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2017 DIGILAW 825 (GAU)

Saurav Sarmah Rajguru v. Bipul Bhusan Borthakur

2017-06-21

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. T.J. Mahanta, the learned Senior Counsel assisted by Mrs. P. Bhattacharya and Mr. B. Bora, appearing for the petitioner and Mr. A.K. Purkayastha, the learned counsel appearing for the respondent. 2. By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 02.04.2015 passed by the learned Civil Judge, Jorhat in Money Suit No. 25/2015, thereby rejecting the prayer made in petition no. 523/15 dated 02.03.2015, to send cheque to a handwriting expert to ascertain whether the signature appearing as ‘Bipul Bhushan Borthakur’ in cheque No. 835528 was of the plaintiff or not. 3. With the consent of the learned counsels appearing for the parties, the matter was taken up for hearing at the ‘admission’ stage itself in view of the short point involved in the case. 4. The short argument advanced by the learned Senior counsel for the petitioner is that in the suit, the respondent/plaintiff claimed non-payment of money taken by the petitioner by way of a loan. The defence of the petitioner/defendant in the written statement was that the payment was duly made and reference was made to payment of a sum of Rs. 2,50,000/- (Rupees Two lakh fifty thousand only) by way of cheque. In due course, the respondent/ plaintiff had adduced his evidence and during his cross examination the cheque in reference was produced and exhibited by a Bank official and marked as Ext.C. It is submitted that the respondent/plaintiff had admitted all payments, except the payment made vide cheque in reference. 5. The learned Senior Counsel for the petitioner submits that as the respondent/plaintiff had denied his signature, which was exhibited as Ext.C(1), the petitioner/defendant had filed the said petition for forensic examination of the disputed signature. It is submitted that the initial onus to prove the payment was on the petitioner/defendant and only after he discharges his burden, the burden of proof shall shift on the respondent/plaintiff. It is also submitted that the disputed signature could be sent to the expert for his opinion as to handwriting at any stage of the suit as it would enable the learned Trial Court to arrive at a just and proper decision. It is also submitted that the disputed signature could be sent to the expert for his opinion as to handwriting at any stage of the suit as it would enable the learned Trial Court to arrive at a just and proper decision. It is also submitted that the delay in making such an application and/or delay that may be caused in the disposal of the suit cannot be a ground to deny the bona fide prayer by the petitioner/ defendant to obtain an opinion on the genuineness of the signature Ext.C(1) appearing on the body of the cheque (Ext.C). In support of his contentions, the learned Senior Counsel for the petitioner/defendant has relied on the decision of this court, rendered in the case of Pawan Kumar Sethia vs. Sakala Devi Thakur, (2015) 2 GLT 230. 6. The learned Counsel for the respondent has vehemently opposed this application. He has mainly urged two grounds, firstly, that the application made at a belated stage ought not to be encouraged as the evidence of the parties is already over and, as such, the opinion of the handwriting expert at such a belated stage may cause prejudice the respondent/plaintiff, and secondly, on the ground that if at this stage, when the case is ripe for final argument, the documents are send for forensic examination by expert, there would be further inordinate delay in the disposal of the suit. The learned counsel for the respondent/plaintiff, therefore, prays for dismissal of this revision application with cost. 7. In this case, there is a serious dispute between the parties on whether or not the petitioner/defendant paid a sum of Rs. 2,50,000/- to the respondent/plaintiff by way of cheque No. 835528 dated 29.04.2008, drawn on Federal Bank, Jorhat Branch, in the name of Bipul Bhushan Borthakur. Therefore, in the opinion of this Court, if it can be ascertained about the genuineness of the signature marked as Exhibit-C(1) through opinion of a handwriting expert, it would definitely assist the learned Trial Court to arrive at a just and fair decision. 8. In so far as the issue of delay in filing the application for sending the disputed signature to handwriting expert is concerned, there appears to be no delay. 8. In so far as the issue of delay in filing the application for sending the disputed signature to handwriting expert is concerned, there appears to be no delay. Only when the Exhibit-C(1) was introduced by DW-2 and the same was denied by the respondent/ plaintiff, only then without any delay, the petitioner/defendant had moved the learned court below for examination of disputed document by handwriting expert. Therefore, this Court does not find any infirmity in the impugned order in this ground. 9. In so far as the issue of delay that may be caused in the disposal of the suit, if the disputed document and/or disputed signature is sent for examination by expert, the said issue has been put to rest by this Court in the case of Pawan Kumar Sethia (supra). The relevant paragraphs 15 and 16 thereof is quoted below:- “15. According to me, the concerned exhibit can help the Court to decide on a relevant aspect of the case by weighing the evidence of the handwriting expert and therefore the Court’s non-consideration of the relevancy aspect of the Exbt.A(1) in my opinion, has resulted in a jurisdictional error. 16. Moreover to ascertain the correct facts, the Court can always invoke Section 151 of CPC at any stage of the proceeding and the factum of delay in disposal of the suit, could not have been made the basis for rejection of the defendants’ application.” 10. Thus, in view of the above, this Court also does not find that delay in disposal of the suit can come in the way of the court to take recourse of obtaining expert opinion, because the ultimate goal of the Court is to arrive at a truth and therefore, the same is for the ends of justice under the facts of this case in hand. 11. It is also seen that the learned court below has not touched upon the relevancy of such expert opinion on the evidence already on record, which is the law laid down in the case of Pawan Kumar Sethia (supra), which was the ground on which this Court had interfered with the order impugned therein. 12. 11. It is also seen that the learned court below has not touched upon the relevancy of such expert opinion on the evidence already on record, which is the law laid down in the case of Pawan Kumar Sethia (supra), which was the ground on which this Court had interfered with the order impugned therein. 12. For the foregoing discussions, the impugned order is not found to be sustainable and it is found to suffer from jurisdictional error as the said learned court did not consider the settled position of law as laid down by this Court in the case of Pawan Kumar Sethia (supra). Hence, the said order dated 02.04.2015, passed by the learned Civil Judge, Jorhat in Money Suit No. 25/2015 is set aside. The petition No. 523/15 dated 02.03.2015 to refer the Ext.C to handwriting expert for ascertaining whether the signature made in Ext. C(1) is that of the respondent/ plaintiff, namely, Bipul Bhushan Borthakur, or not, stands allowed. 13. The learned Civil Judge, Jorhat may pass consequential orders required for the same. It is also provided that the said learned court should ensure that such report is secured at the earliest so that undue delay can be avoided. 14. This application is allowed on the terms as indicated above. The parties are left to bear their own cost. 15. The parties are directed to appear before the Court of learned Civil Judge, Jorhat on 10.07.2017 and produce a certified copy of this order and seek further instructions from the said learned Court.