Bapu Dhopndi Devkar vs Tukaram Sakharam Nagaonkar
2001 Latest Caselaw 496 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under article 227 takes exception to the order dated 20.6.1995 passed by the 4th Joint Civil Judge, Junior Division, Kolhapur below Ex.52 (Review Application) in Suit No. 794 of 1992. The petitioner also challenges the original order passed by the Trial Court dated 5.6.1995 in application below Ex. 48 filed by the petitioner praying that disputed documents be sent to the General Manager. Indian Security Press for expert opinion.

2. The petitioner has filed suit before the Court of Civil Judge, Senior Division. Kolhapur bearing RC Suit No. 794 of 1992 for relief of possession of the suit property. The petitioner's case in the said suit is that the plot in question has been allotted to the petitioner by the Government in the year 1986 and thereafter the petitioner constructed residential house in the suit property and inducted respondent as licensee. This suit is resisted by respondent by filing written statement. The stand taken by the respondent in the written statement is that, the respondent was occupying the house constructed by him as back as in the year 1977. In support of this plea the respondent has relied upon several documents enumerated in Ex.41. Petitioner, however, has taken objection to some of the documents mentioned in Ex.41 i.e. at Sr. Nos. 4 to 8. According to the petitioner the said documents are stated to have been executed in the year 1977-78, but the revenue stamp affixed on the said documents were of the year 1993-94; and, therefore, these documents were obviously fabricated to sub-serve the interest of the respondent. In the circumstances the petitioner by application Ex. 48 applied to the Trial Court for the following reliefs :

"(a) The documents at Sr. Nos. 41/4 to 8 may kindly be send to -The General Manager, Indian Security Press, Nasik Road. Nasik, Pin Code No. 422 101 and opinion in respect of

(A) Date or month and year of the printing of the Revenue stamps at Ex. 41 / 4 to 8.

(B) Date, month and year when the Revenue Stamps at Ex.41/4 to 8 were circulated for sale may kindly be called."

3. This application was resisted by the respondent. The Trial Court by order dated 5.6.1995 was pleased to reject the application mainly on the ground that the respondent (defendant) has to prove those documents at the time of giving evidence, therefore, it is not necessary to sent the said documents for expert's opinion. Aggrieved by this decision the petitioner preferred review application (Ex. 52) which has met with the same fate inasmuch as the same came to be dismissed by the Trial Court on 20.6.1995, for the Court has held that no ground for review was made out.

4. Learned counsel for the petitioner submits that the Trial Court has clearly failed to exercise jurisdiction vested in it. According to him, the question regarding life of the revenue stamp affixed on the disputed documents, which was the fulcrum of the petitioner's case while asserting that the documents were fabricated, could be opined only by scientific investigation on commission, and, therefore, it was imperative to sent the documents to the General Manager, Indian Security Press to obtain opinion on two aspects mentioned in the prayer clause of the application. Learned counsel for the petitioner further contends that the relief in the said application was essentially in terms of the purport of rule 10A of order 26 of the Code of Civil Procedure, therefore, the Court ought to have allowed the same. On the other hand learned counsel for the respondent contends that the application was filed by the petitioner only under order 26 Rule 10 read with Section 151 of Code of Civil Procedure and not under rule 10A as is sought to be contended for the first time before this Court. Learned counsel further submits that in any case the petitioner shall have opportunity to cross-examine the persons who have executed the disputed documents since the respondent was to examine the said persons as defendant's witness. Learned counsel further submits that review itself was not maintainable and therefore no interference was called for in the present matter.

5. Having considered the rival submissions I am of the view that the approach adopted by the Court below is wholly inappropriate. The argument advanced on behalf of the respondent that the application was one under order 26 Rule 10 and not under Rule 10A is merely stated to be rejected. No doubt the title of the application indicates that the same is filed under order 26 rule 10 read with section 151 of the Code of Civil Procedure, however, it will be wholly improper to go by the form of the application rather than the substance thereof. If we were to examine the application as a whole it would appear that the relief prayed for therein was essentially in terms of the provisions of Rule 10A and not Rule 10. Treating the subject application for the relief under rule 10A alone would meet the ends of justice. In the circumstances, the first objection raised on behalf of the respondent does not merit any interference and the same is devoid of merits.

6. Insofar as the second objection raised on behalf of the respondent that the petitioner would get opportunity to cross-examine the defendant's withnesses the same clearly overlooks that the purpose of sending the documents to the General Manager, Indian Security Press is not to find out the correctness of the contents of the said documents but only to assess the fact situation about the date or month and the year of the printing of revenue stamp and the period when they were circulated for sale. These matters can be opined only by the General Manager, Indian Security Press, being an expert on the said subject. In the circumstances, the petitioner had clearly satisfied the requirements of Rule 10A; and, therefore, I find no reason to decline the prayer made in the said application. Be that as it may, no doubt the petitioner would get an opportunity to cross-examine the defendant's witnesses however, that would be no substitute of obtaining expert's opinion on the issues that have been mentioned in the subject application.

7. Insofar as the third objection raised on behalf of the respondent that review application was not maintainable, this submission also overlooks the fact that the petitioner has not only challenged the order passed on review but also the main order passed below Ex. 48 by way of present writ petition. Taking any view of the matter, the reasons indicated by the Court below for rejecting the application cannot stand the test of judicial scrutiny.

8. In the circumstances, the impugned orders deserve to be set aside and instead the application filed by the petitioner Ex. 48 is allowed. The Trial Court shall take necessary steps to obtain the opinion of the General Manager as prayed for in the said application. This writ petition therefore succeed with no order as to costs. Rule made absolute in above terms, parties to act on copy of this order duly authenticated by the Personal Secretary/Sheristedar of this Court.