Prabhudas Ukabhai Maradia vs Mansukhbhai Kodbhai Vadodaria
2022 Latest Caselaw 6568 Guj

     C/SCA/7944/2022                               ORDER DATED: 22/07/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7944 of 2022

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                         PRABHUDAS UKABHAI MARADIA
                                   Versus
                       MANSUKHBHAI KODBHAI VADODARIA
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Appearance:
MR DIPAL R RAVAIYA(6532) for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1,2,3,4
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                               Date : 22/07/2022

                                ORAL ORDER

1. This petition is filed under Article 227 of the

Constitution of India challenging an order dated

23.02.2022 passed below Exh.193 in Regular Civil Suit

No.44 of 2015 (Old Special Civil Suit No.46 of 2007)

whereby an application tendered by the petitioners,

praying for original Notary Register containing signature

of one of the plaintiffs be sent for comparison by

handwriting expert, came to be rejected. The said

application appears to have been given on 08.12.2021.

The petitioner filed a suit claiming declaration to the

effect that, defendant No.3, in the suit, based on forged

Power of Attorney of the plaintiffs, executed registered

C/SCA/7944/2022 ORDER DATED: 22/07/2022

sale-deed in favour of defendant No.1 dated 22.08.2003

and in turn, defendant No.1 sold it to the defendant No.2

vide sale-deed dated 25.01.2006, both these transactions

by way of sale-deed, is illegal and not binding to the

plaintiffs as the first sale-deed came to be executed based

on forged signatures of the petitioners-plaintiffs. For the

purpose of decision of this application, other prayers

made in the suit is not required to be quoted.

2. Mr.Dipal Ravaiya, learned advocate for the

petitioners - plaintiffs submitted that under Order XXVI

Rule 10A of the Code of Civil Procedure, 1908 (for short,

'the Code') it is incumbent upon the Court to appoint

Commissioner to have the scientific investigation of the

document i.e. Notary Register Exh.191, which contains

signature of one of the plaintiffs for comparison to the

handwriting expert. He has further submitted that it is

the case of the plaintiffs from the beginning that sale-

deed for the suit property came to be executed based on

the forged Power of Attorney, which is not binding to

them. However, plaintiffs vide Exh.187 application

C/SCA/7944/2022 ORDER DATED: 22/07/2022

submitted that original Power of Attorney is not traceable

and the said fact has come on record and therefore,

plaintiffs may not have that Power of Attorney in original

with them. It is further asserted in the said application

that original Power of Attorney is not with the defendants

and to that effect, an affidavit is also filed by them.

Therefore, according to his submission, when one of the

plaintiffs signed the Notary Register before whom the

said Power of Attorney is registered, it is required to be

sent to the handwriting expert for his opinion so that

truth may come out on record. Relying on a decision in

the case of Kannagi Rep. by her General Power of

Attorney Agent, Govindharaj Vs. K.Kandasamy and

another reported in C.R.P. (PD) NO.3747 of 2015 by

Madras High Court dated 11.01.2016, it is submitted that

Court is empowered to send the said documents for

scientific investigation, merely because, the Court is able

to compare the signature under Section 73 of the

Evidence Act, such prayer cannot be refused. Therefore,

he submitted that the impugned order refusing the prayer

to send the Notary Register which contains signature of

C/SCA/7944/2022 ORDER DATED: 22/07/2022

one of the plaintiffs to the handwriting expert for the

comparison is illegal and therefore, he has requested that

this petition be admitted and allowed.

3. Having heard the learned advocate for the petitioner

and going through the impugned order as also the

documents annexed with the petition, it is not in dispute

that claim of the petitioners -plaintiffs by way of the suit,

which is filed in the year 2007, is to the effect that sale-

deed in question has come to be executed based on

forged Power of Attorney and therefore, it is not binding

to the petitioners-plaintiffs. It is further undisputed fact

that the petitioners-plaintiffs produced the opinion by

private handwriting expert vide Exh.146, as claimed in an

application Exh.187. It is further undisputed fact that

pursuant to an application filed by the petitioners-

plaintiffs, defendants have filed an affidavit, declaring

that original Power of Attorney is not in their possession.

However, vide an application Exh.187 on 8.3.2021,

petitioners-plaintiffs prayed for issuance of summons to

the Advocate Notary, who registered the said Power of

C/SCA/7944/2022 ORDER DATED: 22/07/2022

Attorney for production of his register which contains

signatures of the petitioners-plaintiffs as also prayer was

made to issue summons as a production witness to the

office of the Sub Registrar while executing sale-deed if

that notarized Power of Attorney forming part of the said

sale-deed as also a prayer was made that if at all any

document is produced and found containing signatures of

the petitioners - plaintiffs that may be sent to the

handwriting expert to compare the same with admitted

signature, which is there on the record of the Court.

However, vide an order passed below Exh.187 dated

23.9.2021, the Court partly allowed the application and

directed the Advocate Notary who notarized Power of

Attorney was issued a summons to remain present before

the Court with documents mentioned in the order

pursuant to which said notary was examined before the

Court and original register vide Exh.191 which contains

the signature of one of the plaintiffs is produced during

the course of his evidence.

