Jayendrasinh Chhatrasinh ... vs Dasaratbhai Maganbhai Desai
2021 Latest Caselaw 15902 Guj

    C/SCA/11964/2021                               CAV JUDGMENT DATED: 08/10/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 11964 of 2021


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 the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== JAYENDRASINH CHHATRASINH VASANDIYA Versus DASARATBHAI MAGANBHAI DESAI ========================================================== Appearance:

MR VIRAL K SHAH FOR TATVDEEP J JANI(7227) for the Petitioner(s) No. 1 for the Respondent(s) No. 2,3,4,5 MR SALIL M THAKORE(5821) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE B.N. KARIA Date : 08/10/2021 CAV JUDGMENT

1. Draft Amendment is allowed. Necessary amendment to

be carried out forthwith.

2. Rule. Mr.Salil M. Thakore, waives service of notice of

Rule for and on behalf of the the respondent.

C/SCA/11964/2021 CAV JUDGMENT DATED: 08/10/2021

3. On a request being made by learned advocates for the

respective parties, this matter is heard finally today.

4. By preferring this petition, petitioner has prayed to

quash and set aside the order dated 19.06.2021 passed by the

learned Principal Senior Civil Judge, Olpad below application

at Exh.263 in Special Civil Suit No.140 of 2018 and has

further prayed to quash and set aside the the order dated

24.03.2021 passed by the learned Principal Senior Civil

Judge, Olpad below application at Exh.262 in Special Civil

Suit No.140 of 2018 at Annexure-F and further prayed to stay

the order dated 24.03.2021 passed by the learned Principal

Senior Civil Judge, Olpad below application at Exh.262 in

Special Civil Suit No.140 of 2018 at Annexure-F.

5. The short facts leading to the filing of the present

petition are as under:

5.1 The petitioner is the original defendant no.5 and the

respondent no.1 is the original plaintiff and the

respondent nos.2 to 5 are the original defendant

nos.1 to 4 in Special Civil Suit No.140 of 2015.

5.2 The plaintiff has filed Special Civil Suit No.140 of

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2018 for specific performance, cancellation of sale

deed, declaration and permanent injunction with

respect to land baring Revenue Survey No.241/2,

Block No.397 admeasuring 7183 sq. mtrs situated

at Mouje Village Masma, Tal.: Olpad, Dist.: Surat.

5.3 After completion of the deposition of plaintiff, in

order to fill up the lacuna which the plaintiff was

unable to prove, on 05.03.2021, the plaintiff has

moved an application at Exh.262 in Special Civil

Suit No.140 of 2018 under Order 26 Rule 10A of the

Code of Civil Procedure, 1908 seeking a direction (i)

directing the defendant no.5 to appear before the

Court and to provide finger prints of both the hands

on a green ledger paper and (ii) to refer the matter to

the Commissioner and send the specimen samples

to Directorate of Forensic Science, Gandhinagar and

call for the report to decide whether the thumb

impression shown on right side of defendant no.5's

photo on Page-9 of Exh.165 and the finger prints

provided by the defendant no.5 before the Court is

of the same person or not.

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5.4 The learned Principal Senior Civil Judge and

Additional Chief judicial Magistrate, Olpad allowed

the application filed by the plaintiff vide order dated

24.03.2021 below Exh.262, whereby directed the

defendant no.5 to appear before the Court and

provide finger prints of both the hands on a green

ledger papers.

5.5 In view of the order dated 24.03.2021 passed below

Exh.262, the defendant no.5 appeared before the

Court and provided the finger prints of both his

hands and the procedure as per the said order is

going on.

5.6 Thereafter, learned Principal Senior Civil Judge,

Olpad, vide order dated 19.06.2021, allowed the

application filed at Exh.263. In view of the order

dated 19.06.2021 passed below application filed at

Exh.263, the plaintiff has given a notice through

whatsapp dated 28.07.2021 to the defendant no.5's

advocate directing the defendant no.5 to remain

present before the handwriting expert on

29.07.2021. Thereafter, on 30.07.2021, the plaintiff

C/SCA/11964/2021 CAV JUDGMENT DATED: 08/10/2021

has filed a pursis in Special Civil Suit No.140 of

2018 stating that the plaintiff has informed vide

letter dated 29.07.2021 to the appointed

handwriting expert.

