Chhotalal Bhaichandbhai Panchal ... vs Chetan Krishnakant Shah Huf Its ...
2022 Latest Caselaw 5403 Guj

     C/SCA/10611/2022                                JUDGMENT DATED: 23/06/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 10611 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

==========================================================

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 ?

==========================================================
CHHOTALAL BHAICHANDBHAI PANCHAL SINCE DECD. THROUGH LHS
                         Versus
  CHETAN KRISHNAKANT SHAH HUF ITS GENERAL MANAGER AND
             KARTA CHETAN KRISHNAKANT SHAH
==========================================================
Appearance:
MR DHAVAL VYAS FOR MR DA SANKHESARA(5955) for the Petitioner(s)
No. 1,1.1,1.2,2
for the Respondent(s) No. 2,2.1,2.2,2.3,2.4,2.5,2.6,2.7
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                              Date : 23/06/2022

                             ORAL JUDGMENT

1. Challenge in this petition is to an

order passed below Exh.144 dated 17.03.2022

whereby defendant prayed for sending documents at

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

Exh.104, 105 and 106 being Banachiththi and

Vouchers / money receipts for verification of

signature through hand writing expert from

Forensic Science Laboratory (for short, 'FSL'),

which came to be rejected by learned Principal

Senior Civil Judge, Sanand. Over and above that

vide Exh.154, the petitioners-defendants prayed

for review of an order passed below Exh.144 by

the said Court under Order XLVII Rule 1 of Code

of Civil Procedure, 1908, (herein after referred

to as 'Code') which also came to be rejected by

an order dated 22.04.2022. Both these orders are

under challenge in the present petition under

Article 227 of the Constitution of India.

2. The Respondent No.1-plaintiff instituted

a suit bearing Special Civil Suit No.5 of 2017

(old Special Civil Suit No.150 of 1995) before

the learned Principal Senior Civil Court, Sanand

seeking specific performance of agreement to sell

dated 9.3.1995 claimed to have been executed by

the petitioner No.2 - defendant No.2 and deceased

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

Chhotalal Bhaichand Panchal. Permanent injunction

was also sought for in the suit restraining the

petitioners - defendants or their persons,

agents, Power of Attorneys, Representatives, etc.

not to transfer, sale, assign, let, sub-let,

lease in whatsoever manner the lands bearing

Survey Nos.324, 325, 336, 328, 329, 330, 332 and

340 of Mouje: Sanand, Taluka: Sanand, District:

Ahmedabad.

3. Mr.Dhaval Vyas, learned advocate for

Mr.D.S.Sankhesara, learned advocate for the

petitioners submitted that from the stage of

written statement, the petitioners - defendants

have claimed that the document based on which

decree of specific performance of an agreement to

sell is asked for are not bearing their

signatures and it bears forged signatures of

them. Not only that the plaintiff as also his

witnesses have been sufficiently cross examined

in that respect. It is further submitted that

though xerox copy of such documents were produced

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

after filing of the suit, while evidence was

being led by the plaintiff in the year 2015,

notarized copy of the said agreement came to be

produced, which was objected to by the

petitioners-defendants, and therefore, the

plaintiff was constrained to produce original

document on 4.7.2016 for the first time before

the Court. He has further submitted that not only

since the filing of written statement, the said

plea is raised about the documents being forged

not bearing signatures of the petitioners-

defendants but they have also obtained opinion of

the hand writing expert in respect of signatures

over the same and it supports the defence of the

petitioners- defendants. He has further submitted

that it is only with a view to see that there may

not be an argument from the plaintiffs that the

opinion obtained from the private hand writing

expert is obtained by them and therefore, it may

be biased one, the petitioners - defendants would

like to have opinion of a Government hand writing

expert through 'FSL' so that it cannot be

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

disputed by the either side. It is further

submitted that it would be in the interest of the

respondent No.1 - plaintiff, if at all, the

opinion of the expert goes against the

petitioners- defendants and therefore, there is

nothing to object to the same. It is further

submitted that the vehemence with which this

examination is objected to speaks for itself that

the respondents-plaintiffs are not sure that

signatures over the documents are that of the

petitioners - defendants or not.

