Bombay High Court
Ashwin Son Of Wardhaman Golechha vs Santoshkumar Son Of Swamidas ... on 14 June, 2016
Bench: Z.A. Haq
Judgment 1 wp3243.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3243 OF 2016
Ashwin son of Wardhaman Golechha,
aged about 50 years, Partner of M/s.
Oswal Builders and Developers,
Resident of Flat No.501, situate on the
top floor of the building known as
Mangalam Apartment, Plot No.905,
Khare Town, Dharampeth, Nagpur-10.
(Original Defendant)
.... PETITIONER.
// VERSUS //
1. Santoshkumar son of Swamidas Agrawal,
aged about 74 years, Retired.
2. Smt. Veena wife of Santoshkumar Agrawal,
aged about 68 years, Occupation : Housewife,
Both residents of Plot No.508,
Ramdaspeth, Nagpur - 440 010.
(Original Plaintiffs)
.... RESPONDENTS
.
______________________________________________________________
Shri Yash Maheshwari, Advocate for Petitioner.
Shri R.M.Sharma, Advocate for Respondents.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JUNE 14, 2016.
Judgment 2 wp3243.16.odt
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
3.
The petitioner/ defendant has challenged the order passed
by the trial Court rejecting the application (Exh.128) filed by the
defendant praying that the documents below Exh.102 and 103 be
referred to handwriting expert for his opinion along with signatures of
the plaintiff over the plaint and vakalatnama. The learned advocate
has submitted that the handwriting expert be granted access to the
specimen signatures of the plaintiff available on the record of the
Court.
4. It is undisputed that the Hon'ble Supreme Court has
directed the trial Court to dispose the civil suit till 31st July, 2016. The
witness of the plaintiff was cross-examined on behalf of the defendant
on 3rd February, 2016 and the plaintiff closed his side. Two witnesses
of the defendant are examined on 10th February, 2016. The defendant
Judgment 3 wp3243.16.odt
filed application praying for issuance of summons to bank official and
the defendant was required to file an application on 7th April, 2016
praying for issuance of warrant to bank official so that he can be
examined. The defendant filed application (Exh.128) on 7th April,
2016. The learned trial Judge observed that the defendant has not
given any explanation for not making the request as made in
application (Exh.128) earlier. The learned trial Judge has observed
that the conduct of the defendant shows that he is protracting the
matter and is delaying the disposal of the civil suit inspite of the fact
that the civil suit is required to be disposed till 31st July, 2016.
5. The learned trial Judge has rejected the application
(Exh.128) recording that the witness of the plaintiff has denied the
signature of the plaintiff on the concerned document and the legal
consequences would follow while appreciating the evidence of the
parties. The learned advocate for the petitioner has submitted that the
learned trial Judge has not considered the merits of the prayer of the
petitioner for referring the documents to the handwriting expert for his
opinion and the application is rejected only because the learned trial
Judge carried impression that the petitioner is trying to delay the
disposal of the civil suit. It is argued that the impression carried by the
Judgment 4 wp3243.16.odt
learned trial Judge is not proper and the opinion of the handwriting
expert is necessary to decide the challenges raised by the petitioner.
Shri Maheshwari, learned advocate for the petitioner submitted that to
dispel wrong impression carried by the respondents also, the petitioner
has filed an affidavit sworn on 13th June, 2016 stating that Shri Ulhas
Athley, Handwriting Expert has shown his willingness to take
photographs of the concerned documents on 16th June, 2016 and to
submit report by 24th June, 2016. The petitioner has given an
unequivocal undertaking that if the petitioner fails to secure the report
of Handwriting Expert on record, till 24th June, 2016, the petitioner
will give up the challenge raised in the petition. It is prayed that the
application (Exh.128) be allowed by setting aside the impugned order.
6. The learned advocate for the respondents has opposed the
prayer of the petitioner.
7. However, after considering the submissions made by the
learned advocates for the respective parties and considering the
affidavit sworn by the petitioner on 13th June, 2016, in my view,
interests of justice would be sub-served if the application (Exh.128) is
allowed on certain conditions.
Judgment 5 wp3243.16.odt
8. Hence, the following order :
i) The impugned order is set aside.
ii) The application (Exh.128) filed by the petitioner before
the trial Court is allowed.
iii) The trial Court is directed to permit Shri Ulhas Athley,
Handwriting Expert to take photographs of the concerned
documents till 18th June, 2016.
iv) If the petitioner secures the report of the Handwriting
Expert till 30th June, 2016 the report be taken on record.
If the petitioner fails to secure the report of the
Handwriting Expert till 30th June, 2016 the application
(Exh.128) shall stand rejected.
v) The trial Court shall take up the matter, if required, on day
to day basis and dispose the matter till 31st July, 2016.
The petition is allowed in the above terms. In the
circumstances, the parties to bear their own costs.
Authenticated copy be provided to the parties. The parties
to act on the authenticated copy.
JUDGE
RRaut..
