Shivaji Vishnu Kshirsagar & Ors vs Sayaji Vitthal Kshirsagar & Anr
2011 Latest Caselaw 32 Bom

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                      IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                            
                                  CIVIL APPELLATE JURISDICTION
                                 WRIT PETITION NO.9919 of 2010




                                                                    
          Shivaji Vishnu Kshirsagar & Ors                                      ..  Petitioners
           




                                                                   
                Versus

          Sayaji Vitthal Kshirsagar & Anr.                                     ..  Respondents




                                                     
          Mr. P. B.Gujar for the Petitioners
          Mr. Umesh Mankapure for Respondent No.1 
                                    
                                               CORAM :   R.M.SAVANT, J.

                                                 DATE     :   9th NOVEMBER,  2011

          ORAL JUDGMENT:
                


          1      Rule,   by   consent   of   the   parties   made   returnable   forthwith   and 
             



          heard.

          2      The Writ jurisdiction under Article 226 of the Constitution of India 

is invoked against the order dated 21-9-2010 passed by the Learned

District Judge Satara, by which order, the application filed by the

Respondents herein under Order 26 Rule 10A read with Section 151 of

the Civil Procedure Code, was allowed.

3 Shorn of unnecessary details, a few facts which are necessary to be

cited for the adjudication of the above Petition can be stated thus:

The Respondent No.1 is the original Plaintiff and the Petitioners

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herein are the original Defendants. The Respondent No.1 filed Regular

Civil Suit No.134 of 1990 for partition and possession. The subject matter

of the said suit are 10 agricultural lands and two houses at Village

Dhamner, Taluka Koregaon, District Satara. It is the case of the

Respondent No.1 that the said suit properties are ancestral properties of

the joint family and the same was with the common ancestor one Vishnu.

The Petitioners herein i.e. the Defendants to the said suit filed their

written statement and it was their contention that the Respondent No.1

has no claim to the properties in question as the Respondent No.1 is

enjoying the properties of his adopted family with his father and is not

concerned with the family of the Petitioners or suit properties. It was the

case of the Petitioners that except the land Gat No.573 rest of the lands

are self acquired properties of Vishnu who was working at Mumbai since

the age of 20. It was further their case that the suit properties have been

bequeathed to them by the said Vishnu by a Will Deed and that they are in

possession of the said properties pursuant to the Will by virtue of which

they have become owners. It appears that the Plaintiffs rested on the issue

as regards genuineness of the Will executed by Vishnu in favour of the

Defendants i.e. the Petitioners herein and in furtherance thereof, the

Respondent No.1 filed an application for appointment of a Court

Commissioner in the nature of hand writing expert to opine about the

signatures of the said Vishnu on the Will Deed as well as some other

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documents. The said application filed by the Respondent No.1 came to be

rejected by the Trial Court by order dated 1-3-2000. It is required to be

noted that the said order was not challenged further by the Respondent

No.1 at the relevant time. The said Regular Civil Suit No.134 of 1990

came to be dismissed by the Trial Court i.e. the Learned Civil Judge Junior

Division, Koregaon by Judgment and Order dated 4-4-2000. The fact that

the application of the Respondent No.1 Exhibit 124 calling for report of

the hand writing expert was referred to by the Trial Court in its Judgment.

Aggrieved by the said Judgment and Order dated 4-4-2000, the

Respondent No.1 filed an Appeal being Regular Civil Appeal No.172 of

2000 in the District Court at Satara. In the said Appeal, the Respondent

No.1 again filed an application for referring the documents in question

being Exhibit 122, 53, 56 and 50/2 to the hand writing expert. The said

application Exhibit 33 filed by the Respondent No.1 came to be allowed

by the First Appellate Court and the documents in question were referred

to the State Examiner of documents CID, Maharashtra State, Pune.

Pursuant to the said Order State Examiner submitted his report dated

25-4-2008. In the context of the controversy of the present petition, it

would be relevant to note that the said hand writing expert opined that it

was not possible to express a definite opinion as regards the identity or

otherwise of the red-enclosed signature at Exhibit Q-1 with signatures at

Exhibit N-1 to N-6 for want of contemporary natural signatures for the

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purpose of scientific examination. The matter thereafter rested there.

5 It appears that the Respondent No.1 again filed an application

Exhibit 53 after a lapse of two years on 26-4-2010, again seeking that the

report of a private hand writing expert be obtained, as regards the

signatures of the said Vishnu. The said application Exhibit 53 came to be

allowed by the First Appellate Court by the impugned order dated

21-9-2010. The gist of the reasoning of the First Appellate Court for

allowing the said application was that the Will is crucial to the merits of

the case and no prejudice could be cause to the other side i.e. the

Petitioners herein, if the disputed signatures on the alleged Will and the

admitted signatures of the Vishnu are sent to another hand writing expert

to give an opinion as regards the signatures of the said Vishnu. As

indicated above, it is the said order dated 21-9-2010 which is impugned in

the present Petition.