3.1 It is further submitted that merely

because no criminal case is filed against the

respondents-plaintiffs on finding the documents

which are sought to be produced and based on

which decree is sought for specific performance

may not lead to conclusion that it can never by

requested to the Court to send the same for the

purpose of examination through the expert of the

Government.

   C/SCA/10611/2022                                   JUDGMENT DATED: 23/06/2022



3.2           He      has          further          submitted                 that

considering          the    long     drawn        litigation          and       the

proceedings, it appears that the petitioners -

defendants alone cannot be held responsible for

delay caused in determining the suit. He has

further submitted that recently in the year 2021

i.e. 19.7.2021 cross-examination of plaintiff by

the petitioners-defendants got over. Therefore,

petitioners - defendants cannot be deprived of

their right to get those documents examined by an

independent expert from the Government, that too,

on a specious plea that it has been filed to

further delay the proceedings.

3.3 He has further submitted that as such,

examination of the disputed documents by hand

writing expert from the Government would help the

Court to find out the truth in respect of it so

as to decide the case pending before it. He has

further submitted that initially issues were

framed in the year 1999 vide Exh.25. However,

they were recast in the year 2016 vide Exh.97

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

throwing burden on the petitioners to prove that

the documents like Banachiththi and vouchers -

money receipts relied on are not signed by the

petitioners - defendants and they are forged one.

It is further submitted that it is in that state

of facts, it is all the more desirable to have

the opinion of an independent person like

Government expert on the issue so as not to

condemn the private hand writing expert whose

opinion is obtained and petitioners-defendants

are going to examine him in their defence. He has

further submitted that if at all opinion of

Government expert goes against the petitioners-

defendants, it may corroborate the case of the

respondent No.1 - plaintiff and therefore, there

should not be any objection for the same by them.

3.4 He has further submitted that the

evidence on behalf of the petitioners -

defendants is yet to proceed. If by maintaining

the schedule on behalf of the petitioners-

defendants and their witnesses, the documents

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

could be sent for the examination to have the

scientific opinion on the same and report is

obtained, it may be helpful to the Court also for

the just decision of a case.

3.5 It is further submitted that the learned

Judge while relying on the decision of Andhra

Pradesh High Court has held that though no time

limit is prescribed for applying to send the

documents for the opinion of the hand writing

expert even where no time limit is prescribed

under a residuary clause, maximum time limit

would be of 3 years and that too, purpose of

sending the same should be served, is erroneous.

The aforesaid finding is also incorrect. It is

only on the satisfaction of the Court that

delayed application, if at all, is filed with a

view to avoid the conclusion of trial, the Court

may not entertain the application but it cannot

be rejected on the ground that it should have

been prayed for maximum within 3 years under a

residuary clause of limitation for preferring the

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

same.

3.6 It is further submitted that the reason

given by the learned trial Judge for rejecting

the application is that there is delay in the

present case and the explanation is not

reasonable and no reason is assigned in the

application for the delay to send the same for

examination.

3.7 At last, it is submitted that the

petitioners-defendants may be put to the terms

for concluding their other evidence if at all

opinion is sought for and the officer so directed

to examine the documents may also be put to terms

to opine on the issue. Therefore, it is submitted

that the impugned order and the order passed

below Exh.154 praying to review the same are

erroneous and illegal and this petition is

required to be entertained.

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

3.8 In support of his claim, Mr.Vyas,

learned advocate has relied on decision in the

case of Rama Avatar Soni V/s. Mahanta Laxmidhar

Das and others reported in (2019) 11 SCC 415 more

particularly, para 7 and 8 thereof for a

proposition that if the scientific investigation

of the document in question facilitates

ascertaining truth, in the interest of justice,

naturally it has to be ordered.

3.9 Drawing attention of the Court to the

order impugned, it is submitted that, as recorded

in it, considering the record both the parties

before the trial Court are responsible for

causing delay in decision thereof. It is

concluded that neither of them have attempted to

see that on the date of hearing it proceeds.

