Gujarat High Court
Meenaben Rajendrasinh Parmar vs Shreemand Rajchandra Adhyatmik ... on 24 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9122 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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MEENABEN RAJENDRASINH PARMAR & ORS.
Versus
SHREEMAND RAJCHANDRA ADHYATMIK SATSANG SADHNA KENDRA &
ORS.
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Appearance:
MR JAL UNWALA, SR. ADVOCATE WITH
MS TEJAL A VASHI(2704) for the Petitioner(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/07/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr. Aditya
Mehta waives service of notice of rule on behalf of
respondent No.1 and learned advocate Mr. Anuj Trivedi
waives service of notice of rule on behalf of respondent No 4
& 5.
2. The presence of other respondents are not required.
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3. The present writ application is filed under Article 227 of
the Constitution of India seeking following relief :-
"A. This Honourable Court may be pleased to quash and set aside
theimpugned report submitted by the PW-3 vide Exhibit-299 to 305
further be pleased to quash and set aside the impugned order passed
by the Ld. 5th Additional Chief Judicial Magistrate/Principal Senior Civil
Judge, Dist: Valsad, below Exhibit 294 in the RCS no.43 of 2010
whereby, the Ld. Trial court has been pleased to permitted the witness
to examine the disputed signatures on the original POA with admitted
signatures (which the petitioners are disputing that the same are
admitted signatures) in the court, in the witness box, during the
deposition of witness, which is at Annexure-A;
B. This Honourable Court may be pleased to quash and set aside
the impugned deposition recorded by the Ld. Trial Court below Exh-
294 of the witness, which is at Annexure-A.
C. Pending admission, hearing and final disposal of this petition,
be pleased to stay further proceedings of Special Civil Suit no. 43 of
2010 pending with Principal Senior Civil Judge, Valsad;
D. Grant such other and further relief/s as may be deemed fit and
proper in the interest of justice."
4. The parties will be referred as far as possible as per
their original position in the suit.
5. The petitioners are original defendants No. 2.1 to 2.3
(hereinafter referred to defendant No.2), whereas
respondents No. 1, 4 & 5 are original plaintiffs (hereinafter
referred to plaintiff)and respondents No. 2.1 to 2.3 are
original defendants No. 1.1 to 1.3 (hereinafter referred to
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defendant No.1) and respondents No. 3.1 to 3.4 are original
defendants No. 3.1. to 3.4 (hereinafter referred to defendant
No.3)
Short facts of the case.
6.0 The plaintiff No. 1 executed agreement to sell
with original defendant No.1 on 14.12.1999 which was
registered with Sub Registrar, Valsad, in relation to suit
property in question.
6.1 It is the case of the plaintiff No.1 that at the time
of execution of agreement to sell earnest money of Rs.
25,00,000/- out of total sale consideration of Rs. 2 crores and
50 lakh was paid to defendant No.1 on 18.03.2000, through
cheque another Rs. 2 crores have been paid to defendant
No.1 and balance sale consideration of Rs. 25 lakhs paid on
31.08.2008 through demand draft issued in favour of
defendant No.1 and thereby entire sale consideration was
paid to defendant No.1.
6.2 It is further case of the plaintiff that pursuant to
execution of the aforesaid agreement to sell on 14.12.1999,
the plaintiff No.1 put in possession by defendant No.1. It
further appears that defendant No.3 alleged to be power of
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attorney holder of defendant No.1 executed registered sale
deed on 11.05.2010 in favour of defendant No.2, thereby
sold the suit land. The plaintiff No.1 having came to know
about such execution of sale-deed in favour of defendant
No.2 by defendant No.3, filed the suit in question on
21.05.2010 seeking declaration and injunction as prayed in
the suit.
6.3 Later on, pending suit, through power of attorney
holder of defendant No.1 and in knowledge of plaintiff No.1
getting sale consideration registered sale deed was
executed in favour of plaintiffs No.2 & 3 on 10.06.2015 which
was registered on 07.08.2015 with Sub Registrar,
Dharampur.
6.4 Thus, plaintiffs No.2 & 3 having purchased the suit
property, have been arrayed as a co-plaintiff in the suit and
sought necessary declaration, thereby suit got amended.
