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2017 DIGILAW 1249 (ORI)

Debasis Saha v. Basudev Saha

2017-11-02

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This Civil Miscellaneous Petition involves a challenge to the order under Annexure-7 passed by the learned Second Additional Civil Judge (Sr. Divn), Cuttack rejecting an application at the instance of the defendants for sending particular documents to any other Central/State Laboratory for examination of the issue involved. 2. Leaving apart the unnecessary details, the fact required for the purpose of consideration of the case at hand is that the petitioners filed a suit for eviction against the defendants concerning the land and building appearing in the schedule. This suit was tried together along with C.S. No.222/2008 at the instance of the defendant concerning the same property. During course of cross examination of P.W.1 by the present petitioners, finding confrontation of the P.W.1 to several documents to be of different handwritings and signatures, the present petitioners as the defendants in C.S. No.482 of 2006 and the plaintiffs in C.S.No.222 of 2008 filed an application under Order 26 Rule 10(A) read with Section 75(a) and 151 of C.P.C requesting the Court to send the particular disputed handwritings, documents to handwriting experts for scientific/expert investigation and also the signatures in comparison with the admitted and specimen handwritings as well as signatures of the P.W.1 to answer the controversies raised by the P.W. 1 particularly with regard to his handwritings and signatures involving some document sought to be exhibited. The trial Court by its order dated 27.10.2014 rejected such application. Petitioners moved C.M.P. No.1405 of 2014 before this Court and this Court while setting aside the order dated 27.10.2014 remitted the matter back to the learned trial Court for reconsideration of the issue involved. It is on reconsideration of the application under order 26 Rule 10(A) of C.P.C, the trial Court accepting the petition by order dated 24.2.2015 directed for sending the disputed handwritings and signatures to the handwriting expert for examination at the cost of the petitioners. This order was challenged by the present opposite party in filing C.M.P. No.335 of 2015. This Court refusing to interfere with the impugned order by order dated 9.9.2015 directed the learned Civil Judge (Sr. This order was challenged by the present opposite party in filing C.M.P. No.335 of 2015. This Court refusing to interfere with the impugned order by order dated 9.9.2015 directed the learned Civil Judge (Sr. Divn.), 2nd Additional Court, Cuttack to send the disputed as well as admitted signatures of the petitioners to the handwriting expert immediately for opinion and also directed that the opinion shall be obtained within two months and also with further direction to the trial Court to expedite hearing of the suit involved and close the same by end of March, 2016. As a consequence of the aforesaid direction, it appears, some documents were sent to the handwriting experts through a special messenger on 28.12.2015 after a gap of six months. The C.I.D, C.B., H.W.B, Rasulgarh assigned with the work of comparison returned back the documents requesting therein for transmission of the same alongwith certain other documents. The trial Court complied with the said requirements by once again sending the documents alongwith specimen handwritings signature and short signatures of the P.W.1 again through a special messenger on 17.8.2016, which is also after a long gap. The C.I.D., C.B., H.W.B, Rasulgarh in a sealed envelope submitted its report dated 28.7.2017 as appearing at Annexure-3. On acceptance of the same by the trial Court, the petitioners filed a memo requiring full compliance of the direction of this Court dated 9.9.2015 passed in C.M.P. No.335 of 2015. The trial Court by order dated 19.4.2017 passed an order for resending of the documents for examination. It is at this stage, challenging the order dated 19.4.2017 the opposite party filed C.M.P. No.559 of 2017 in the meantime. Fresh report of the authority was received by the Court on 16.5.2017. On opening of the sealed envelope, it was found that the Department authorized returned back the document again indicating that there is no adequate sample, admitted English writings, figures, short signatures on this aspect and also with the intimation to the authority declining to collect the specimen. In the meantime the C.M.P. No.559 of 2017 was dismissed as withdrawn. Finding no finality to the requirement of the handwriting as well as signatures of the P.W.1, the petitioners filed memo alongwith an application for resending the documents for effective adjudication of the dispute. The application being declined the petitioners filed the present civil miscellaneous petition. 3. In the meantime the C.M.P. No.559 of 2017 was dismissed as withdrawn. Finding no finality to the requirement of the handwriting as well as signatures of the P.W.1, the petitioners filed memo alongwith an application for resending the documents for effective adjudication of the dispute. The application being declined the petitioners filed the present civil miscellaneous petition. 3. Assailing the impugned order, Sri Mohanty, learned Senior Advocate appearing for the petitioners submitted that for the clear direction of this Court given in C.M.P. No.335 of 2015 and for the subsequent order observing that there is requirement of such examination and for the C.I.D., C.B., H.W.B, Rasulgarh expressing its inability to come to a conclusion for non-furnishing of appropriate document, the trial Court is duty bound to send the appropriate document with required specimen to have an expert opinion on the handwriting as well as signature of the P.W.1. 