5.7 According to the petitioner, the Court has exceeded

discretionary jurisdiction vested upon him and

allowed the application at Exh.263 beyond the

prayers prayed for. Thus, being aggrieved and

dissatisfied by the order dated 19.06.2021 passed

by the learned Principal Senior Civil Judge, Olpad

below application at Exh.263 in Special Civil Suit

No.140 of 2018, whereby the learned Judge allowed

the application filed by the plaintiff under Order 26

Rule 10A of the CPC and directed the defendant

no.5 to remain present before the Commissioner,

Directorate of Forensic Science, Gandhinagar for

giving specimen signature even though the plaintiff

sought a prayer directing the defendant no.5 to

remain present before the Court for giving specimen

signature, the defendant no.5 has filed this petition.

C/SCA/11964/2021 CAV JUDGMENT DATED: 08/10/2021

6. Heard Mr.Viral K. Shah, learned advocate appearing for

Mr.Tatvdeep J. Jani, learned advocate for the petitioner and

Mr.Salil M. Thakore, learned advocate for the respondent.

7. Learned advocate for the petitioner submits that the

learned Judge has exceeded its inherent powers and

discretionary jurisdiction vested upon him and allowed the

application at Exh.263 beyond the prayers prayed for and

directed the defendant no.5 to remain present before the

Commissioner, Directorate of Forensic Science, Gandhinagar

for giving specimen signature even though the plaintiff sought

a prayer directing the defendant no.5 to remain present before

the Court for giving specimen signature. It is further

submitted that the learned Judge has failed to appreciate that

Section 73 of the Evidence Act has conferred power upon the

Court to compare the disputed signature with the admitted

signature in order to ascertain whether the disputed signature

is genuine, or not. If it is proved to the satisfaction of the

Court, then there is no necessity for taking help of an expert

as per provision of Section 45 of the Evidence Act. In that

case, there is no necessity to send the disputed signature to

an expert under Order 26 Rule 10A of the CPC. It is further

C/SCA/11964/2021 CAV JUDGMENT DATED: 08/10/2021

submitted that the learned Judge has failed to appreciate that

in view of the order dated 24.03.2021 passed below Exh.262,

the defendant no.5 already appeared before the Court and

provided the finger prints of both his hands and the procedure

as per the said order is going on. It is further submitted that

the learned Judge has exceeded the jurisdiction vested in it by

directing the defendant no.5 to remain present before the

handwriting expert at Gandhinagar and to provide the

specimen signature in an application filed by the plaintiff

under Order 26 Rule 10A of the CPC. It is further submitted

that the learned Judge has failed to appreciate that the

opinion of the handwriting expert is nothing but a piece of

evidence and it is for the Court to arrive its own decision on

apprehension of the entire material available on record.

Hence, it is requested by learned advocate for the petitioner to

allow this petition by quashing and setting aside the order

dated 19.06.2021 passed by the learned Principal Senior Civil

Judge, Olpad below application at Exh.263 in Special Civil

Suit No.140 of 2018 at Annexure-A. In support of his

arguments, learned advocate for the petitioner has relied upon

the judgment in the case of Smt. Ningamma and another Vs.

Chikkaiah and another reported in AIR 2000 Karnataka 50.

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8. Learned advocate for the respondent submits that the

Trial Court has committed no error in allowing the application

at Exh.:262 as well as Exh.263 filed by the plaintiff vide orders

dated 24.03.2021 and 19.06.2021 considering the issue

involved in the suit filed by the plaintiff. It is further submitted

that the suit is mainly on the basis of two documents i.e. (i)

Satakhat dated 10.02.2006 executed between defendant no.2

and defendant no.5 (Exh.165) and (ii) agreement dated

20.06.2011 (Exh.176). It is further submitted that the suit

was filed by the plaintiff for specific performance and other

reliefs on the basis of the above documents and the petitioner,

being defendant no.5, disputed both the above documents in

his written statement containing that they are forged and

there is no thumb impression and signature made by him. It

is further submitted that as thumb impression and signature

were denied and disputed by the defendant no.5, a request

was made by the plaintiff for getting two documents examined

by the handwriting expert and compared with specimen

signatures and thumb impressions. It is further submitted

that the Trial Court thought it fit to direct that the documents

would examine by an independent Government Laboratory viz.