Therefore, according to his submission, denying

the opportunity to have the opinion of

independent witness like Government expert in

respect of forged documents, it cannot be said

that the said prayer is made with a view to delay

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

the proceedings. It is further submitted that the

reason assigned by the learned Judge to reject

the said application is that if those documents

are sent to the 'FSL' right now, the truth may

not come out in view of the fact that the

signature said to have been appended to in the

year 1995 is sought to be examined in the year

2022. However, it is submitted that according to

the case of the petitioners, it being forged

signature, there is no question of it being

appended to in the year 1995. It is further

submitted that the learned Judge has failed to

consider that the documents in an around the year

in which they are said to have been executed in

the form of natural writing would still be

available and those documents can also be sent to

the 'FSL' for the purpose of examination.

Therefore, the aforesaid reason assigned by the

learned Judge for rejecting the said application

is erroneous and it is required to be set aside.

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

4. As against that, Ms.Trusha K. Patel,

learned advocate for the Respondent No.1-

plaintiff submitted that though petitioners-

defendants were served in the year 1995, to be

precise on 15.5.1995, no such prayer was ever

made by petitioners-defendants for sending the

documents for the purpose of examination by the

hand writing expert to have the opinion. It is

further submitted that if at all the petitioners-

defendants were sure about documents not bearing

their signatures and they are forged one, as a

prudent man, they would have immediately filed

the criminal prosecution against the Respondent

NO.1 - plaintiff without waiting for anything

else.

4.1 It is submitted that non-filing of such

complaint / FIR against the Respondent No.1 -

plaintiff is suggestive of the fact that the

defence raised in a written statement is without

any support or semblance of truth. It is further

submitted that the Banachiththi as also the money

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

receipts being Exh.104, 105, 106 came to be

executed on 9.3.1995, suit is also filed in the

said year and the petitioners - defendants were

served with the summons, they have also not

prayed for either production or inspection of

original documents so as to exercise their

discretion to have the documents examined from

the Government Expert, if at all, they dispute

signature thereon. It is further submitted that

the petitioners - defendants have never sought

for any inspection of the disputed documents, it

has never been requested for production thereof

before the Court for the purpose of hand writing

expert. It is further submitted that considering

the fact that the suit is filed in the year 1995

even after 27 years thereof, it has yet not been

concluded. Though xerox copy of the disputed

documents produced before the Court on 15.5.1995,

even notarized copy of the said documents

produced on 10.4.2015 and the original documents

on 4.7.2016, the application Exh.144 came to be

filed for the first time on 1.10.2021. Therefore,

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

it is submitted that the application lacks bona-

fides and it is filed after long delay, that too,

at the fag end of the trial and therefore, on

that ground alone, it should not be permitted.

4.2 It is further submitted that they cannot

request the Court for collection of evidence on

their behalf and therefore, the learned Judge has

rightly rejected the said application.

4.3 It is further submitted that the Court

cannot be asked to collect the evidence on behalf

of the party. Requesting the Court to have the

scientific investigation of the documents which

are disputed is nothing but an attempt to request

the Court to collect the evidence on behalf of

the petitioners. Therefore, the learned Judge has

rightly rejected the application Exh.144 as also

application praying for review of the said order

vide Exh.154.

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

4.4 Drawing attention of the Court to

Section 75, Order XXVI, Rule 9 and 10-A of the

'Code' to submit that it is only when Court deems

proper for the purpose of elucidating any matter

in dispute or of ascertaining market value of

property and amount of mesne profit or damages or

annual net profit etc., the Court may issue a

commission to throw light thereon. It is the

satisfaction of the Court that the scientific

investigation is needed for the purpose of

determining the suit and the Court can suo-motu

grant the same but no one is expected to apply

for the same for the purpose. According to her

submission, Order XXVI Rule 10-A of the 'Code',

is the enabling provision which enables the Court

to order the same, that too, suo-motu and not at

the instance of any party.

4.5 The provision made under Order XXVI Rule

10-A of the 'Code', enables the Court to have

scientific investigation to impart the complete

justice. It is not a right of the party to seek

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

such commission for proving its case.

4.6 It is submitted that petitioners-

defendants could have filed application under

Order XI Rule 12 and 14 of the 'Code', seeking

production of the original documents, which was

not done for nearly 27 years, either for the

purpose of inspection or for the purpose of

scientific investigation.