6.5 It further appears that after filing of the suit,
hand-writing expert opinion obtained by the plaintiff No.1 on
18.06.2010 which was submitted at marked 20/1 in the suit
on 28.06.2010. To prove such report, plaintiffs No.2 & 3 filed
an application below Exh. 266 under Order 16 of CPC for
issuance of PW-3 summon which came to be allowed by the
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trial Court vide its order dated 17.12.2022, thereby issued
PW-3 summon upon depositing of Rs. 5,000/- as expenses of
PW-3.
6.6 It appears that such amount was deposited in
January, 2023 thereby, witness summon was issued. For any
reason, witness i.e. hand-writing expert namely Hiral Anand
Mehta appeared before the trial Court on 07.05.2025 (herein
after referred as PW-3), whose oral examination-in-chief
recorded below Exh. 294 as PW-3 in the suit and during the
course of her examination, PW-3 deposed that she has
prepared the report as per xerox copy of the disputed power
of attorney and if allowed to see the original copy of power
of attorney, from that basis also she can submit a report.
6.7 So, at that stage of recording of oral evidence of
PW-3, plaintiffs No.2 & 3 requested the trial Court to allow
PW-3 to see original power of attorney now available on
record at mark 33/1 and can be compared with other
documents produced at D-7, 8, 9 and 20. The trial Court has
exceeded to such request made by the plaintiffs No.2 & 3,
thereby permitted PW-3 (hand-writing expert) to see original
documents i.e. mark 33/1. It is to be noted here that detailed
order has been passed by the trial Court recording objection
of petitioner- defendant No.2 allowing PW-3-expert to see
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the original documents for comparison of signature despite
raising an objection by defendant No.2, that such procedure
is unknown to law and not envisaged under Order 26 rule
10A of CPC. Nonetheless, defendant No.2 at relevant point
of time, not questioned the legality and validity of the order
passed by trial Court on 07.05.2025.
6.8 Be that as it may, on the basis of such inspection,
PW-3 - hand-writing expert has submitted her another
opinion, which was prepared on 20.05.2025 produced it
before the trial Court on 04.06.2025 and eventually such
reports i.e. mark 20/1 and 298/1 are given exhibit by the trial
Court on 04.06.2025 itself.
6.9 The defendant No.1 has cross examined PW-3 and
when it came for cross examination of defendant No.2 on
23.06.2025, an adjournment sought for before the trial Court
to approach this Court. Hence, this writ application.
Submission of petitioner-defendant No.2
7.0 Learned senior advocate Mr. Jal Unwala with
learned advocate Ms. Tejal Vashi for the petitioners would
submit that the impugned order dated 07.05.2025 and so
also order dated 04.06.2025 passed by the trial Court below
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Exh. 294 in the suit is ex-facie, illegal, erroneous, arbitrary
and contrary to the provisions of law, requires to be
interfered by this Court in its supervisory jurisdiction. He
would further submit that the trial Court has exceeded its
jurisdiction so vested in it, thereby allowed expert - PW-3 to
examine original documents available on record of the suit,
when such PW-3 was in witness box. It is further submitted
that such procedure is not envisaged in law, thereby, the trial
Court has committed serious procedural illegality resulted
into the miscarriage of justice.
7.1 Learned senior advocate Mr. Unwala would
further submit that there is an express provision under
Order 26 rule 10A of CPC prescribed whereby, the Court is
required to issue a Commission to such person at it think fit,
thereby can receive in scientific opinion on disputed
documents. So, a general power under Section 151 of CPC
could not have been invoked by trial Court. He would further
submit that the trial Court has committed illegality by
allowing hand-writing expert to see documents available on
record and allow to submit her opinion, it is not sustainable
in law. It is submitted that when hand-writing expert came
for recording of her evidence in support of her first opinion
dated 18.06.2010, in absence of any supporting tools, such
hand-writing expert would not be in a position to submit any
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opinion even though allowed to inspect original documents.
7.2 Learned senior advocate Mr. Unwala would
further submit that even otherwise first report dated
18.06.2010 and also second one on 20.05.2010 are based
upon the xerox documents and as per settled legal position
of law, such reports issued by the hand-writing expert on the
basis of xerox cannot be received in evidence, thereby can
not be exhibited. It is submitted that the trial Court has
committed serious error of law by giving such report to be
received in evidence by giving them exhibit and to that
extent also order passed by the trial Court is contrary to law.
