Bombay High Court
Anandabai Gopal Shaha & Others vs Deelip Lakhichand Bhiwsara on 20 July, 2017
Bench: R.V. Ghuge
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2209 OF 1996
1 Smt. Anandabalabai Gopal Shah,
Age about 45 years, occu:household work
Residing at House No.1270/1, Agra Road
Dhule
2 Smt. Gitabai Pravin Shah
Age: 62 years, occu: Household
Residing at House No.1270/1
Agra Road, Dhule Petitioners
Versus
Dilip Lakhichand Bivasara
Age: 35 years, occupation - business,
residing at Galli No.4, Dhule Respondent
Mr. M.M. Jadhav h/f Mr. S.P. Shah advocate for Respondent
_______________
CORAM : RAVINDRA V. GHUGE, J
(Date : 20th July, 2017.)
ORAL JUDGMENT
1 Rule. Rule made returnable forth with and heard finally with
the consent of the parties.
2 The petitioner is aggrieved by the impugned order dated
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12.10.1994, by which Application Exhibit 65 filed by the plaintiff -
petitioner seeking reference to the handwriting expert, has been
rejected.
3 None appears for the petitioners. Even when this matter
was taken up for final hearing earlier on 1.9.2016, none
appeared for the petitioners. Respondent had sought an
adjournment then and today it is submitted that the file is
missing.
4 Instead of dismissing the matter in default, I deem it proper
to decide it on its own merits.
5 The petitioners had preferred Special Civil Suit No.112/95,
seeking specific performance of a contract, on the basis of an
agreement of sale dated 16.8.1989. A transaction is said to have
taken place to the extent of payment of Rs.50,000/- by the
plaintiff as earnest money out of the total consideration of
Rs.4,00,000/- for purchasing the property at issue. An
agreement to sell is said to have arrived at between the parties.
The defendants have denied the transaction and have pleaded,
in the alternative, in the written statement that, as the plaintiff
was never ready and willing to perform his part of the contract,
the suit deserves to be dismissed.
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6 There is no dispute that the Agreement to sell dated
16.8.1989 is the nucleus of the matter. The plaintiff stepped into
the witness box and the evidence was recorded at Exhbit 36. The
plaintiff has examined the writer of the document Mr. Sanjay
Joshi at Exhibit 49 and Mr. Sohanlal Chajed at Exhibit 55. A
neighbour Mr. Arun Bhavsar was also examined. The plaintiff as
well as the witnesses have testified the agreement to sell and
the signatures on the documents. They specifically stated that
the parties to the agreement have signed in their presence.
7 After recording of the evidence, the defendant Nos.1 and 2
have preferred Application Exhibit 65 on 17.9.1994 praying that
the disputed document be referred to the handwriting expert for
an expert opinion. The same has been rejected by the Trial Court
by the impugned order.
8 There can be no dispute that a disputed document can be
proved by examining the writer of the document, by identifying
the contents of the documents and the signatures on the said
documents. Those persons who are acquainted with the
signature of any person can identify the signature on a document
and that is held to be an admissible piece of evidence in the light
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of section 73 of the Indian Evidence Act
9 In the instant case, the handwriting and the signatures
were proved by examining the writer and by examining the
witnesses, who have also signed on the document. In these
circumstances, the trial Court has concluded that there is no
need to seek an opinion of a handwriting expert under section 45
of the Evidence Act.
10 I do not think that merely because a different view is
possible that the impugned order should be set aside. The
Honourable Apex Court in the matter of Syed Yakoob versus
K.S.Radhakrishnan & others (AIR 1964 SC 477) and Surya
Dev Rai versus Ram Chander Rai & others (2003 (6) SCC
675) has concluded that in the writ/supervisory jurisdiction of
this Court, the impugned order need not be interfered with
unless, it appears to be perverse, erroneous and likely to cause
gross injustice to any litigating side.
11 In the light of above, this petition, being devoid of merit, is
therefore, dismissed.
12 This Court by order dated 23.1.1995 has stayed Special
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Civil Suit No.112/92. As such, in the event the said Suit is still not
disposed of, the Trial Court shall proceed to decide the said Suit
as expeditiously as possible and preferably on or before the 28 th
day of February, 2018. The litigating sides shall refrain from
seeking adjournment on unreasonable and trivial grounds.
13 Rule is discharged.
(RAVINDRA V. GHUGE , J)
vbd