4.7 It is further submitted that the

original disputed documents were produced by the

Respondent No.1- original plaintiff on 4.7.2016

and for about 5 years thereafter, the present

application has come to be filed requesting the

Court to send the documents for the purpose of

examination of signature thereon to the hand

writing expert.

4.8           It        is       further                  submitted                that

petitioners-           defendants           have      not       produced             any

documents              containing                   their             signatures





      C/SCA/10611/2022                                            JUDGMENT DATED: 23/06/2022



contemporary                  in     the        year         1995         with          which

comparison              could        be       made.        Therefore,            she        has

submitted that hand writing / signature bound to

defer after about 26 years and therefore, no

fruitful purpose would be served in sending the

documents for the opinion of hand writing

experts, that too, after this much delay and

therefore, the learned Judge has rightly rejected

the said application.

4.9 Incidentally, it is submitted that, for

challenging an order passed below Exh.144

refusing to send the disputed documents for

scientific investigation as also rejecting an

application filed below Exh.154, which is beyond

the scope of review under Order XLVII of the

'Code;, separate petition should have been filed.

4.10 At last, it is submitted that the scope

in a petition under Article 227 of the

Constitution of India filed before this Court

challenging the order impugned is very narrow and

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

the Court is to examine whether any

jurisdictional error is committed by the learned

Judge or not and nothing beyond.

4.11 In support of her submission, she has

relied on a decision of Division Bench of this

Court in the case of MAHALAXMI CONSTRUCTION CO &

2 VERSUS AMITA CORPORATION & 7 rendered in

Letters Patent Appeal No.1514 of 2010 determined

on February 14, 2011 to submit that in a case

where there was a delay of 18 years of

presentation of the suit and applying for sending

the documents for scientific examination, this

Court declined the request on the ground of

delay. Referring to para-10 and 11 thereof, it is

submitted that such order, as observed in the

aforesaid decision, being an interlocutory order,

this Court may not interfere while exercising

jurisdiction under Article 227 of the

Constitution of India.

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

4.12 Another decision relied on by Ms.Patel,

learned advocate for Respondent No.1-original

plaintiff, of the the learned Single Judge of

this Court in the case of BHAGWANBHAI BHIMABHAI

PATEL & 2 VERSUS EXECUTIVE MANAGER & 5 rendered in

Special Civil Application No.11470 of 2011

determined on 17.11.2011 to submit that power

under Order XXVI Rule 10-A of the 'Code' is to be

exercised when the Court deems it to be requisite

or proper and not with a view to enable the party

in getting the witness examined and assist him in

that direction.

4.13 In short, the submission of the learned

advocate for the respondent No.1 is that,

normally, unless and until, the Court is

satisfied that the said scientific examination of

a document is needed for the decision in the

suit, it should not have been granted on mere

asking, more particularly, when despite several

opportunities, the petitioners - defendants have

not availed it for a pretty long time. Therefore,

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

she has submitted that petition may not be

entertained.

5. Having heard learned advocates for the

appearing parties as also perusing the impugned

order, documents annexed with the petition

presented for perusal, it is undisputed that the

said application has come to be filed at a

belated stage, nearly about 26 years after the

filing of the suit. It is also undisputed that

the petitioners-defendants have obtained an

opinion of a private hand writing expert on the

disputed documents and they are going to examine

the said witness before the Court, as submitted

by the learned advocate for the petitioners -

defendants.

6. As such, the parties before the Court

are entitled to lead evidence in support of their

cases. However, when intervention of independent

Government authority is needed for an issue

raised before the Court disputing the genuineness

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

of the documents based on which suit is filed,

normally, Court should lean towards ordering

scientific examination of the same before acting

upon those documents which would help the Court

from doing justice to the case.

