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2015 DIGILAW 198 (ORI)

Bijayalaxmi Biswal v. Tunilata Nayak

2015-03-25

S.PANDA

body2015
JUDGMENT S. PANDA, J. - This Civil Miscellaneous Petition has been filed by the petitioners challenging the order dated 22.02.2014 passed by the learned Civil Judge (Senior Division), Nimapara in C.S No.29 of 2010 rejecting an application filed under Order 26, Rule 10-A of C.P.C for scientific examination of the admitted signature of defendant no.1 appearing in the written statement and undertaking with the signature contained in the Sale Deed. 2. The brief facts of the case are that the petitioners as plaintiffs filed C.S. No.29 of 2010 before the learned Civil Judge (Senior Division), Nimapara for declaration that the Registered Sale Deed No.370 dated 20.02.1998 executed by defendant no.2 in favour of defendant no.1 in respect of Schedule-A and A-1 of the land is void and not binding against the plaintiffs and for confirmation of their title and possession over the suit land. In the plaint it was pleaded that the Stamp Paper used for creating the Sale Deed were Telgi Stamp Scam Papers and there is fraud in the registration and the Sale Deed was fraudulently created. No consideration was paid and defendant no.1 never endorsed her signature on the said Sale Deed. Defendant nos.1 and 3 (opposite party nos.1 and 3) appeared in the suit and filed their written statement jointly inter alia taking a stand that the suit has not been properly valued and proper Court fee has not been paid. The suit is bad for non joinder of necessary parties. The plaintiffs have no title and possession over the suit land therefore the suit is not maintainable. Defendant No.2 (opposite party no.2) also filed his written statement contending that defendant No.3 managed to obtain the illegal deed in favour of defendant no.1. The alleged deed is nothing but a sham and void transaction and fraud has been perpetrated by defendant No.3. 3. Defendant No.2 (opposite party no.2) also filed his written statement contending that defendant No.3 managed to obtain the illegal deed in favour of defendant no.1. The alleged deed is nothing but a sham and void transaction and fraud has been perpetrated by defendant No.3. 3. While matter stood thus, before commencement of trial, the petitioners in order to establish their stand that the signature of defendant no.1 appearing in the Sale Deed dated 20.2.1998 is not her signature when compared with her admitted signatures in her written statement as well as in the undertaking given by her in I.A Nos.14 and 133 of 2010, they filed an application under Order 26, Rule 10-A of C.P.C for scientific examination by the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar of the admitted siqnatures of defendant no.1 appearing in the written statement and undertaking with the purported signature contained in the Sale Deed. Defendant nos.1 and 3 filed their joint objection to the said application stating that the application is premature and to delay the proceeding. They have also stated that since hearing of the suit has not yet commenced the allegation of the plaintiffs with regard to dispute in the signature of defendant no.1 appearing in the Registered Sale Deed which has not yet brought into evidence, the question of deciding the genuineness of the signature in the Sale Deed does not arise. The Court below after hearing the parties by the impugned order rejected the application with a finding that in absence of any prima facie evidence showing the dispute signature of defendant No.1 in the Sale Deed is a forged one, the application is premature. 4.Learned counsel appearing for the petitioners submitted that the Court below failed to appreciate the fact that defendant no.1 in her written statement specifically averred that the signature has been put by her in the Sale Deed. Therefore it is not necessary to confront the said signature during her cross-examination. He further submitted that when a party challenges the execution of a document, adequate opportunity must be given to such party to prove his stand and if the document requires scientific examination, which is neither available with the Court nor with the party, the Court below should have allowed the application. He also submitted that for effective adjudication of the dispute the disputed documents may be sent for scientific examination. He also submitted that for effective adjudication of the dispute the disputed documents may be sent for scientific examination. In support of his contention he has relied on the decisions reported in AIR 2001 ORISSA 185 and 1999 (II) OLR 319. 