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2015 DIGILAW 460 (ORI)

Sibaram Subudhi v. Padmabati Patra

2015-08-05

AKSHAYA KUMAR RATH

body2015
JUDGMENT : Akshaya Kumar Rath, J. 1. Aggrieved by and dissatisfied with the order dated 31.3.2004 passed by the learned Ad hoc Addl. District Judge, Khurda in C.S. No. 47/67 of 2003, the petitioner has filed the instant petition. By the said order, the learned trial court has sent the document, said to have been executed by the defendant for alienation of the suit land in favour of the plaintiff, to the handwriting expert for examination. 2. Opposite party as plaintiff laid a suit for specific performance of agreement in the court of learned Civil Judge (Senior Division), Khurda, which was registered as C.S. No. 47 of 2003. The same was subsequently transferred to the court of learned Ad hoc Addl. District Judge, Khurda and re-numbered as C.S. No. 47/67 of 2003. The case of the opposite party-plaintiff is that the petitioner-defendant is the owner of the suit schedule property. The defendant had taken a sum of Rs. 25,000/- from the plaintiff on 30.3.2000. Thereafter, he had taken Rs. 75,000/- on different occasions. Thus a sum of Rs. 1,00,000/- had been taken by the defendant. On 10.4.2000, the defendant expressed his inability to repay the loan and agreed to sell the suit schedule property and suggested the plaintiff to purchase the same. The plaintiff agreed to the proposal. The consideration amount was settled at Rs. 2,00,000/-. It was settled between the parties that the defendant will execute the registered sale deed after receipt of the balance consideration amount and thereafter he will deliver the possession. He executed the plain paper agreement. It is further stated that the plaintiff on several occasions offered the balance amount to the defendant and requested him to execute the sale deed, but the defendant did not execute the sale deed. On 17.3.2003 the plaintiff had sent a lawyer's notice to the defendant. 3. Pursuant to issuance of notice, the defendant has filed the written statement contending, inter alia, that the suit is hit under the provision of the Orissa Money-lenders' Act, 1939. The suit schedule land along with building is his only residential house. He has never received a sum of Rs. 1,00,000/- from the plaintiff nor executed the agreement. 4. While the matter stood thus, the plaintiff filed an application under Section 45 of the Indian Evidence Act to send the agreement said to have been executed by the defendant to the handwriting expert. He has never received a sum of Rs. 1,00,000/- from the plaintiff nor executed the agreement. 4. While the matter stood thus, the plaintiff filed an application under Section 45 of the Indian Evidence Act to send the agreement said to have been executed by the defendant to the handwriting expert. The defendant objected to the same on the ground that the document is in sealed cover and has not seen the light of the day and, as such, there is no need to send the same to the handwriting expert. 5. By order dated 31.3.2004, the learned trial court came to hold that the defendant has categorically stated in the written statement that neither he had taken any loan from the plaintiff, nor executed any document to alienate the suit schedule land. Thus the execution of the document has been denied by the defendant. Under such circumstances, it is not possible on the part of the plaintiff to prove the signature appearing in the document by oral evidence. Having held so, the learned trial court allowed the prayer and directed the plaintiff to deposit a sum of Rs. 1500/- for examination of the document by an expert. 6. Heard Mr. Kar, learned counsel for the petitioner and Mr. Rath, learned counsel for the opposite party. 7. Before delving deep into the matter, it is pertinent to mention here the nature of this proceeding : Whether the instant petition is filed under Article 226 or Article 227 of the Constitution of India? 8. This is not a virgin ground in so far as the question is concerned. The same has been set at rest by the apex Court in the case of Radhey Shyam and another v. Chhabi Nath and others, (2015) 5 SCC 423 . In Radhey Shyam (supra) the question arose before the apex Court, as to whether the law laid down in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 that judicial orders passed by the civil court can be examined and then corrected/reversed by the writ court under Article 226 of the Constitution in exercise of its power under writ of certiorari. The apex Court in paragraph-27 of the report came to hold that the judicial orders of the civil courts are not amenable to a writ of certiorari. The apex Court in paragraph-27 of the report came to hold that the judicial orders of the civil courts are not amenable to a writ of certiorari. It was further held that the scope of Article 227 is different from Article 226. 9. From the aforesaid pronouncement, it is crystal clear that an order passed by a civil court can only be assailed under Article 227 of the Constitution of India. The said view has been affirmed in Sh Jogendrasinhji Vijaysinghji v. State of Gujarat & others, Civil Appeal No. 2374 of 2015 disposed of on 6.7.2015. 10. The parameters of challenge have been laid down by the apex Court in catena of decisions. Under Article 227 of the Constitution, the High Court has the power of superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. The power to issue writs is not the same as the power of superintendence. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law. Under Article 227 what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. The proceeding under Article 227 is not an original proceeding as held by the apex Court in the case of Umaji Keshao Meshram and others v. Smt. Radhikabai and another, AIR 1986 SC 1272 . 11. The power under Article 227 of the Constitution is intended to be used sparingly and only in appropriate cases in order to keep the subordinate Courts and Tribunals within the bounds of their authority and not for correcting mere errors as held by the apex Court in the case of Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215 . 12. Section 75 of the Civil Procedure Code (hereinafter referred to as "the CPC") defines the power of Court to issue commissions. The said section was amended by Act 104 of 1976. Clauses (e) to (g) were inserted by the aforesaid amendment. The detail provisions of commissions have been set out in Order 26 of the CPC. 12. Section 75 of the Civil Procedure Code (hereinafter referred to as "the CPC") defines the power of Court to issue commissions. The said section was amended by Act 104 of 1976. Clauses (e) to (g) were inserted by the aforesaid amendment. The detail provisions of commissions have been set out in Order 26 of the CPC. As a consequence of the amendment made in the CPC, new Rules 10-A to 10-C have been inserted under Order 26 of the CPC. The power of the court to issue commission has been widened by virtue of the amendment made in Section 75 of the CPC. Clause (e) of Section 75 of the CPC empowers the Court to issue commissions to hold a scientific, technical, or expert investigation when it is needed for determination of any issue before the court. Order 26 Rule 10-A of the CPC provides that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it is necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to enquire into such question and report thereon to the Court. 13. A Division Bench of this Court, in the case of Natabar Behera v. Batakrishna Das 62 (1986) CLT 613 came to hold 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 lay man without having the scientific knowledge and specialisation 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. In the said case, the genuineness of the signatures in the agreement having been disputed, the learned trial court issued a commission for investigation by an expert. The said order was affirmed in the aforesaid case. 14. In the said case, the genuineness of the signatures in the agreement having been disputed, the learned trial court issued a commission for investigation by an expert. The said order was affirmed in the aforesaid case. 14. Considering the case on the anvil of the decisions cited supra it is seen that the stand of the plaintiff that the defendant had executed an agreement and received a part of the consideration amount to sell the suit schedule property has been specifically denied. Thus the genuineness of the signature appearing in the agreement having been disputed, the learned trial court has rightly issued a commission for investigation by an expert. The petition, sans any merit, is accordingly dismissed.