7. No doubt, the said application has come

to be filed after a prolonged period but fact

remains that the petitioners - defendants have

since day of filing their written statement

disputed those documents i.e. Exh.104, 105 and

106 which are Banachiththi and the money

receipts/vouchers bearing their signatures over

the same. It is important to note that the suit

of the Respondent No.1- plaintiff is based on

those important documents like Banachiththi and

the money receipts, which are disputed to be

genuine, seeking specific performance of that

Banachiththi. Not only such defence is raised in

the written statement, as submitted by learned

advocate for the petitioners-defendants, even

plaintiff and his witnesses were also cross

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

examined on that line by the petitioners -

defendants, which is not disputed by the learned

advocate for the Respondent No.1-plaintiff. The

submission made on behalf of the petitioners -

defendants that they have obtained the opinion of

private hand writing expert which is in their

favour and they are going to examine him as their

witness also again not disputed by the learned

advocate for the Respondent No.1-plaintiff.

8. It appears that the deposition of

private hand writing expert may not be condemned

as being biased one because he has been examined

on behalf of the defendants, perhaps it might

have thought that opinion of independent

Government expert may also be sought for, such

application is filed. As such, merely because

disputed documents are examined by the private

hand writing expert and opinion thereon is

expressed cannot be taken out of consideration on

the ground that his opinion is biased one as it

has been sought for by particular party. He is

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

also an expert on a hand writing science and the

other party would be free to cross examine him to

dislodge his expertise.

9. Of course, the application Exh.144 came

to be filed at belated stage, that too, at-least

five years after production of the original

documents before the Court, but as recorded in

impugned order, both the parties are responsible

for causing delay in determining the suit. As

observed by the learned Judge on each date of

hearing, no party has made any attempts to see

that the case proceeds. Therefore, the right of

any party to examine any witnesses on his behalf,

though, based on first scientific examination is

to be undertaken, can be frustrated on the ground

of delay alone for which, petitioners -

defendants alone are not responsible. One of the

reasons assigned by learned Judge relying on a

decision of Andhra Pradesh High Court that though

no limitation is prescribed for sending the

documents for the opinion of hand writing expert

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

in absence of any prescribed limitation, one has

to fall back on the residuary clause and that

would be 3 years. As such, said reason appears to

be not logical. Law of limitation would bar the

remedy but will not extinguish the right of a

party. A party can be denied sending of a

document for scientific investigation by hand

writing expert of 'FSL' if he deliberately delays

the proceedings before the Court and with that

attempt only, such application is preferred at

the fag end of the trial. But in no case when he

has disputed the signatures over the disputed

important documents Exh.104, 105 and 106 since

filing of his written statement and the

plaintiffs and his witnesses are cross examined

on that line, he may be given an opportunity to

have the documents scientifically examined by the

hand writing expert from 'FSL' being Government

independent officer to have the opinion thereon.

10. It is all the more necessary in the

quest of finding out the truth by the Court. When

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

party comes filing the suit based on such

documents, if disputed to be forged one, for

pronouncing or determining the rights of a party

in a suit, opinion by an expert, that too, by

independent experts is all the more helpful to

the Court to come to a correct conclusion.

11. If the Respondent No.1 -plaintiff is

much sure about execution of a Banachiththi and

the money receipts / vouchers bearing the

signatures of the petitioners - defendants on the

contrary, they should have readily agreed to a

proposal that those documents are required to be

examined by hand writing expert from Government

authority i.e.'FSL'. If opinion of the expert is

in favour of the Respondent No.1-plaintiff it can

be used as a corroborative evidence in support of

the case. Therefore, it is in the interest of the

Respondent No.1-plaintiff also, the said

documents needs to be examined by the hand

writing expert from 'FSL'. If the opinion of

independent hand writing expert goes against the

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

petitioners- defendants their confident assertion

about documents bearing no signatures of theirs

would fall to the ground and he may loose the

case against him.

12. Other reason assigned by the learned

Judge to reject the application sending it for

scientific investigation is that the documents

which are claimed to have been signed in the year

1995 at present in the year 2022, the hand

writings may defer which is very natural. The

petitioners- defendants have been condemned on

the ground that they are trying to get new

evidence in their favour and protract the trial.

The said reasoning appears to be incorrect. The

learned Judge is pre-empting that hand writing

expert would be unable to opine in absence of

such hand writings of the year 1995 for the

purpose of comparison, such assumption is

uncalled for. If hand writing expert is unable to

examine the disputed documents for want of other

relevant material i.e. hand writing of the year

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

nearby, he may refuse to scientifically

investigate those documents or opine over the

same.

