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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
WRIT PETITION NO.8066 OF 2011
Srikant Balwant Nalawade .. Petitioner
vs.
Bajarang Yashwant Nimbalkar & ors .. Respondents
Appearances:
Mr.Vijay Killedar for Petitioner Mr.P.M.Arjunwadkr for Respondent Nos.1 to 8 and 9-A CORAM : R.Y.GANOO, J DATED : 19.10.2013 ORAL JUDGMENT
1. Rule.
2. Learned Advocate Mr.P.M.Arjunwadkar waives service on behalf of Respondent nos. 1 to 8 and 9A. Respondent No.10 is already deleted in trial. Learned Advocate for the Petitioner Mr.Vijay Killedar upon instructions prays for withdrawal of Regular Civil Suit No.92 of 2007 presently pending on the file of the learned Civil Judge, Senior Division, ::: Downloaded on - 27/11/2013 20:27:55 ::: RNG 2 wp8066.11 Jaisingpur in respect of Defendant nos.11A to Defendant No.25 as according to him these Defendants have executed a sale deed dated 26.8.2013 and 23.9.2013 so as to dispose of their share in respect of the property namely revision survey no.5 being the suit property. The Petitioner to carry out the job of deletion of Defendant Nos.11A to 25 on or before 18.11.2013 in the trial Court.
3. On account of deletion of the original Defendant Nos.11A to 25 who are equally the Respondents in this Court, the Respondent nos. 1 to 8 and 9A in this Petition turn out to be the contesting Respondents who waives service of notice. In view of this, by consent of the learned Advocate on both sides this Petition is taken up for hearing.
4. The Petitioner filed the aforesaid Regular Civil Suit No.92 of 2007 against the contesting Respondents herein and other Respondents who have since been deleted for specific performance of the Agreement dated 20.10.1982 in respect of land revision survey no.5. The original Defendant Nos.1 to 6, 10, 11A, 11B,14,15,18,19,22,23 and 24 filed a common Written statement. The Defendant Nos.2A and 2B had filed a separate written ::: Downloaded on - 27/11/2013 20:27:55 ::: RNG 3 wp8066.11 statement. Since the suit is being withdrawn as indicated earlier, the Writ Petition filed by Defendant nos.1 to 6 along with certain other Defendants as mentioned earlier was required to be perused in this Petition. In the said Written statement, the Defendant nos. 1 to 6 disputed the signatures appearing on the document dated 20.10.1982 and contended that they are bogus signatures and it was also contended that some signatures on plain paper were issued and that plain paper was handed over to the Plaintiff. A plain reading of the Written statement and particularly para 9 filed as Defendant nos. 1 to 6 i.e. present Respondent nos. to 1 to 6 clearly indicates that they had disputed the execution of the document by contending that the signatures appearing on the said document dated 20.10.1982 are forged.
5. On account of this stand, the Petitioner thought it fit to make an application to the trial Court i.e. the Application below Exhibit 48 and the Petitioner prayed that on account of the stand taken by the present Respondent nos. 1 to 6, the document dated 20.10.1982 being the disputed document and other documents which could be termed as admitted documents be sent to the Hand Writing Expert for his opinion as to its ::: Downloaded on - 27/11/2013 20:27:55 ::: RNG 4 wp8066.11 genuineness of the signatures of Respondent nos.1 to 6 or otherwise. This Application was decided by the learned Civil Judge, Senior Division, Jaisingpur on 10.8.2011. The learned trial Judge on consideration of the Written statement came to the conclusion that on one hand the Respondent nos. 1 to 6 have admitted the signatures and on the other hand they are disputing it and hence there is no need to send the document to the Hand Writing Expert as the Respondent nos. 1 to 6 are not sure about their signatures.
6. I have considered the submissions advanced on both sides.
7. According to Mr.Killedar learned Advocate for the Petitioner, as Respondent Nos. 1 to 6 have disputed the signatures appearing on the document dated 20.10.1982 in order to ascertain as to whether the said signatures are genuine or otherwise, it is necessary to send the said document dated 20.10.1982 being disputed document along with other documents as may be referred as admitted documents for opinion of the Hand Writing Expert.
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8. Learned Advocate Mr. Killedar appearing on behalf of the Petitioner submitted that opinion of the Hand Writing Expert is necessary in order to ascertain the truth in the matter.
