Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 359 (ORI)

Ramaballahaba Mishra v. Somanath Satpathy

2015-06-17

S.PANDA

body2015
JUDGMENT S. PANDA, J. - This Civil Miscellaneous Petition has been filed by the petitioner challenging the order dated 29.01.2015 passed by the learned 2nd Addl. Civil Judge (Senior Division), Cuttack in C.S. No.621 of 1988 allowing an application filed by defendant No. 1 under Order 26, Rule 10-A of C.P.C. for examination of certain documents by handwriting expert. 2. The brief facts of the case are that the petitioner as plaintiff filed T.S No.621 of 1988 before the learned 2nd Add!. Civil Judge (Senior Division), Cuttack for partition of Schedule ‘B’ properties wherein the plaintiff has 8 annas interest and defendant nos.1 to 10 also have 8 annas interest. In the plaint it was pleaded that Narahari Mishra and Chintamani Satpathy were first friends. Both agreed to have 8 annas interest each over the suit properties and 8 annas interest in the suit property of Chintamani Satpathy were sold by his legal heirs to defendant nos.11 to 21. After death of Narahari, Chintamani continued paying the profit of the business to the heirs of Narahari till November, 1956. Chintamani died on 21.12.1959. During his life time he wrote letter regarding payment of the profit of business to the heirs of Narahari. The plaintiff and defendant nos.1 to 10 are in joint possession of the suit properties and there has been no partition of the same by metes and bounds. Due to alienations there was inconvenience in possession of the plaintiff for which he filed the suit for partition. In the Major Settlement though the plaintiff raised claim, the Settlement authorities rejected his claim as the dispute between the parties being civil in nature. 3.The defendant nos.1, 2, 3, 4, 5 and 7 appeared in the suit and filed their written statement contending inter alia that the suit is barred by limitation and non joinder of necessary parties. The plaintiff has no right, title, interest and possession over the suit properties to the extent of 8 annas. The defendants have partitioned their properties for convenient of their family since 30 years and enjoying the same peacefully with the knowledge of the plaintiff. Therefore, the claim of the plaintiff that the properties are being enjoyed jointly is vague. The plaintiff has no right, title, interest and possession over the suit properties to the extent of 8 annas. The defendants have partitioned their properties for convenient of their family since 30 years and enjoying the same peacefully with the knowledge of the plaintiff. Therefore, the claim of the plaintiff that the properties are being enjoyed jointly is vague. 4.While matter stood thus, defendant no.1 filed an application under Order 26, Rule 10-A of C.P.C for examination of the following documents by the handwriting expert:- i)The signature of Chintamani Satpathy appearing in Ext.10 with that of Ext. B; ii) The handwriting in Ext.9 with that of in Ext. A; and iii) The numerals i.e. the date appearing in Ext.9 with the numeral in Ext. D. It was stated that the plaintiff has proved several documents out of which Ext.9 is a Post Card letter and Ext. 10 is an unregistered agreement. The signature appearing in Ext. 10 and the handwriting in Ext.9 not belongs to same and one person, which one can see in naked eye. Defendant no.1 has proved a Post Card letter written by Chintamani Satpathy as Ext. A and a registered lease deed as Ext. B in which Chintamani Satpathy put his signature. Therefore, in order to prove the genuineness of the documents filed by both defendant no.1 and the plaintiff, the same may be sent to a handwriting expert. The plaintiff filed his objection to the said application taking a stand that defendant no.1 has no locus standi to file the application as he has not filed written statement. The Court below after hearing the parties by the impugned order allowed the application so far as prayer nos. (i) and (ii) are concerned with a direction to defendant no.1 to file an undertaking to the effect that he will bear all the cost required for comparison of signature and handwriting by the handwriting expert. 5.Learned counsel appearing for the petitioner submitted that defendant no.1 has no right to lead any evidence without any pleading. He further submitted that leading evidence and thereby disputing the relied documents will not attract the scope of Order 26, Rule 10-A of C.P.C. In support of his contention he has relied on the decision reported in 106 (2008) CLT 721. 6. He further submitted that leading evidence and thereby disputing the relied documents will not attract the scope of Order 26, Rule 10-A of C.P.C. In support of his contention he has relied on the decision reported in 106 (2008) CLT 721. 6. Learned counsel appearing for opposite party no.1 however supported the impugned order and submitted that for effective adjudication of the dispute the disputed documents may be sent for scientific examination. Hence the impugned order need not be interfered with. 7.In the case of Raj Kishroe Dash Vs. Ramaniranjan Das reported in 106 (2008) CLT 721, a Division Bench of this Court held that handwriting may be proved on admission of the writer by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is not necessary. Section 73 of the Evidence Act prescribes comparison by the Court with a writing made in its presence or admitted or proved to be the writing of the person. 7.1This 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. 7.2In the case of Natabar Behera Vs. Batakrishna Das reported in AIR 1987 ORISSA 7 this Court held that 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. 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. 8.In view of the aforesaid settled position of law, since the Court below has directed for examination of the documents by handwriting expert, there is no error apparent on the face of the record so as to warrant interference by this Court in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, this Court is not inclined to interfere with the impugned order. The Civil Miscellaneous Petition along with Misc. Case is dismissed. CMP dismissed.