7.3 Learned senior advocate Mr. Unwala would submit
that merely because the petitioners have not questioned the
order dated 07.05.2025 passed below Exh. 294 in the suit
was not dis-entitled them not to question it at this stage and
as such there was no waiver on their part not to question it,
having so objected before the trial Court. It is submitted that
merely because the defendant No.2 having not questioned
such order immediately by filing the writ application would
not ipso-facto dis-entitled defendant No.2 to get relief from
this Court, if order passed by the trial Court is without
jurisdiction.
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7.4 To buttress his argument, learned Learned senior
advocate Mr. Unwala would refer and rely upon the decision
of the Andhra Pradesh High Court in the case of Bheri
Nageswara Rao Vs. Mavuri Veerabhadra Rao and others
reported in AIR 2006 AP 314.
7.5 Making the above, submission, learned Learned
senior advocate Mr. Unwala would request this Court to
allow the present writ application.
Submission of the respondents- original plaintiffs
8.0 Learned senior advocate Mr. R.S. Sanjanwala with
learned advocate Mr. Anuj Trivedi for the respondents No. 4
& 5 would submit that when the trial Court has allowed
expert to see the original documents available on record and
having not questioned such order for quite long time as
same was passed on 07.05.2025 and the present writ
application is filed on 30.06.2025, now the petitioners can
not be allowed to question the legality and validity of such
order. He would further submit that in such type of
procedural order, if defendant No.2 was really aggrieved by
the order dated 07.05.2025 passed below Exh. 294 in the
suit, requires to be questioned at the earliest. It is submitted
that defendant No.2 could have have easily questioned it by
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challenging it before this Court by filing appropriate writ
application and having not done so, when defendant No.2
has allowed hand-writing expert not only see and inspect the
original document comparing signature with disputed
signatures of power of attorney holder of defendant No.1
but also allowed to submit her second report dated
20.05.2025 on record on 04.06.2025, this Court should not
accept the submission of defendant no.2 that any error
committed is by the trial Court.
8.1 Learned senior advocate Mr. Sanjanwala would
further submit that when an expert is called upon by a party
before the trial Court to support an opinion already on
record and once such expert admits her signature on the
report, the trial Court is required to exhibit the said
document. It is further submit that the legality and validity of
the contents of such report can be gone into by the trial
Court at the time of final adjudication of suit and as such
defendant No.2 can very well cross examined expert in all
respect.
8.2 Learned senior advocate Mr. Sanjanwala would
further submit that the procedure so adopted by the trial
Court is neither prohibited under law nor unknown to law,
inasmuch as the trial Court has all power to allow an hand-
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writing expert to see original documents and to submit her
report. It is submitted that the provisions of Order 26 rule
10A of CPC would not ipso-facto apply in the present case,
inasmuch the expert opinion is already submitted by the
plaintiffs on their own, thereby, called upon such hand-
writing expert to prove contents of report by examined as
PW-3. He would submit that judgement relied upon by
learned senior advocate Mr. Unwala in support of his
argument is not applicable to the facts of the present case.
8.3 Learned senior advocate Mr. Sanjanwala would
further submit that no prejudice would be caused to the
defendant No.2 if such reports are exhibited by the trial
Court, inasmuch as the expert - PW-3 is still in witness box as
cross examination of PW-3 by defendant No.2 is not begin
and so, the contents of reports and its veracity and all other
aspects can be questioned by defendant No.2 by cross
examined PW-3.
8.4 Lastly, learned senior advocate Mr. Sanjanwala
would request this Court not to entertain the present writ
application filed under Article 227 of the Constitution of
India as this Court would have limited scope to interfere with
impugned order and as such merely second view would be
possible which according him none, is not a ground to
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interfere with impugned order.
8.5 Making the above submissions no other
submissions have been made by any of the learned
advocates for the respective parties.
Point for determination
(i) Whether in the facts and circumstances of the
present case, can the defendant No.2 questioned the
order dated 07.05.2025 passed by the trial Court
whereby allowed hand-writing expert who is in witness
box to inspect the original documents available on
record of the suit for comparison with disputed signature
available on record, especially having allowed expert to
see the original document on record?
(ii) Whether in the facts and circumstances of the
present case, any gross error or jurisdictional error
committed by the trial Court while exhibiting the
documents referred by hand-writing expert (PW-3) in her
examination-in-chief filed below Exh. 294 in the suit ?
