Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 844 (CAL)

Madhabi Das v. Bishnupada Naskar

2013-11-25

PRASENJIT MANDAL

body2013
Judgment : Prasenjit Mandal, J. This application is at the instance of the defendant and is directed against the order dated June 18, 2013 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.48 of 2009 thereby rejecting an application for appointment of a handwriting expert filed by the defendant. The plaintiff/opposite party herein has instituted the aforesaid suit against the defendant/petitioner herein before the learned Trial Judge for declaration and injunction praying that the registered deed of gift dated December 18, 2008 is void and other consequential reliefs. The defendant/petitioner herein is contesting the said suit by filing an appropriate written statement denying all the material allegations raised in the plaint. When the said suit was at the stage of recording evidence and the defendant tendered the documents, such as agreement, deed in question, money receipts, etc., to the plaintiff/opposite party herein, he denied the execution of the same. Under such circumstances, the application for appointment of a handwriting expert was filed by the defendant and the said application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that, by paragraph no.4 of the written statement, the defendant has specifically stated that the plaintiff, her father took money from the daughter, i.e., defendant on different dates and the said deed as mentioned in Schedule B to the plaint was executed with full knowledge of the same. The money as taken by the father from a daughter is of a considerable amount as appearing from annexures and in such a situation, the execution of a deed in the form of gift or sale-deed is to be adjudicated. This is so when the father had gifted the other properties to his sons. Anyway, since it is the specific contention of the defendant that her father had taken money from her on different dates as per annexure to the application and while on the dock, the father had denied such contention, execution of the receipts, deeds, etc. totally, in my view, in order to adjudicate the matter properly and finally, it would have been better to appoint a handwriting expert to come to a conclusion on the point in issue. Mr. totally, in my view, in order to adjudicate the matter properly and finally, it would have been better to appoint a handwriting expert to come to a conclusion on the point in issue. Mr. P.R. Mitra, learned Advocate appearing for the opposite party, has contended that the examination of the documents referred to in the application need not be done by appointment of an handwriting expert and the Court is the expert of the experts and so, the matter could be settled in the Court. He has also referred to the decision Jai Singh & ors. v. Municipal Corporation of Delhi & anr. reported in (2010) 9 SCC 385 particularly the paragraph no.15 and thus, he has submitted as to the powers and functions of the revisional court in exercising the jurisdiction under Article 227 of the Constitution of India. He has contended that the High Court should exercise the powers under Article 227 of the Constitution of India with great care, caution and circumspection and that the exercise of jurisdiction must be within well-recognized constraints. He has also referred to the decision of Mosst. Saimunissa v. Sk. Mohiuddin & ors. reported in AIR 1991 Patna 183 and thus, he has submitted that the gift in lieu of dower-debt is not valid. So, the question of payment need not be considered. With due respect to Mr. Mitra, I am of the view that this submission cannot be accepted at all for proper adjudication of the matter in dispute. The learned Trial Judge should have appointed a handwriting expert as prayed for. The impugned order, therefore, cannot be sustained. The application is, therefore, allowed. The impugned order is hereby set aside. The application for appointment of a handwriting expert filed by the petitioner stands allowed. The learned Trial Judge shall proceed with the suit from that stage giving a specific time within which the report is to be submitted by the concerned expert. Considering the circumstances, there will be no order as to costs.