5.Learned counsel appearing for opposite party nos.1 and 3 however supported the impugned order and submitted that the petitioners being third party to the contract have no right to move the Court seeking declaration that the Sale Deed is void. He further submitted that opposite party no.1 has clearty admitted in the joint written statement that the signature in the Sale Deed is her own and in view of the provision of Indian Contract Act, 1872 when fraud has been practiced it renders the Sale Deed voidable at the instance of the party on whom fraud has been practiced and the petitioners have no right to challenge the same. 6.This Court in the case of Bhagirathi Sahu and others vrs. Akapati Bhaskar Patra reported in AIR 2001 ORISSA 185 held that proof of handwriting is in nature of comparison of the admitted and the disputed signature of handwriting. Section 73 of the Evidence Act authorizes the Court to compare such handwriting in order to come to its own conclusion, but it is always safe for the Court to take the aid of handwriting expert who were equipped and have the expertise to scientifically compare such handwriting with reasons and place their report which induce the Court to form its own judgment by its own observation of those materials. 6.1.In the case of Natabar Behera Vs. Batakrushna Das reported in 1999 (II) OLR 319 this Court held that scientific examination means ascertainment by observation and experiment critically tested, systematized and brought under a set of principles. Comparison of a disputed signature with the admitted ones involves specialized skill based on study. It, therefore, comes within the scientific investigation and cannot be done by a layman without having the scientific knowledge and specialization on the subject The handwriting experts for the purposes of comparison of the handwritings take enlarged photographs of the disputed and the admitted writings and examine the same by application of recognized principles and by critical tests which in most cases cannot be conveniently conducted before the Court. xx xx xx Order 26, Rule 10-A (2) provides that the provisions of Rule 10 of the said Order, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9. Thus it makes the report of a handwriting expert admissible in evidence by application of Rule 10 of the said order. The report thus admitted in evidence is merely a piece of evidence which is not conclusive and is liable to scrutiny by the Court before any reliance is placed on the same. 6.2.This Court in the case of Durga Prasad Agarwalla and another Vs. Binayendranath Banerjee and others reported in 82 (1996) CLT 737 held that Court should not mechanically send any disputed writing for opinion of the handwriting expert as soon as the prayer is made. The Court may initially look to the disputed handwriting along with the admitted handwriting to examine whether any discrepancy present itself before bare eye. If the Court finds that the application for sending the signature to handwriting expert was frivolous and there was absolutely no discrepancy warranting any reference for expert’s opinion the Court may refuse to accept such prayer. Court has to satisfy itself that prima facie case has been made out for sending the disputed writing expert. However Court should not reject the application to examine the same by itself without expert’s opinion. 7. In the case of Natabar Behera (supra) .the Court has rejected the report of the handwriting expert as the documents which were sent to the Handwriting Expert were not contemporaneous. The documents should be sent to the expert along with admitted contemporaneous documents. The document where the handwriting appears there was a gap of some period and the handwriting may change during such time. Whereas in the case of Bhagirathi Sahu (supra) the Court directed for examination of the disputed signatures by handwriting expert with that of the admitted signatures. Therefore, in the present case the said question does not arise to be considered as the document has not yet been examined by the expert. The dispute in the present case is that the Sale Deed executed by defendant no.1 is to be dedared as void one as no consideration money was paid and defendant no.1 has not put her signature thereof. The dispute in the present case is that the Sale Deed executed by defendant no.1 is to be dedared as void one as no consideration money was paid and defendant no.1 has not put her signature thereof. The defendants in their written statement denied the said fact The disputed Sale Deed being of the year 1998 and as there is no materials before the Court, a contemporaneous admitted document of the said period is to be. sent handwriting expert. The Court below rightly rejected the application as it was premature since the parties have not yet adduced evidence in support of their respective pleadings. 8. In view of the discussions made hereinabove and considering the dispute raised by the parties, this Court is not inclined to interfere with the impugned order at this stage in exercise of the jurisdiction under Article 227 of the Constitution of India. However, it is open to the petitioners to file a fresh application after the parties adduced their evidence, in such event. the Court below shall consider the same in accordance with law. The Civil Miscellaneous Petition along with Misc. Case is accordingly disposed of. CMP disposed of.