13. The arguments of the learned advocate

for Respondent No.1- plaintiff with regard to non

filing of FIR/ complaint if at all petitioners -

defendants claim that disputed documents did not

bear their signatures and therefore, at this

belated stage, no such opinion or scientific

investigation is to be dealt with for rejection.

Mere non filing of FIR/ complaint when in the

year 1995, a suit based on forged document

appears to be filed, will not conclude that it

bears the genuine signatures of the petitioners-

defendants. For variety of reasons, one may not

file any complaint despite it is found that

signatures stated to be theirs is not put by

them. At any rate, allegations of mere forgery

being non-cognizable offence one would be

required to file a private complaint and undergo

tedious procedure of leading evidence, remaining

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

present and participating in the proceedings all

throughout. That may be the reason for not filing

the FIR though dispute is raised about

genuineness of the same. However, there is no

rule that in absence of filing of FIR for a

disputed documents being forged one, a party is

debarred from praying for scientific

investigation of a documents through Government

hand writing expert from the 'FSL', though it may

be a most relevant factor if it has been opted

for at the fag end of trial with a view to

protract it, Court can certainly reject the said

prayer. However, not only the petitioners -

defendants have in the written statement disputed

the signatures over documents Exh.104, 105 and

106, cross examined the plaintiff and his

witnesses on that line and their evidence is yet

to be led. Of course, evidence of plaintiff is

over. However, if scientific investigation of a

documents in question can be concluded within a

stipulated time that might be ordered by the

Court and in the meanwhile, petitioners -

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

defendants be directed to lead their evidence in

support of their case, ends of justice would be

met to have that option instead of denying them a

valuable right to examine witness in their

support whose depositions before the Court may

not be questioned to be biased one in favour of

any of the parties. If petitioners - defendants

alone would be condemned for delaying the

proceedings, course of action as above may be

denied to them. However, as recorded in the

impugned order itself, even Respondent No.1 -

plaintiff is also equally condemned for the said

delay. Therefore, it does not lie in the mouth of

Respondent No.1- plaintiff to argue that at a

belated stage request is made and therefore, on

that ground alone, it should be refused.

14. The case of Mahalaxmi Construction Co.

(Supra) relied on by the learned advocate for the

Respondent No.1 - plaintiff is not helpful to her

as in that case no such dispute was raised at the

time of filing written statement. Not only the

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

person whose signature is claimed to be forged

one has not given his evidence, he had not

disputed the same by his own evidence. At the

same time, the witness on behalf of the plaintiff

was also not cross examined to raise such dispute

or even suggestion was not put to him and in that

set of circumstances, that too, while exercising

jurisdiction under Article 227 of the

Constitution of India, the Court did not find it

proper to interfere with the same. Therefore,

that decision cannot be pressed into service in

support of the submission of the learned advocate

for the Respondent No.1-plaintiff.

15. Decision relied on by the learned

advocate for the Respondent No.1 - plaintiff in

the case of BHAGWANBHAI BHIMABHAI PATEL (Supra)

is also not on the point whether scientific

investigation can be ordered invoking provisions

under Order XXVI Rule 10A of the 'Code' or not.

It was determined on its own facts, that too, for

the purpose of local investigation under Rule 9

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

of Order XXVI of the 'Code'. In a common parlance

known to be a Court Commissioner for the purpose

of site inspection. As such, there is no point of

distinction as suggested by the learned advocate

for the Respondent No.1-plaintiff that commission

can be appointed for making local investigation

on an application by a party when it is found to

be requisite or proper for the purpose of

elucidating any matter in dispute, or

ascertaining the market value of any property,

etc. as stated therein. Whereas power of

appointing the commission for scientific

investigation under Rule 10A of Order XXVI can be

ordered only when Court wants it for determining

the case. The language in both the Rules i.e.

Rule 9 and Rule 10A of Order XXVI of the 'Code'

are different and distinct and has nothing to do

with each other. Under Rule 10A of Order XXVI of

the 'Code' when a suit involves any scientific

investigation which cannot, in the opinion of the

court, be conveniently conducted before the

Court, the Court can order for the same.

