Srikant Balwant Nalawade vs Bajarang Yashwant Nimbalkar & Ors
2013 Latest Caselaw 60 Bom

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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,

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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

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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

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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

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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

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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)