand writing expert. The application was opposed by the respondents. The trial Court dismissed the I.A. through order, dated 03.12.2011 on the ground that no contemporaneous document signed by the 1st respondent is available and that the signatures on the vakalat and written statement in the suit are at variance with the one on the document. Hence, this civil revision petition.

Heard Sri Sai Gangadhar Chamarthy, learned counsel for the petitioner and Sri P, Venkat Rao, learned counsel for the respondents.

The exercise to be undertaken under Section 45 of the Act is somewhat typical. It is only an expert, who is conversant with the niceties of writing etc., that can express his view as to whether a particular writing or signature sent for comparison is that of the person, who is alleged to have subscribed to it. The existence of contemporaneous documents would certainly be helpful to an expert. Further, if the signatures on the depositions or the vakalat or pleadings are similar to those on the disputed document, they may also, be of help. However, it is too difficult to expect the existence of contemporaneous documents or similarity between signatures on the disputed documents and those on the pleadings and vakalat. Mere absence of such helpful circumstances cannot render the whole exercise under Section 45 of the Act impossible or untenable. An expert is known for his capability to arrive at the conclusion even by taking note of the undisputed writing irrespective of the time gap between the date of the sample and the date on which the disputed document was signed. At any rate, the opinion expressed by an expert is not conclusive in nature and the parties to the litigation can certainly put forward their contentions in favour of or against such opinion. The grounds mentioned by the trial Court while rejecting the application cannot be sustained.

Accordingly, the civil revision petition is allowed and the order under revision is set aside. As a result, the I.A. stands allowed and the trial Court is directed to send the documents to an expert together with the specimen signatures of the 1st respondent taken and certified by the trial Court. The miscellaneous petition filed in this writ petition also stands disposed of. There shall be no order as to costs."

xvi) Subsequently, a Full Bench of this Court in Ravi Surya Prakash Babu (supra) noted the different views adopted by this Court and held that it is not always necessary to have contemporaneous signatures. The relevant paragraphs are extracted below:

"15. The gist of the experts opinion, emerging from the above Report, is to the effect that it is not always necessary to have contemporaneous handwritings/signatures for comparison. However, as a general rule, it would be desirable to undertake comparison of admitted handwritings/signatures with disputed handwritings/signatures which fall within the range of 2 or 3 years from each other. Therefore, there can be no hard and fast norm as to when comparison can or cannot be undertaken owing to the time lag between the two sets of handwritings/signatures. Various other factors would have to be taken into consideration, as opined by the experts, quoted hereinbefore. Each case would turn upon its own facts and circumstances relating to the time lag, the change in the handwriting/signature, the capability of correlating the two sets and ultimately, the opinion of the expert himself as to whether the two sets can be compared. It is therefore not open to the Court to refuse to entertain an application seeking comparison of disputed handwritings/signatures with admitted handwritings/signatures on the ground of a long lapse of time between the two sets of handwritings/signatures.

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27. We accordingly answer the reference as under:

It is essentially within the judicious discretion of the Court, depending on the individual facts and circumstances of the case before it, to seek or not to seek expert opinion as to the comparison of the disputed handwriting/signature with the admitted handwriting/signature under Section 45 of the Indian Evidence Act, 1872. The Court is however not barred from sending the disputed handwriting/signature for comparison to an expert merely because the time gap between the admitted handwriting/signature and the disputed handwriting/signature is long. The Court must however endeavour to impress upon the petitioning party that comparison of disputed handwritings/signatures with admitted handwritings/signatures, separated by a time lag of 2 to 3 years, would be desirable so as to facilitate expert comparison in accordance with satisfactory standards. That being said, there can be no hard and fast rule about this aspect and it would ultimately be for the expert concerned to voice his conclusion as to whether the disputed handwriting/signature and the admitted handwriting/signature are capable of comparison for a viable expert opinion. The view expressed by the Division Bench in JANACHAITANYA HOUSING LIMITED v. DIVYA FINANCIERS, as to the stage of the proceedings when an application can be moved by a party under Section 45 of the Indian Evidence Act, 1872, continues to hold the field and there is no necessity for this Full Bench to address that issue."

xvii) From the above discussion, it is clear that generally availability of contemporaneous signatures is ideal for comparison of signatures. However, non-availability of contemporaneous signatures will not render an application filed under Section 45 of the Act, 1872 nugatory. The trial Court erred in refusing to send the signatures on the ground of non-availability of contemporaneous signatures. While it is true that a possibility of changing signature in the written statement and Vakalat exists, the trial Court could not have rejected the application of the Petitioner on that ground alone. It is for the expert to give opinion on the similarity of signatures and the effect of passage of time. The Court after obtaining such opinion can rely or discard such opinion. However, the Court cannot out rightly reject an application under Section 45 of the Act, 1872 on a mere presumption that subsequent signatures on the written statement and Vakalat could have been changed deliberately.

7. Conclusion:

In the result, the present Civil Revision Petition is allowed with the following directions:

i. The petitioner is at liberty to place any contemporaneous documents containing his signatures, if the same are available and the same shall be sent for expert opinion for comparison with the signatures on the agreement of sale, written statement and Vakalat.

ii. If no contemporaneous signatures are placed on record, the trial Court is at liberty to obtain specimen signatures in open Court and send the same for expert opinion for comparison with the signatures on the agreement of sale, written statement and Vakalat.

iii. After obtaining such opinion, the trial Court may decide the relevance of such opinion in light of the facts and circumstances of the case.

However, there shall be no order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending in the revision shall also stand closed.