Bombay High Court
Late Girirao S/O Nagarao Kalbande ... vs Sher Mohammad S/O Sheikh Chand And ... on 14 June, 2022
Bench: Manish Pitale
1/7 913.wp2087.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2087 OF 2021
Late Girirao s/o Nagarao Kalbande, Thru. LRs
Vs.
Sher Mohammad s/o Sheikh Chand and anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's
Orders.
or directions and Registrar's orders.
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Mr. Deepak S. Khushalani, Advocate for petitioners.
Mr. K.J. Topale, Advocate for respondents.
CORAM : MANISH PITALE J.
DATE : 14.06.2022.
By this writ petition, the petitioners
have challenged order dated 08.04.2021 passed
by the Court of Civil Judge Junior Division,
Ashti, whereby an application at Exhibit 122
praying for calling for the report of Handwriting
expert in respect of signature of the original
plaintiff appearing on a document dated
23.01.1989, was rejected. The petitioners are the
original defendants.
2. The learned counsel appearing for the
petitioners submits that the Court below erred in
rejecting the application mainly on the ground
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that the Court was entitled to compare the
signatures and arriving at a proper conclusion. It
is submitted that in the facts and circumstances
of the present case, a report from the
Handwriting expert was necessary and it would
certainly assist the Court in arriving at a proper
conclusion as regards the crucial aspect of the
matter concerning the aforesaid document,
which was claimed to be a relinquishment deed.
3. The learned counsel for the
petitioners further submitted that when the
matter had been remanded to the Court below
specifically in the context of the said document, it
was all the more necessary to allow the said
application. The learned counsel placed reliance
on the judgments of the Hon'ble Supreme Court
in the cases of State (Delhi Administration)
Vs. Pali Ram, AIR 1979 SC 14 and Ajay
Kumar Parmar Vs. State of Rajasthan,
2012 ALL.M.R. (Cri.) 3792 SC.
4. On the other hand, learned counsel
appearing for the respondent submitted that the
whole endeavour was an exercise in futility
because a bare comparison of signature on the
said document with signatures available on the
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record of the Court would show that there is
marked difference. It is submitted that in these
circumstances, the Court below was justified in
rejecting the application. It was submitted that
sending the signatures for report of Handwriting
expert was unnecessary and it would further
delay the proceedings. Much emphasis was
placed on the fact that the suit was of the year
2007 and it was still languishing before the trial
Court, as a consequence of the appellate Court
remanding the proceedings.
5. This Court has considered the rival
contentions in the backdrop of the material
placed on record. A perusal of the impugned
order shows that the Court below has proceeded
more on the aspect of the power of the Court to
compare the signatures and hence, it has held
that once such power is recognized under the
provisions of law, the exercise of sending the
document for a report to the handwriting expert
is unnecessary.
6. In this backdrop, it would be
appropriate to refer to the judgments relied upon
by that the learned counsel appearing for the
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petitioners. In the case of State Vs. Paliram
(supra), the Hon'ble Supreme Court held thus :
"29. The matter can be viewed from another
angle, also. Although there is no legal bar to
the Judge using his own eyes to compare the
disputed writing with the admitted writing,
even without the aid of the evidence of any
handwriting expert, the Judge should, as a
matter of prudence and caution, hesitate to
base his finding with regard to the identity of
a handwriting which forms the sheet-anchor
of the prosecution case against a person
accused of an offence, solely on comparison
made by himself. It is therefore, not advisable
that a Judge should take upon himself the task
of comparing the admitted writing with the
disputed one to find out whether the two agree
with each other; and the prudent course is to
obtain the opinion and assistance of an
expert."
7. In the case of Ajay Kumar Parmar
Vs. State of Rajasthan (supra), the Hon'ble
Supreme Court in the context of opinion by
Handwriting expert, held as follows :
"23. The opinion of a handwriting expert is
fallible/liable to error like that of any other
witness, and yet, it cannot be brushed aside as
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useless. There is no legal bar to prevent the Court
from comparing signatures or handwriting, by
using its own eyes to compare the disputed
writing with the admitted writing and then from
applying its own observation to prove the said
handwritings to be the same or different, as the
case may be, but in doing so, the Court cannot
itself become an expert in this regard and must
refrain from playing the role of an expert, for the
simple reason that the opinion of the Court may
also not be conclusive. Therefore, when the Court
takes such a task upon itself, and findings are
recorded solely on the basis of comparison of
signatures or handwritings, the Court must keep
in mind the risk involved, as the opinion formed
by the Court may not be conclusive and is
susceptible to error, especially when the exercise
is conducted by one, not conversant with the
subject. The Court, therefore, as a matter of
prudence and caution should hesitate or be slow
to base its findings solely upon the comparison
made by it. However, where there is an opinion
whether of an expert, or of any witness, the Court
may then apply its own observation by
comparing the signatures, or handwritings for
providing a decisive weight or influence to its
decision."
8. It is obvious from the said position of
law clarified by the Hon'ble Supreme Court that
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it would be a matter of prudence and caution for
the Court to call for a report of a Handwriting
expert and then to proceed in matters where such
disputes arise. What is advised to be a prudent
course could not be ignored by the Court below,
solely on the ground that the Court itself under
Section 73 of the Indian Evidence Act, indeed has
the power to compare signatures and
handwriting.
9. The application at Exhibit 122 filed on
behalf of the petitioners is nothing but an
attempt to assist the Court to reach proper
findings of facts, particularly in the backdrop of
the statements given in cross-examination by the
plaintiff on 07.01.2021. The Court below failed to
appreciate the context in which the said
application was moved on behalf of the
petitioners.
10. In view of the above, it is found that
the impugned order is unsustainable.
Accordingly, the writ petition is allowed. The
impugned order is set aside and the application
at Exhibit 122 is allowed in terms of prayer made
therein.
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11. The Court below shall now proceed
accordingly.
12. Considering the fact that the suit
pertains to the year 2007, the Court below is
expected to proceed expeditiously and to dispose
of the suit, preferably within a period of one year
from today.
JUDGE
Signed By:PRITY S GABHANE
Reason: Prity
Location:
Signing Date:16.06.2022 18:25