6 The principal contention of the Learned Counsel for the Petitioners

is that the second application filed by the Respondent No.1 in the First

Appellate Court in the light of the rejection of the application by the Trial

Court and the opinion given by the State Examiner of Document, was not

maintainable. The Learned Counsel would contend that the Application

was not maintainable also on the application of principles of res judicata

or principles analogous thereto. The Learned Counsel would further

submit that the application filed invoking Order 26 Rule 10A read

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with Section 151 of Code was misconceived as in the Appeal Court an

application under Order 41 Rule 27 could only be filed for leading

additional evidence.

Per contra it is submitted by the Learned Counsel for the

Respondent No.1 that since the Will Deed is a crucial document and since

it is the case of the Plaintiffs that the said document is bogus and that the

signatures are forged, it is necessary for the Court to arrive at a decision.

The second application for appointment of a Court commissioner was

therefore, maintainable. The Learned Counsel would contend that no

prejudice is likely to be caused to the Petitioners as the Petitioners would

be entitled to take appropriate steps including the cross-examination if

need be, contingent upon the report that would be submitted by the Court

Commissioner.

7 Having heard the Learned Counsel for the parties, I have given my

anxious consideration to the rival contentions. At the outset, it is required

to be noted that it is undisputed position that the application filed by the

Respondent No.1 in the Trial Court Exhibit 124 was rejected by the Trial

Court by order dated 1-3-2000. It is significant to note that though it is

the case of the Respondent No.1 that the said Will Deed is crucial to the

adjudication of the lease between the parties and though it was the case

of the Respondent No.1 that the said Will Deed is bogus and the

signatures are forged. The Respondent No.1 did not carry the matter

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further and let the matter rest after the said order dated 1-3-2000. The

suit in question filed by the Respondent No.1 was thereafter dismissed by

the Judgment and Order dated 4-4-2000. It is further required to be noted

that in the Appeal filed by the Respondent No.1 against the said Judgment

and Decree dated 4-4-2000, he again filed an application Exhibit-33 for

referring the matter to the Government hand writing expert. The said

application came to be allowed by order dated 10-8-2006, pursuant to

which, the matter was referred to the State Examiner of documents. The

State Examiner of documents by his report dated 25-4-2008 has opined

that it is not possible to express a definite opinion as regards the identity

or otherwise of the red-enclosed signatures at Exhibit-Q-1 with signatures

at Exhibits N-1 to N-6 for want of contemporary natural signatures for the

purpose of scientific examination. It is pertinent to note that though the

said order was passed on 25-4-2008, the Petitioner allowed the matter to

rest there and thereafter after a period of about two years, the Petitioner

filed Exhibit-53 for referring the matter to a Private Hand Writing Expert.

In the light of the opinion expressed by the State Examiner of documents

who is a hand writing expert in so far as, the State Government is

concerned, in my view, the third application Exhibit 53 filed by the

Respondent No.1 was not maintainable in the aforesaid conspectus of the

facts there is also merit in the submission of the Learned Counsel for the

Petitioners that the same is hit by the principles of resjudicata or

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principles analogus thereto. The reliance is placed by the learned Counsel

for the Petitioner on the Judgment reported in AIR 1960 SC 941 in the

matter of Satyadhyan Ghosal & Ors. Vs. Smt. Deorjin Debi & Anr. The

Apex Court in the said Judgment has held that the principles of res

judicata applies also as between two stages in the same litigation to this

extent that a Court, whether the trial court or a higher court having at an

earlier stage decided a matter in one way will not allow the parties to re-

agitate the matter against at a subsequent stage of the same proceedings.

In the instant case, as indicated above, the application filed by the

Respondent No.1 in the First Appellate Court was allowed and the State

Examiner of documents has given his opinion vide his report dated

25-4-2008. The said report ought to have been given due credence as the

State Examiner of documents has expressed the opinion that it is not

possible to express a definite opinion as regards the identity or otherwise

of the red-enclosed signatures at Exhibit-Q-1 with signatures at Exhibits

N-1 to N-6 for want of contemporary natural signatures for the purpose of

scientific examination. It is required to be noted that it is not a case where

the Respondent No.1 has led his hand on some contemporaneous

documents wherein the signatures of the said Vishnu appears, but the

Respondent No.1 has referred to the self same documents for comparison

of the signatures of the Vishnu. In my view, therefore, the First Appellate

Court has erred in allowing the application Exhibit-53 filed by the

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Respondent No.1 for appointment of Private Hand Writing Expert in the

light of the report submitted by the State Examiner of documents. The

First Appellate Court would be obliged to decide the Appeal filed by the

Respondent No.1 on the basis of the material which is already on record.

It is well settled that there has to be a finality in respect of the issue which

is a subject matter of trial and the same cannot be allowed to be kept

open indefinitely. In that view of the order, the impugned order dated

21-9-2010 passed on Exhibit-53 by the Learned District Judge Satara, is

required to be quashed and set aside and is accordingly quashed and set

aside.

7 Rule is accordingly made absolute in terms of prayer clause (b) with

parties to bear their respective costs.

(R.M.SAVANT, J.)