9. Learned Advocate Mr.P.M.Arjunwadkar appearing on behalf of Respondent Nos. 1 to 6 submitted that in view of provisions of section 71 of the Indian Evidence Act, there is no need to send the document to the Handwriting Expert as according to him the said document can be proved in accordance by any other method and that the Application filed by the Petitioner was misconceived and has been rightly rejected by the learned trial Judge.
10. The Learned Advocate relied on the Judgment in the case of JANKI NARAYAN BHOIR vs NARAYAN NAMDEO KADAM reported in 2003 (2) ALL MR 689 (SC). According to the learned Advocate the bond writer who has sold the document can also be examined and if the said bond writer is dead, his heirs can be examined to prove the scribed document on blank paper. The learned Advocate therefore, submitted that this Petition should be dismissed.
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11. A perusal of the impugned order dated 10.8.2011 clearly indicates that the learned Judge has failed to appreciate text of the Written statement and in particular para 7 in its proper perspective. The learned Judge holds that the Respondent nos. 1 to 6 at one stage have admitted the disputed document whereas comes to a conclusion that the said signatures are denied. These observations of the learned trial Judge are patently incorrect.
A close perusal of the Written statement will indicate that the Respondent nos. 1 to 6 have disputed the signatures appearing on the document dated 20.10.1982 which pertains to their names. The Respondent nos.1 to 6 have disowned their signatures and have taken a positive stand that the said signatures are forged. By way of alternate defence, the Respondent nos. 1 to 6 have stated that on some blank papers signatures were tendered and the Petitioner has used those blank sheets for the purpose of converting the same in the document dated 20.10.1982.
12. In my view, this statement put up in the written statement does not mean that the Respondent nos.1 to 6 have admitted their signatures as signatures having been tendered on the document dated 20.10.1982. In a way the Respondent nos. 1 to 6 are trying to suggest that said document is a ::: Downloaded on - 27/11/2013 20:27:55 ::: RNG 7 wp8066.11 fabricated document.
13. The desire of the Petitioner that on the document dated 20.10.1982 the admitted signatures be sent to the Hand Writing Expert is just and proper to bring the truth on record. The stand taken by the Advocate for the Respondent nos. 1 to 6 that the said document can be proved by any other method cannot be accepted. This is so because the Respondent nos. 1 to 6 are disputing their signatures.
14. Arguments advanced by the learned Advocate Mr.P.M.Arjunwadkar for the Respondent nos. 1 to 6 based on the provisions of section 71 of the Indian Evidence Act is required to be rejected as section 71 of the Indian Evidence Act specifically deals with a situation whether the attesting witness denies the execution of the document or that he is unable to recollect the execution of the said document.
15. In the present case, the Court is required to see whether the signatures appearing on the document dated 20.10.1982 as against the ::: Downloaded on - 27/11/2013 20:27:55 ::: RNG 8 wp8066.11 names of Respondent nos. 1 to 6 are genuine signatures or forged signatures. To that extent the argument advanced by learned Advocate Mr.Arjunwadkar has to be rejected. According to the Petitioner, the Respondent nos 1 to 6 are the executants of the said documents.
16. In view of the aforesaid observations, reliance placed by the learned Advocate Mr.Arjunwadkar on the Judgment in the case of JANKI NARAYAN BHOIR supra cannot be accepted. The said Judgment would not be applicable to the facts of this case.
17. For the reasons mentioned aforesaid, I am inclined to observe that the impugned order is required to be set aside and Application below Exhibit 90 is required to be granted.
18. For the reasons aforementioned, following order would dispose of this Petition:
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ORDER
1. Order dated 10.8.2011 passed below Exhibit 90 by the learned Civil Judge Senior Division, Jaisingpur District Kolhapur in Regular Civil Suit No. 92 of 2007 is set aside. Application below Exhibit 90 is granted.
2. The learned Civil Judge,Senior Division, Jaisingpur shall arrange to send the documents referred to in Application below Exhibit 90 to the Government Hand Writing Expert as per normal procedure.
19. In the facts and circumstances of the case, there shall be no order as to costs.
(R.Y.Ganoo,J) ::: Downloaded on - 27/11/2013 20:27:55 :::