Analysis
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9. The facts which are narrated herein above are not in
dispute. The short controversy arise in the matter that when
the trial Court has allowed the hand-writing expert - PW-3 to
see original document i.e. power of attorney of defendant
No.2 produced at marked 33/1 in the suit and compared with
disputed signature of defendant No.1 available at D-7, 8, 9 &
20 thereby, order to submit her report. The trial Court has
permitted hand-writing expert to see the aforesaid
documents by rejecting objection of defendant No.2.
9.1 As such, if defendant No.2 was so feeling
aggrieved by order dated 07.05.2025 passed by the trial
Court below Exh. 294 in the suit, they could have easily
challenged it before this Court without waiting for expert to
submit his report, for reason best known to them, they have
chosen not to do it until such second report came to be filed
by PW-3 on 04.06.2025.
9.2 So far as the submission of learned advocate Mr.
Unwala that mere delay in challenging the order dated
07.05.2025 passed by the trial Court below Exh. 294 in the
suit would not be dis-entitled to defendant No.2 to question
it is concerned, ordinarily, this Court would not mind that by
few months late the party to the suit challenge the order
passed by the trial Court before this Court but in the case
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like the present one and nature of impugned order, when
defendant No.2 allowed hand-writing expert not only to
inspect and see the original documents but also allowed to
submit her report dated 20.05.2025 on the record of suit on
04.06.2025, later on, defendant No.2 can not allow to
question such order passed by the trial Court. The act of
defendant No.2 not questioning the order dated 07.05.2025
passed by the trial Court at that point of time, would surely
dis-entitle defendant No.2 to question it in the present writ
application when it is fully implemented.
9.3 Prima-facie, this Court is of the view that
defendant No.2 waited for quite long time till hand-writing
expert submitted her second report dated 20.05.2025 on
record of the suit on 04.06.2025, thereby, defendant No.2
having appears to have taken calculated risk and might have
though that if report comes in favour of defendant No.2,
they have no reason to question it, but having found it
inconvenient to defendant No.2 after allowing partial cross
examination of such hand-writing expert - PW-3 by
defendant No.1 on 23.06.2025, at that stage, defendant No.2
have questioned not only order dated 07.05.2025 passed by
the trial Court but so also challenged the order exhibiting
such reports by way of the present writ application, having
so filed on 30.06.2025.
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10. It is also required to be noted that after the
passing of the order dated 07.05.2025, defendant No.2 could
have requested the trial Court not to allow the expert to
submit her report, if they were seriously considering to
approach this Court to challenge the said order. However, in
fact, such a step was taken only on 30.06.2025, when
defendant No.2 cross-examined the handwriting expert PW-
11. Furthermore, trial Court has correctly turn down the
objections so raised by defendant No.1 while allowing PW-3
to see the original document. It is correctly observed that
when report of PW-3 is already submitted by plaintiff,
question of issuance of any commission under Order 26 rule
10A of CPC would not arise and as such, PW-3 in her
examination would deposed that if she would allow to see
the original power of attorney, she can inspect it and submit
her report. So, in light of said facts, the trial Court has
exercised its discretion thereby, allowed expert to
see/inspect the original power of attorney of defendant
No.1 on record of the suit, it can not by any stretch of
imagination, would amount to exceeding its jurisdiction
vested in it.
12. According to me, it would be positive exercised of
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power so vested with civil court under section 151 of CPC
thereby, if exercised, this Court is loath to interfere with it
unless it cause so much prejudice to the interest of
defendant No.2 that it would be irreversible situation. No
such case made out by defendant No.2. Moreover, it has
been correctly observed by trial Court in its impugned order
that it would be open for the defendant No.2 to get verify
signature of defendant No.1 on her power of attorney by
following appropriate procedure set in law. Thus, it is always
open for the defendant No.2 to examine any expert to
support their defence.
13. In the light of the aforesaid peculiar facts and
circumstances of the present case, the act of defendant No.2
would surely suggest only one fact that after passing of the
order by the trial Court on 07.05.2025, the defendant No.2
has given up their challenge against the order dated
07.05.2025 having not questioned it immediately thereafter,
by filing the writ application before this Court. As such
considering the principle of waiver and estoppel, if applied
to the facts of the present case, now defendant No.2 can not
question the order dated 07.05.2025 which is already
implemented before the trial Court.