4. Taking this Court to the impugned order, Sri Mohanty, learned Senior Advocate appearing for the petitioners further contended that for the repeated direction for expeditious disposal of the suit, the trial Court in spite of having come to know that there has been impediments at the end of the examination, the authority to have an appropriate examination of the issue simply closing its eye rejected the application at the instance of the petitioners mechanically. Learned Senior Advocate appearing for the petitioners also contended that there is clear non-implementation of the direction of this Court given in C.M.P. No.1405 of 2014 and the order involving C.M.P. No.335 of 2015 and further for no possibility of effective adjudication of the suit and in absence of proper examination of the issue involved, this Court should interfere with the impugned order and issue appropriate direction. 5. Sri Bhuyan, learned counsel for the opposite party on the other hand, while not disputing the previous direction of the trial Court for sending the document for expert opinion being not only confirmed by this Court, but taking this Court to several documents taken place in the meantime, contended that the report of the C.I.D., C.B., H.W.B, Rasulgarh having been accepted by the petitioners, there is no further scope for examination of the issue involved. 6. 6. Referring to three decisions in the case of (1) Murarilal, Appellant v. State of M.P., Respondent as reported in AIR 1980 Supreme Court 531 (2) in the case of Swami Premananda Bharathi, Appellant v. Swami Yogananda Bharathi and another, Respondents as reported in AIR 1985 Kerala 83 (3) in the case of Harihar Misra, Plaintiff, Petitioner v. Narahari Setti Sitaramiah and another, Defendants, Opposite Parties as reported in AIR 1966 Orissa 121 Sri Bhuyan, learned counsel for the opposite party contended that for the law of land cited through the above decisions, the claim of the petitioners is not sustainable. Further, submitted that for the support of the decisions to the case of the opposite party, there is right decision by the trial Court requiring no interference in the impugned order. 7. Considering the rival contentions of the parties, this Court finds, the trial Court taking up the issue involving the dispute raised by the P.W.1 with regard to his handwriting, signature in the particular document has observed as follows: “I am of the view that prima facie case has been made out for sending the disputed handwritings and signatures to the expert for comparison with the admitted ones in order to arrive at a finding. Accordingly, the petition filed on behalf of the defendants is allowed. The defendants are directed to file an undertaking to the effect that they shall bear all the cost required for comparison by the handwriting expert by 4.03.2015.” This order was assailed in C.M.P. No.335 of 2015. This Court hearing both the counsels, by order dated 9.9.2015 passed the following orders: “9.9.2015 Heard Mr. B.N. Bhuyan, learned counsel for the petitioner and Mr. Yeeshan Mohanty, learned counsel for the opposite parties. The petitioner has filed this petition challenging the order dated 24.2.2015 passed by the learned Civil Judge (Sr. Divn.), Second Additional Court, Cuttack allowing the petition filed by the opposite parties under Order 26 Rule 10-A of C.P.C. The case of the petitioner is that he has filed a suit being C.S. No.482/2006 before the learned Civil Judge (Sr. Divn.), 1st Court, Cuttack for eviction of the opposite parties and recovery of damages. The opposite parties have also filed a suit being C.S.No.222/2008 for partition. Divn.), 1st Court, Cuttack for eviction of the opposite parties and recovery of damages. The opposite parties have also filed a suit being C.S.No.222/2008 for partition. According to the petitioner, both the suit plots have been acquired by him out of his own income and another property, which was in the name of his mother, subsequently has been transferred to him by way of a compromise suit. The case of the opposite parties is that both the properties are joint family properties and they are out of the income of the joint family business. The petitioner in collusion with the mother has acquired one of the properties by a suit without making them as parties. In order to prove the case of the opposite parties that there was a joint family business and both the properties were acquired and the house was constructed from the joint family nucleolus, they filed an application to send some admitted documents available in the suit to handwriting expert. Mr. Bhuyan, learned counsel for the petitioner, states that the signatures available on Xerox copies and carbon copies of certain documents cannot be sent to handwriting expert because they are copies of the original documents. On the other hand, Mr. Mohanty, learned counsel for the opposite parties, states that due to development of science, the Xerox copies and the carbon copies of the documents can be sent for the opinion of handwriting expert, as they are equally visible to the naked eye as that of the originals. Since the opposite parties have taken a stand in the suit as well as written statement that the suit properties have been purchased out of joint family business and burden of proof lies on them, it is just and proper that the disputed as well as admitted signatures