C/SCA/7944/2022 ORDER DATED: 22/07/2022

4. However, as coming out from the record, after filing

of the suit in the year 2007, as no exact date coming on

record of the present case in this compilation, from the

very beginning, the petitioners - plaintiffs claimed that

the disputed sale-deeds are executed by so called Power

of Attorney holder on a forged Power of Attorney in the

names of all the petitioners - plaintiffs and therefore,

prayer was sought for to cancel the said sale-deeds

executed based on forged Power of Attorney. It appears

that thereafter no attempts ever made to get the said

Power of Attorney, may be xerox copy, examined by any

handwriting expert upto 2015. As submitted by Mr.Dipal

Ravaiya, learned advocate for the petitioners - plaintiffs

an opinion of private handwriting expert was sought for

and obtained in the year 2015, which is produced on

record. Despite ample opportunity available to the

petitioners-plaintiffs to examine even private handwriting

expert, he was not examined before the Court. Not only

that plaintiffs gave closing purshis on 12.04.2017 and

even defendants had also closed their evidence on

conclusion dated 9.5.2019 written arguments were also

C/SCA/7944/2022 ORDER DATED: 22/07/2022

submitted by the defendants. Thereafter, on different

dates, oral arguments were presented and arguments

were concluded on 21.11.2019 and thereafter, case was

posted for pronouncement of judgment on 26.12.2019.

However, subsequently, judgment could not be

pronounced because of outbreak of corona pandemic. It

appears that petitioners-plaintiffs filed application for

issuance of summons as production witness to office of

Sub Registrar as also the Notary, which was also acceded

to by the Court subsequent to the conclusion of evidence

as also the argument in the case.

5. Even from the xerox copy of Power of Attorney

everyone could have known that before whom the said

document is notarized and petitioners-plaintiffs could

have examined that Notary as their witness before they

closed their evidence. Not only that is not done, when

they were permitted to examine the Notary as a witness

which contains the signature of one of the plaintiffs in the

Register of the Notary, they have come out with another

application Exh.193 requesting the Court to send the said

C/SCA/7944/2022 ORDER DATED: 22/07/2022

Register for comparison of signature of one of the

plaintiffs, which is ultimately came to be turned down by

the Court.

6. As coming out from the order when Notary before

whom the Power of Attorney is executed has deposed

before the Court saying that his Register contains

signature of one of the plaintiffs who signed before him,

perhaps, no such Register could have been requested to

be sent for comparison of a signature of one of the

plaintiffs in that Register. When the said Notary has

deposed before the Court that disputed Power of Attorney

is executed before him that is proof that petitioners-

plaintiffs were before the Notary and out of them one has

signed the Register, which disproves their claim that the

Power of Attorney is forged one. Therefore, they have

come out with such application, that too, at a belated

stage to send the said Register for the purpose of

comparison / examination by the handwriting expert but

when person deposes before the Court before whom it is

signed even if such opinion evidence is obtained that can

C/SCA/7944/2022 ORDER DATED: 22/07/2022

never dislodge the ocular evidence before the Court in

absence of any other corroborative evidence.

7. At any rate, when the petitioners had obtained

before closing of their evidence an opinion from private

handwriting expert, they could have examined him before

the Court as their witness if at all they want. Their

evidence was closed in the year 2017 and evidence of the

defendants was also closed in the year 2019. All these

new facts of examining the Notary Public before the

Court, that too, at the instance of the petitioners-

plaintiffs, has come after case was posted for

pronouncement of judgment. As such, whatever material

based on which parties can argue their case is available

on record and best available evidence of a person before

whom the document is signed is also examined by the

Court, apart from the delay in seeking such prayer, no

such exercise is to be undertaken, that too, resorting to

Order XXVI Rule 10A of 'the Code', which could have

been availed of from the day one when they filed a suit.

C/SCA/7944/2022 ORDER DATED: 22/07/2022

8. It is rightly concluded by the learned Judge that at

that stage, no evidence should be appreciated either to

send the said documents for the purpose of examination

by handwriting expert or not, more particularly, when

there is on record available deposition by Notary Public

who registered / notarized the said Power of Attorney,

which is claimed to be forged one.

9. Decision in the case of Kannagi Rep. by her General

Power of Attorney Agent, Govindharaj (Supra) relied on

by the advocate for the petitioners -plaintiffs is not of any

help to him for the reasons that first of all it would have a

persuasive value, not only that, the factum of document

being forged one came to the knowledge of a party

concerned when evidence was led before the Court for

the first time and immediately he applied for the said

relief. In the present case, the whole suit is based on

contention that the sale-deeds in question are executed

based on forged power of attorney despite that no

attempts are made by the plaintiffs to bring on record by

proof thereof even an opinion of private handwriting

C/SCA/7944/2022 ORDER DATED: 22/07/2022

expert by examining him before the Court.

10. In that view of the matter as also such an attempt is

made at a belated stage which requires no interference

with the order impugned while exercising jurisdiction

under Article 227 of the Constitution of India.

11. Hence, this petition is rejected.

(UMESH A. TRIVEDI, J) ASHISH M. GADHIYA