   C/SCA/10611/2022                                       JUDGMENT DATED: 23/06/2022




16.           In       the      present              case,      if         at        all

Government hand writing expert wants inspection

of the original documents and requires any other

material for examining for the purpose of

opinion, he may be summoned to the Court and

permitted the same and thereafter, he may be

asked to render his opinion in case of need,

subsequently he can be examined before the Court.

Another course of action would be to send those

original documents which are disputed along with

necessary other material that may be asked for by

the expert for the purpose of opinion. However,

it is for the Court to determine what course of

action is to be adopted.

17. Considering the aforesaid decisions

referred to and relied on by the learned advocate

for the respondent No.1-plaintiff and a decision

rendered in the case of Rama Avatar Soni V/s.

Mahanta Laxmidhar Das and others reported in

(2019) 11 SCC 415 more particularly para-7

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

thereof wherein the Supreme Court ruled that "If

the scientific investigation of the document in

question facilitates ascertaining of truth, in

the interest of justice, naturally it has to be

ordered". Thus, whenever there is a quest for

truth with a view to see that truth may surface

on record any course of action required, though

within the frameworks of law, has to be adopted.

18. Therefore, in my opinion, the documents

as Exh.104, 105 and 106 being Banachiththi and

vouchers / money receipts, signatures over the

same is disputed by the petitioners - defendants

since the day of filing the written statement,

while cross examining the plaintiff and his

witnesses, the genuineness of the same is

challenged. The power under Rule 10A of Order

XXVI of the 'Code' is required to be exercised

either sending those documents to the Government

hand writing expert at 'FSL', Ahmedabad or that

expert may be requested to have the inspection

from the original documents before the Court and

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

any other material required may be provided to

him by keeping all the parties present there and

there for examination of the same for the purpose

of opinion over the disputed signature of the

said documents. Before the visit of 'FSL'

officer, all the necessary details required by

him may be ascertained within a very short span

and be kept ready by the parties that may be

directed by the Court, that too, at the cost of

the petitioners - defendants. If trial Court

feels that sending of original documents to the

'FSL' expert may further delay the proceedings,

he may be requested to have the inspection of the

original before the Court and any other documents

required from anyone be intimated to the Court by

expert deputed by 'FSL' on a given date and all

the expenses for the said exercise and the

examination shall be borne by the petitioners-

defendants.

19. Till that exercise being done, the

petitioners - defendants shall proceed with the

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

trial, examine their witnesses including private

hand writing expert whose opinion they have

obtained if they wish and may not unnecessarily

further delay the same. It is expected that

office of the 'FSL' cooperates for the said

exercise to be carried out within such reasonable

time determined by the Court concerned.

20. In view thereof, the impugned order

passed by learned Principal Senior Civil Judge,

Sanand below Exh.144, dated 17.03.2022 and an

order below Exh.154, dated 22.04.2022 both are

quashed and set aside. This petition is allowed

to the aforesaid terms.

21. Learned advocate for the respondent

No.1-Plaintiff prays for stay of this order. It

appears that the finding recorded by the trial

Court in the impugned order that both the parties

have delayed the proceedings and they were not

ready to proceed with the case as and when matter

kept for hearing. As such, if opinion is obtained

C/SCA/10611/2022 JUDGMENT DATED: 23/06/2022

and it goes in favour of the Respondent No.1-

plaintiff and against the petitioners-defendants

it can be used as a corroborative evidence to the

case of the plaintiff having strong reasons to

prefer the said opinion over the opinion of an

expert as FSL expert being independent agency

having no interest in either party. As such, I

would have refused the said prayer as it would

further delay the proceedings but it appears that

even Respondent No.1-plaintiff is also not

interested in proceeding further with the suit or

else, he would not have asked for stay of this

order. Despite that, Respondent NO.1-plaintiff

desires to challenge this order, I feel that this

order be stayed for a period of 4 (four) weeks

from today.

22. Since this order is stayed, I deem it

fit to stay further proceedings of the suit for a

period of 4 (four) weeks hereof.

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