should be sent to the handwriting expert. Therefore, I am not inclined to interfere with the impugned order. Learned Civil Judge (Sr. Divn.), Second Additional Court, Cuttack is directed to send the disputed as well as admitted signatures of the petitioner for the opinion of the handwriting expert immediately and the opinion shall be obtained within a period of two months from the date of sending of the documents. He is further directed to expedite the hearing of C.S. No.482/2006 and C.S.No.222/2008 and conclude the same by the end of March, 2016. With the aforesaid direction, the Civil Misc. He is further directed to expedite the hearing of C.S. No.482/2006 and C.S.No.222/2008 and conclude the same by the end of March, 2016. With the aforesaid direction, the Civil Misc. Petition as well as the Misc. Case is disposed of. Issue urgent certified copy.” Reading of both the aforesaid orders, this Court finds, in disposal of the C.M.P. No.335 of 2015, this Court upheld the decision of the trial Court dated 24.2.2015 with clear indication of sending the disputed as well as the admitted signatures of the petitioner therein. It appears, this Court while confirming the trial Court’s order also included the admitted signatures of the present opposite party for the purpose of examination. This being the State of Affair and though for the dismissal of the subsequent civil miscellaneous petition, this Court finds, there is a clear direction as well as the situation demanding examination of such handwritings as well as signature of the P.W.1. Scanning of records, this Court nowhere finds, the allegation of learned counsel for the opposite party that the petitioners having accepted the report has no scope for pressing for a re-report, finding no support from the order or documents available on record, it is on the other hand, this Court finds from the impugned order that the trial Court accepted such opinion in non-consideration of the fact that the report is not conclusive and there has been asking for further materials to have a complete opinion. 8. Perusal of the records this Court finds, the documents have been sent twice with the purpose. Even though the same was examined but the C.I.D., C.B., H.W.B, Rasulgarh while sending back the documents has given a clear expression for non-availability of adequate sample and admitted English writings, figures and short signatures of this aspect. The Establishment is unable to have the opinion on the issue involved. Perusal of the different orders this Court finds, the trial Court while sending the materials to the above establishment, had also authorized the establishment to collect the specimen, if necessary. This Court here observes that since the Court is taking assistance of the establishment, it is for the Court to send necessary documents for appropriate examination and not the vis versa. This Court here observes that since the Court is taking assistance of the establishment, it is for the Court to send necessary documents for appropriate examination and not the vis versa. Finding that the documents are not in a position to be supporting the necessary examination and further finding that the petitioners have already moved a further application to send particular documents for an appropriate opinion on the issue involved, the reasons declining to allow such application under the above circumstance appears to be erroneous. For the orders requiring necessary examination of the handwriting as well as signature of the party concerned, this Court finds, in absence of such opinion, there may not be effective adjudication of the dispute involved in the suit. 9. Considering the citations cited by Sri Bhuyan, learned counsel for the opposite party and for the difference in the fact situation therein, this Court finds, the citations cited by Sri Bhuyan, have no application to the case at hand. 10. Under the circumstance and as this Court is of the opinion that there may not be an effective adjudication of the suit in absence of a proper report from the C.I.D., C.B., H.W.B, Rasulgarh and for the existence of the order of the trial Court necessitating opinion from the handwriting expert, further being confirmed by this Court in disposal of a civil miscellaneous petition, this Court observes, the impugned order is not sustainable in the eye of law. Thus, while setting aside the impugned order under Annexure-7, this Court allows the application at the instance of the petitioners for resending proper materials for expert opinion. At the same time, considering the effect of order dated 4.9.2015 this Court also directs the trial Court to send the relevant materials after asking the petitioners to file a memo indicating the documents required to be send for the purpose. While sending such documents, the trial Court will also collect specimen of recent signature and handwriting of the P.W. 1 alongwith other documents available on record and send all such documents to the C.I.D., C.B., H.W.B, Rasulgarh through Special Messenger at the cost of the petitioners. Such examination will be made within four weeks from the date of communication of this order. The suit shall also be disposed of within a period of three months from the date of receipt of such report. 11. The civil miscellaneous petition succeeds. Such examination will be made within four weeks from the date of communication of this order. The suit shall also be disposed of within a period of three months from the date of receipt of such report. 11. The civil miscellaneous petition succeeds. Under the circumstances, there is no order as to cost.