14. So far as the second limb of the argument
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advanced by learned senior advocate Mr. Unwala for the
petitioners that the documents to be produced along with
the handwriting expert reports (previous and current
reports) ought not to have been exhibited -- is concerned,
once PW-3 - handwriting expert, in her oral evidence,
admitted her signatures on both reports which are original
reports, the trial Court was well within its rights to exhibit
those documents, as they are required to be received in
evidence. When the author of document is examined who
confirm the document and her signature thereon, trial Court
requires to exhibit it unless prohibited in law. None of such
provision to that effect was brought to the notice of this
Court.
15. Of-course, its legality and validity of such reports/
contents of such reports would be subject matter of cross
examination by defendants and to be adjudged by the trial
Court at the end of the trial. Nonetheless, when author of
document admit her signature as well as original document
is available on record of suit, as per provision of Evidence
Act, the trial Court is required to exhibit of such documents.
As such, there is no illegality or any irregularity committed by
the trial Court when it passed an order of exhibiting such
reports/documents.
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16. There is also an objection raised by the learned senior
advocate Mr. Unwala that on the basis of xerox documents
the hand-writing expert - PW-3 has formed an opinion which
is not permissible in law and such reports are required to out
rightly rejected by the trial Court. As such, such submission is
fallacious one as report of hand writing expert is an expert
opinion available on record having submitted in original and
author of such report is examined as PW-3 then in such
circumstances, as stated herein above, her report requires to
be received in evidence thereby, requires to be exhibited.
17. The decision referred and relied upon by the learned
senior advocate Mr. Unwala in the case of Bheri Nageswara
Rao (supra), the facts of the aforesaid decision would not be
applicable to the facts of the present case. Inasmuch as in
that particular case, the trial Court at fag end of trial of suit
sent xerox documents for hand-writing expert opinion which
has been questioned by opposite party before the High
Court wherein in the facts and circumstances of the case, the
Andhra Pradesh High Court opined that in absence of
sending original documents, hand-writing expert can not
submit his report and in the light of such observation, the
order of the trial Court has been interfered with. Whereas, in
the case on hand, PW-3 - hand-writing expert has already
submitted her first and second opinion may be on the basis
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of xerox documents and second one after seeing original
document i.e. power of attorney of defendant No.1, but
when such reports are available on record of the trial Court,
which is an original one and PW-3 i.e. hand-writing expert
confirmed her signature on such reports, such documents
can not remain on record of suit without giving exhibit. Even
otherwise, as per settled legal position of law, all original
documents which are available on record of the suit, unless
barred by any law requires to be exhibited. [See : Bipin
Shantilal Panchal Vs. State of Gujarat reported in 2001 (3)
SCC 1 ]
18. Thus, I am not at all impressed with any of the
submissions canvassed by the learned senior advocate Mr.
Unwala for the petitioners, more particularly when there is
no serious error of law and or jurisdictional error committed
by the trial Court while passing the order dated 07.05.2025
and so also exhibiting documents available on record of suit.
I am in complete agreement with the impugned order passed
by the trial Court. This Court would not like to interfere with
such order passed by the trial Court while exercising its
jurisdiction under Article 227 of the Constitution of India,
which is otherwise to be exercised sparingly [See : Sameer
Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal,
reported in 2013 (9) SCC 374 and Garment Craft v. Prakash
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Chand Goel, reported in (2022) 4 SCC 181]
Conclusion
19. The upshot of the aforesaid observations,
discussions and reasons, it would lead to one conclusion that
there is no illegality, irregularity or jurisdictional error
committed by the trial Court while passing impugned order
thereby allowing hand-writing expert (PW-3) to see original
document i.e. original power of attorney of defendant No.1
and compare with disputed signature available on other
documents on record and more when defendant No.3 having
not questioned impugned order dated 07.05.2025 at given
point of time. Consequently, the impugned order dated
04.06.2025 thereby ordered to exhibit both reports issued by
hand-writing expert referred/ deposed in her oral evidence is
also not bad in law.
20. In view of aforesaid conclusion, I do not find any
merit in the present writ application, it lacks merits, requires
to be rejected, which is hereby rejected. Rule is discharged.
No order as to costs. The trial Court shall proceed with the
suit as expeditiously as possible.
Sd/
(MAULIK J.SHELAT,J)
SALIM/