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FSL and further directed that the expert will compare

specimen handwriting and specimen thumb impression with

the documents. It is further submitted that the defendant no.2

has given his thumb impression and FSL report is also

received by the Civil Court in June-2021 as per the order

passed below Exh.247 dated 18.02.2021. It is further

submitted that the petitioner has also given his thumb

impression in July-2021 and complied with the order passed

below Exh.262. That the Civil Court has also sent specimen

signature as well as original documents at Exh.165 to FSL for

comparison and FSL Report is awaited. It is further submitted

that it is necessary to give specimen handwriting/signature of

the present petitioner in presence of handwriting expert from

FSL so that handwriting expert can ask the petitioner to write

words in different sizes, on paper that the expert deems

necessary for examination. Referring Rule 10(A) of Order 26 of

the CPC, it is submitted that the Court is empowered for

issuance of commission for scientific investigation, (i.e.) for

the purpose of corresponding to the one mentioned in clause

(e) of Section 75 of the CPC. It is further submitted that there

are some technical investigations which cannot, in the

opinion of the Court, be conveniently conducted before the

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Court. The discretion has been vested in the Civil Court to get

any scientific investigation conducted only if it thinks it

necessary or expedient in the interest of justice. It is further

submitted that as truth and determining the controversy is

raised in the dispute before the Court, such investigation

through handwriting expert was necessary. It is further

submitted that under article 227 of the Constitution of India,

Court cannot assume unlimited prerogative to correct all

specifies of hardship or wrong decisions. It is further

submitted that there is no gross injustice likely to be caused

to the present petitioner if handwriting expert would get the

finger prints of the petitioner or thumb impression for

comparison of the documents. Hence, it is requested by

learned advocate for the respondent to dismiss the present

petition.

9. Having considered the facts and circumstances of the

present case, submissions made by learned advocates for the

respective parties as well as documents produced on record, it

appears that initially, the petitioner challenged the order

passed below Exh.263 dated 19.06.2021. Along with the

petition, the petitioner produced copy of the order passed

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below Exh.262 dated 24.03.2021 in Special Civil Suit No.140

of 2018 which was not challenged when the petition was filed.

At the time of final hearing of the petition, on 24.09.2021, the

petitioner sought permission by way of draft amendment to

challenge the order passed below Exh.262 dated 24.03.2021.

It also appears from the record that the plaintiff initially filed

one application Exh.247 praying that specimen thumb

impression of the defendant no.2 be compared by expert with

thumb impression appearing on Satakhat dated 10.02.2006 at

Exh.165 executed between defendant no.2 and defendant

no.5. The Trial Court allowed the application at Exh.243 vide

order dated 18.02.202 directing the FSL to compare the

specimen thumb impression with Satakhat dated 10.02.2016

and submit a report. As per the submissions made by learned

advocate for the respondent, thumb impression was given by

the defendant no.2 and report is also received by the Civil

Court in June-2021 which is not a subject matter of the Court

as ordered is not challenged. Thereafter, the original plaintiff

filed an application Exh.262 praying that specimen thumb

impression be compared by expert with thumb impression

appearing on Satakhat dated 10.02.2006 at Exh.165 executed

between defendant no.2 and defendant no.5. The Trial Court

C/SCA/11964/2021 CAV JUDGMENT DATED: 08/10/2021

allowed the application Exh.262 vide order dated 24.03.2021

directing the FSL to compare specimen thumb impression

with Satakhat dated 10.02.2016. As per the order passed

below Exh.262, as submitted by learned advocate for the

respondent, thumb impression was given by defendant no.5

(present petitioner) in July-2021 and complied with the order

as admitted in Paragraph-2.7 of the petition. Learned advocate

for the respondent has further submitted that the Civil court

has sent specimen as well as original documents at Exh.165

to FSL for comparison in July-2021 and FSL report is awaited

by the Civil court. Admittedly, when this petition was filed on

17.08.2021, order passed below Exh.262 by the Civil Court

was not challenged and thereafter, draft amendment was

sought at a final hearing of the petition on 24.09.2021. Prima

facie there is reason to believe that the order passed below

Exh.262 is already complied with by the petitioner. However,

FSL report is awaited by the Civil Court. It appears from the

record that the plaintiff filed another application at Exh.263

with a prayer that specimen signature/handwriting expert of

defendant no.5 be taken by handwriting expert and compared

with handwriting appearing on agreement dated 20.06.2011 at

Exh.176. The Court-below allowed the application at Exh.:263

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vide order dated 19.06.2021 directing the handwriting expert

