Gujarat High Court

Thakor Jinabhai Manjibhai vs Thakor Girdharbhai Manjibhai on 8 October, 2021

Bench: B.N. Karia

     C/SCA/6458/2020                                  JUDGMENT DATED: 08/10/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 6458 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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1     Whether Reporters of Local Papers may be allowed to see               NO
      the judgment ?
2     To be referred to the Reporter or not ?                              NO
3     Whether their Lordships wish to see the fair copy of the             NO
      judgment ?
4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any         NO
      order made thereunder ?

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                         THAKOR JINABHAI MANJIBHAI
                                   Versus
                       THAKOR GIRDHARBHAI MANJIBHAI
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Appearance:
MR SATYEN B RAWAL(1630) for the Petitioner(s) No. 1,2,3,4,5,6
NOTICE SERVED(4) for the Respondent(s) No. 1,2,3
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    CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                               Date : 08/10/2021

                               ORAL JUDGMENT

1. By preferring this petition, petitioners have requested to

quash and set aside the impugned order dated 07.12.2019 passed

by learned Principal Senior Civil Judge, Surendranagar in Special

Civil Suit No.68 of 2016 rejecting the application Exh.45.

2. Brief facts as relevant to this petition may be set out as under:

C/SCA/6458/2020 JUDGMENT DATED: 08/10/2021

Petitioners are the original plaintiffs, who filed Special Civil

Suit No.68 of 2016 before the Court of learned Principal Senior

Civil Judge, Surendranagar for declaration, injunction and partition

of the suit properties. It was the case of the plaintiffs before the

trial court that the suit property being agricultural land bearing

Survey No.139 admeasuring Acre 200 Gunthas at MulchandNi

Sim, at Wadhwan is liable to be partitioned amongst the plaintiffs

and defendants. It is the case of the defendants that the said

property was bequeathed to them by deceased Jerambhai

Manjibhai, who passed away on 14.04.1996 and before that a Will

dated 04.01.1996 being at Mark 15/1 was executed in favour of the

defendants, and therefore, it cannot be partitioned. As there was

apparent difference in the signature on the so called will and the

previous signatures of the deceased Jerambhai Manjibhai, and

therefore, examination of disputed signature by handwriting expert

was required. Application Exh.45 was submitted by the plaintiffs

seeking expert opinion under Section 45 of the Evidence Act.

According to the plaintiffs, the said will at Mark 15/1 is forged and

fabricated and the signature contained therein was not genuine

signature of Jerambhai Manjibhai. Learned Trial Court framed the

issues vide Exh.8 wherein Issue Nos.3 and 4 were pertaining to the

C/SCA/6458/2020 JUDGMENT DATED: 08/10/2021

will bogus and forged. However, learned advocate appearing for

the defendants made clear endorsement upon the said application

Exh.45 that he has also filed the reply/objection dated 21.11.2019

which is in favour of seeking opinion of expert and further stated

that if such procedure is done, defendants may not have to

undertake such an exercise of examination of the documents.

However, trial court rejected such application Exh.45 overlooking

the reply and endorsement made by the defendants.

3. Heard learned advocate for the petitioners.

4. No argument was advanced by the respondents, however,

they are served with the notice. Nobody appeared to contest this

petition for and on behalf of the respondents.

5. Learned advocate for the petitioners has submitted that in

spite of supporting endorsement and reply filed by the defendants

in connection with the prayer made by the plaintiffs in their

application Exh.45, learned Trial Judge has wrongly and illegally

passed the impugned order dated 07.12.2019 rejecting their

applications. It is further submitted that issues were also framed by

the learned Trial Court considering the dispute in the suit. That

there was no dispute raised by the defendants of contesting

application Exh.45 and prayer made therein. It is further submitted

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that findings of the trial court that the application Exh.45 was

premature and the matter is fixed at the stage of the arguments

was not correct, as the status of the suit was for recording evidence

only and not for arguments. That trial court failed to appreciate

that neither any prejudice and/or harm would be caused in

granting application Exh.45 that too when none of the party was

opposing the prayer. Considering the endorsement passed by the

defendants below application Exh.45, it can be said that joint

request for seeking expert evidence was sought for by the parties.

That in fact opinion of the hand writing expert in respect of

signatures under the will would enable the court to pronounce the

judgment based on best evidence and there was no reason to deny

when such a request was made jointly by both the parties. Hence, it

was requested by learned advocate appearing for the petitioners to

quash and set aside the order dated 07.12.2019 passed below

Exh.45 by learned Principal Senior Civil Judge, Surendranagar in

Special Civil Suit No.68 of 2016.

