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2008 DIGILAW 328 (CAL)

Lal Mohan Mukherjee v. Md Wasim

2008-03-25

JYOTIRMAY BHATTACHARYA

body2008
Judgment :- (1.) AN order of appointment of the handwriting expert for his opinion with regard to the genuinety of the purported signature of the petitioner appearing on the acknowledgement card, passed by the learned Trial Judge, is challenged by the plaintiff/petitioner in this revisional application. (2.) THE plaintiff/petitioner filed a suit for partition. The plaintiff claims in his plaint that he could not exercise his right of pre-emption, as no notice was served upon him by his co-sharers, i. e., the opposite party Nos. 3 to 15 intimating him about their intention to sell their shares in the suit property in favour of Mr. Mukherjees clients. (3.) MR. Mukherjees clients are contesting the said suit by filing written statement alleging therein that the notice was served upon the plaintiff/ petitioner by their vendors intimating him about their intention to sell their shares in the suit property but since the petitioner did not respond to the said notice, the opposite parties No. 3 to 15 sold their shares in the suit property in favour of Mr. Mukherjees client. (4.) A dispute has cropped up as to whether such service was in fact effected upon the plaintiff/petitioner or not, as the plaintiff/petitioner denied receipt of such notice. (5.) TO establish the said contention of Mr. Mukherjees clients regarding service of such notice upon the petitioner, Mr. Mukherjees clients applied for appointment of a handwriting expert for his opinion with regard to the genuineness of the purported signature of the petitioner appearing on the acknowledgement card. (6.) SUCH prayer for appointment of an expert, was allowed by the learned Trial Judge by the order impugned. (7.) BEING aggrieved by the said order, the plaintiff/petitioner filed this revisional application before this Court. (8.) HEARD the learned Advocate for the parties. Considered the materials on record including the order impugned. (9.) FACT remains that the disputed acknowledgement card has not been proved by the defendants/opposite parties till date. The said document has not yet been admitted into evidence in the said suit. (10) UNLESS the disputed document is proved by evidence, in my view, no useful purpose will be served by appointment of a handwriting expert for ascertaining the genuineness of the purported signature of the petitioner appearing on the disputed acknowledgement card. The said document has not yet been admitted into evidence in the said suit. (10) UNLESS the disputed document is proved by evidence, in my view, no useful purpose will be served by appointment of a handwriting expert for ascertaining the genuineness of the purported signature of the petitioner appearing on the disputed acknowledgement card. (11.) THIS conclusion is arrived at by this Court because of the fact that, in the event the opposite parties fail to discharge his initial onus of proof regarding acceptance of such service of notice by the petitioner by signing on the said acknowledgement card and unless the said acknowledgement card is exhibited in the suit, the entire exercise which will be made in the process of such comparison will be practically futile and meaningless. (12.) UNDER such circumstances, this Court holds that the application for appointment of a handwriting expert, is a premature one. Accordingly, this Court cannot permit the impugned order to be retained on record. The impugned order, thus, stands set aside. (13.) IT is, however, made clear that in the event, the disputed acknowledgement card and the purported signature of the petitioner appealing in the said acknowledgement card, is proved and the same is marked as an exhibit in the suit, then the Court may consider the requirement of sending such document to the expert for his opinion provided however such prayer comes from any of the parties before the learned Trial Judge after the said document is exhibited and the purported signature is proved. If occasion so arises, the learned Trial Judge will consider such prayer on its own merit, notwithstanding the fact that the impugned order is set aside by this Court. The revisional application is, thus, disposed of. Revisional application allowed.