of Directorate of Forensic Science, Gandhinagar to take the

specimen signatures/handwriting of the defendant no.5 in the

manner and on paper, he deems appropriate and compare the

specimens with the signature/handwriting appearing on the

document at Exh.176. The order passed below Exh.263 by

the Trial Court is not complied with as it is challenged before

this Court. Considering the issue raised in the suit preferred

by the plaintiff and two documents at Exhs.165 and 176, the

petitioner has disputed his signature, therefore, it would be

necessary that handwriting expert would observe the

specimen handwriting/signature in his presence as it deems

fit. Section 73 of the Evidence Act certainly permits the Civil

Court to ascertain whether a writing is that of the person by

whom it purports to have been written any writing

admitted or proved to the satisfaction of the court to have

been written by that person may be compared with the one

which is to be proved, although that signature, writing has

not been produced or proved for any other purpose. The Court

may direct any person present in Court to write in words or

figures for the purpose of enabling the Court to compare

words or figures alleged to have been written by such person.

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The Court in the case of a disputed writing, is competent to

obtain an exemplar or specimen writing. The Hon'ble Supreme

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 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."

10. 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

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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 clause-e 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 Rule-10 (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."

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11. In the similar facts of the case of suit for specific

performance of contract based upon an agreement allegedly

amongst the parties, defendant denied his presence over the

document and the Trial Court directed him to give his

specimen of writing and signature in the Court and the

Hon'ble Patan High Court in the case of Nand Kishore 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.

12. In another case i.e. in the case of Thiruvengadam

Pillai Vs. Navaneethammal and another reported in (2008)

4 SCC 530, referring the judgment in the case of State (Delhi

Administration) Vs. Pali Ram (supra), the Court has

observed that there is no doubt that the Court can compare

the disputed handwriting/signature/finger impression with

the admitted handwriting/signature/finger impression, such

comparison by the Court without the assistance of any expert,

has always be considered to be hazardous and risky and

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where the disputed thumb impression is smudgy, vague or

very light, the Court should not hazard a guess by a causal

perusal.

13. In the case of Smt. Ningamma and another Vs.

Chikkaiah and another (supra), the question was whether a

person can be compelled by the Court to undergo such a

medical test as blood group test or the like against his wish,

and to create doubt about the chastity of a woman or create

doubt about the man's paternity. Under the circumstances, it

was held such medical examination of his or her blood test or

the like without his consent or against his wish tantamounts

to interference with his fundamental right of life or liberty. The

facts of the case quite are different rather than the facts of the

present case and therefore, the judgment would be applied to

the present case.

14. The Hon'ble Supreme Court, in the case of Laxmikant

Revchand Bhojwani and another Vs. Pratapsing

Mohansingh Pardeshi reported in (1995) 6 SCC 576, has

observed that the High Court under Article 227 of the

Constitution of India cannot assume unlimited prerogative to

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correct all species of hardship or wrong decisions. It must be

restricted to cases of grave dereliction of duty and flagrant

abuse of fundamental principles of law or justice.

15. Keeping in view the above facts, this Court finds that the

Trial Court has rightly considered the purpose as well as two

documents at Exhs.165 and 176 and dispute of

signature/thumb impression raised by the present petitioner,

and therefore, it was necessary to get help of the expert for

conclusion of the dispute.

16. In the result, present petition is hereby dismissed. The

impugned order passed the order passed below Exh.262 dated

24.03.2021 as well as below Exh.263 order dated 19.06.2021

is hereby confirmed. Rule is discharged.

(B.N. KARIA, J) rakesh/