6. Having heard learned advocate for the petitioners and as no

arguments was advanced from the respondents/defendants, it

appears from the contents of the plaint that declaration, injunction

and partition of the suit property was sought by the plaintiffs in

C/SCA/6458/2020 JUDGMENT DATED: 08/10/2021

their Special Civil Suit No.68 of 2016. As per the objection raised

by the defendants, Jerambhai Manjibhai had executed a will dated

04.01.1996 purportedly in favour of the defendants No.2 whereby

the suit property was passed over in his favour. Jerambhai

Manjibhai had passed away on 14.04.1996 and defendant No.2 was

claiming to be exclusive legatee of the suit property on the basis of

so called will. According to the plaintiffs, the said will was forged

and fabricated and signature contained therein was not genuine

signature of Jerambhai Manjibhai, and therefore, in view of the

rival pleadings in the plaint and common written statement filed by

the defendants, trial court framed the issues vide Exh.8. Issues

Nos.3 and 4 were pertaining to the will being forged and bogus.

Issues Nos.3 and 4 were to be proved by the plaintiff. An

application Exh.45 was filed by the plaintiffs on 16.10.2019

praying for the opinion of the hand writing expert with regard to

the said will (Exh.15/1), which is a crux of the matter. On

21.11.2019, it appears that learned advocate for the defendant

made his endorsement upon the said application as well as also

filed reply/ objection dated 21.11.2019 supporting the prayer made

in the application Exh.45. It also appears that there was no

variance as both the parties wanted to prove their respective cases

C/SCA/6458/2020 JUDGMENT DATED: 08/10/2021

by handwriting expert. It also appears that learned Trial Judge has

ignored the endorsement made by learned advocate appearing

from the defendants below the application Exh.45 and reply filed

by them. Observation made by the trial court that application

Exh.45 is a premature and matter is at the stage of the argument

appears to be factually incorrect. In fact there was no prejudice

and/or harm likely to be caused to the defendants in granting an

application Exh.45 when none of the party has opposed the prayer

made by the plaintiffs. If Exh.45 would be granted opinion of the

handwriting expert will come on record and would certainly enable

the court to pronounce the judgment based on best evidence.

7. This Court would like to refer the judgment of Hon'ble Apex

Court in the case of State (Delhi Administration) Vs. Pali Ram

reported in (1979) 2 SCC 158, has observed in Paragraph No.30

as under:

"30. 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 sheetanchor 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."

C/SCA/6458/2020 JUDGMENT DATED: 08/10/2021

8. The Hon'ble Madras High Court, in the case of Mr.M.

Venkataswamy (deceased) Vs. Mrs. Mythira Devi and others (in

C.R.P. (PD) No.1275 of 2010), has observed in Paragraph Nos.14,

15, 16 and 17 as under:

"14. Indeed, the Court has discretion to grant commission but the discretion has to be examined judicially and not whimsically and it has to be exercised in aid of justice and not only for the benefit of a party to litigation.

15. Rule 10(A) of Order 26 of C.P.C., deals with the issuance of Commission for scientific investigation (i.e.,) for the purpose of corresponding to the one mentioned in clausee of Section 75 of C.P.C. There are such technical investigation which cannot in the opinion of the Court be conveniently be conducted before the Court.

16. It is obvious to note here that Rule10 (A) has been inserted in Order 26 C.P.C., as a consequence of amendment in Section 75, wherein clause (e) to (g) have been inserted by C.P.C. Amendment of 1976.

17. From the provisions of Rule 10(A), it is clear that a discretion has been vested in the civil court to get any scientific investigation conducted only if it thinks necessary or expedient in the interest of justice. The basic rationale of the provision is that if the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised in the dispute before the Court then such an investigation could be permitted. The basic idea is whether such scientific investigation is going to advance the cause of justice and would be necessary for adjudication for the rights of the parties. Therefore, this Court is under the obligation to see as to whether there is any ground to interfere with in the impugned order passed by the learned Trial Judge. As stated in the fore going paragraphs, it is the case of the 1st respondent/plaintiff that her name is only Mythira devi and not Delli bai.

9. The Hon'ble Patna High Court in the case of Nand Kishore

C/SCA/6458/2020 JUDGMENT DATED: 08/10/2021

Prasad Vs. Amarnath Prasad in 2016(0) Supreme (Pat) 148 has

observed that Court is competent enough to pass such kind of order

in the background of Section 94(e) read with Section 151 of the

C.P.C. whereunder Court is empowered to pass such kind of

interlocutory orders as may appear to the Court to be just and

convenient in the interest of justice.

10. Considering the facts of the present case, there would be no

illegality in referring the document (Exh.15/1)to an expert and

sought opinion of the expert under Section 45 of the Evidence Act

as prayed by the plaintiffs in their application Exh.45.