Nurul Islam vs Samsul Haque And 3 Ors
2021 Latest Caselaw 2691 Gua

                                                                      Page No.# 1/4

GAHC010009412021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP(IO)/4/2021

            NURUL ISLAM
            S/O. LT. SABED ALI, VILL. DEOKURA, MOUZA RUPASI, P.O. KALGACHIA-
            781319, DIST. BARPETA, ASSAM.



            VERSUS

            SAMSUL HAQUE AND 3 ORS.
            S/O. LT. RUSTOM ALI, VILL. DEOKURA, MOUZA RUPASI, P.O. KALGACHIA-
            781319, DIST. BARPETA, ASSAM.

            2:STATE OF ASSAM

             REP. BY THE DY. COMMISSIONER
             BARPETA DISTRICT
             BARPETA
             ASSAM.

            3:THE SECRETARY
            TO THE GOVT. OF ASSAM
             HEALTH AND FAMILY WELFARE DEPTT.
             DISPUR
             GUWAHATI-781006
            ASSAM.

            4:THE DY. COMMISSIONER

             BARPETA DISTRICT
             P.O. BARPETA
             ASSAM

Advocate for the Petitioner   : MR. N DHAR
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Advocate for the Respondent : GA, ASSAM




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                          ORDER

Date : 03-11-2021

Heard Mr. N Dhar, learned counsel for the petitioner as well as Mr. D Mozumder, learned senior counsel for the respondent No.1 assisted by Mr. S Biswas. Also heard Mr. PS Deka, learned Additional Senior Government appearing on behalf of the proforma respondent Nos.2, 3 and 4.

The instant application under Article 227 of the Constitution of India is filed challenging the order dated 21.12.2020, whereby, the First Appellate Court in exercise of its jurisdiction under Order 41 Rule 27 (b) ordered for sending the signature of petitioner, Nurul Islam appearing in exhibit-4 to the Director, FSL Kahilipara to examine his signature with the specimen signature of the petitioner to be taken by the Court.

I have heard the learned counsel for the petitioner as well as the learned counsel for the respondent.

The facts relevant for the purpose of adjudication of the instant proceeding is that the respondent instituted Title Suit No.31/2014 in the Court of the learned Munsiff No.1, Barpeta for declaration of his right, title and interest over the suit land described in Schedule-B to the plaint as well as for recovery of possession based on a sale deed No.823/1985 dated 24.04.1985. The petitioner who is the defendant Page No.# 3/4

No.4 in the suit submitted his written statement and in his written statement he has alleged that the signature appearing in deed No.823/1985 dated 24.04.1985 is a forged document and the signature appearing in the sale deed is not put by the petitioner/defendant No.4, for which the suit ought to be dismissed.

In the course of the trial, the plaintiff witness, namely, Ismail Hussain (Pw-7) had in his cross-examination admitted that the defendant No.4 did not put his signature in his presence. The Court of the Munsiff vide the judgment and decree dated 17.12.2018 passed in Title Suit No.31/2014 dismissed the suit of the plaintiff/respondent herein. Being aggrieved, the respondent/plaintiff preferred an appeal before the Court of the Civil Judge, Barpeta which have been registered and numbered as Title Appeal No.2/2019.

During the course of the hearing of the said appeal, the Appellate Court formed an opinion that the examination of the signature of the defendant No.4 is required for the purpose of pronouncement of the judgment and as such, vide the impugned order dated 21.12.2020 directed that the signature of the defendant No.4 appearing in the registered sale deed No.823/1985 exhibited as exhbit-4 be sent to the Director FSL, Kahilipara and the defendant No.4 who is the petitioner herein was also directed to appear before the Court and submit the specimen signatures for sending the same to the FSL Kahilipara.

From a perusal of the impugned order it reveals that the Appellate Court had exercised jurisdiction under Order 41 Rule 27 (b) read with Order 26 Rule 9 and 10 and Section 73 of the Evidence Act, Page No.# 4/4

1872 for the purpose of ascertaining as to whether the signature appearing of the defendant No.4 in exhibit-4 is that of the signature of defendant No.4.

Upon perusal of the said impugned order, I am of the opinion that no interference is called for to the said order, more-so, in a proceedings under Article 227 of the Constitution of India.

Accordingly, the instant petition stands dismissed and the interim order dated 19.02.2021 staying the operation of the order dated 21.12.2020 is hereby vacated.

The petitioner shall comply with the directions as given in the order impugned i.e, the order 21.12.2020 passed in TA No.2/2019.

It is, however, clarified that taking into account that the exercise of jurisdiction by the appellate Court is done under Order 26 Rule 9 and 10 of the Code of Civil Procedure read with Order 41 Rule 27 (b), the petitioner shall be entitled to all such remedies available under law.

JUDGE

Comparing Assistant