Gujarat High Court
Tejrav Kishan Inamdar vs Shardadevi Sabhajit Singh on 29 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18461 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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TEJRAV KISHAN INAMDAR
Versus
SHARDADEVI SABHAJIT SINGH & ANR.
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Appearance:
MR AMIT N PATEL(2749) for the Petitioner(s) No. 1
MR N R DESAI(6504) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 29/07/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.N.R.Desai
waives service of Rule on behalf of respondent nos. 1 and 2.
2. Heard Learned advocate Mr. Amit N. Patel for the
petitioner and Learned advocate Mr. N.R. Desai for the
respondent nos. 1 and 2.
3. The present writ application has been filed under Article
227 of the Constitution of India, seeking the following relief:-
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"(a) Admit and allow this petition,
(b) Issue appropriate writ, order or direction to quash and set aside
impugned order dated 09/12/2021 passed by the Ld. 13th Addl.
Senior Civil Judge, Surat, below Exh. 54 in Regular Civil Suit no.
597 of 2016 pending before the Ld. 13th Addl. Senior Civil Judge,
Surat and further be please to allow the application filed vide Exh.
54 in Regular Civil Suit no. 597 of 2016 pending before the Ld. 13th
Addl. Senior Civil Judge, Surat,
(c) Pending admission hearing and final disposal of this petition,
Hon'ble Court be pleased to stay implementation, execution of the
impugned order dated 09/12/2021passed by the Ld. 13th Addl.
Senior Civil Judge, Surat, below Exh. 54 in Regular Civil Suit no.
597 of 2016,
(d) Pending admission hearing and final disposal of this petition,
Hon'ble Court be pleased to stay the further proceedings of
Regular Civil Suit no. 597of 2016 pending before the Ld. 13th Addl.
Senior Civil Judge, Surat.
(e) To grant such other and further relief, which this Hon'ble Court
deems fit, just and proper in the interest of justice.
(f) To award cost of this petition."
4. BRIEF FACTS OF THE CASE
4.1. The petitioner herein is the original plaintiff, whereas
the respondents herein are the original defendants of Regular
Civil Suit No.597 of 2016, pending before the Senior Civil
Judge, Surat. The suit was filed seeking a declaration and
permanent injunction.
4.2. It is specific case of the plaintiff that the sale
agreement dated 05.06.2002, i.e., the possession receipt sought
to be relied upon by the defendants claiming ownership and
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possession of the suit property, is got-up one and, in fact, the
plaintiff has never signed such a possession receipt. In support
of his claim, the plaintiff has filed private handwriting expert's
opinion, which was discarded by the Trial Court while
adjudicating the injunction application filed below Exh. 5 in
the suit, solely on the ground that it was issued by private
handwriting expert and cannot be believed.
4.3. So, the plaintiff appears to have filed the impugned
application below Exh. 54, whereby sought a prayer that the
original possession receipt produced below Exh. 47 be sent to
any government Handwriting Expert, whereby, the signature of
the plaintiff can be ascertained/verified.
4.4. The defendants appear to have objected to the
impugned application, contending, inter alia, that the plaintiff
cannot fall back on the evidence produced by the defendants
and, as such, is required to lead his own evidence to prove his
case.
5. After hearing the parties concerned, the Trial Court, vide
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its impugned order dated 09.12.2021, rejected the impugned
application, against which the present writ application came to
be filed by the original plaintiff.
6. SUBMISSIONS OF THE PETITIONER / PLAINTIFF
6.1. Learned advocate Mr. Patel would submit that the
Trial Court has committed a serious error of law and so also,
jurisdictional error by not sending the possession receipt to
Government Handwriting Expert as prayed for in the impugned
application.
6.2. Learned advocate Mr. Patel would further submit that
no reasons were assigned by the Trial Court while rejecting the
impugned application, inasmuch as it has only been observed
that the plaintiff is required to prove his case by leading his
own evidence and cannot fall back upon the weakness of the
defendants.
6.3. Learned advocate Mr. Patel would further submit that
when the document in question is disputed and the relief of
declaration questioning such disputed document is the main
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controversy involved in the suit, the prayer made in the
impugned application requires to be accepted by the Trial
Court.
6.4. Learned advocate Mr. Patel would further submit that,
as such, the plaintiff had already secured private handwriting
expert report, who confirmed that the signature on the
possession receipt is not that of the plaintiff, but the same was
not believed by the Trial Court, it being a private one, and
then the need arose to file the impugned application.
6.5. Learned advocate Mr. Patel would further submit that
no prejudice would be caused to the defendants if such an
application could have been allowed by the Trial Court,
inasmuch as by getting report from Government Handwriting
Expert, an opportunity will be available to both sides to prove
their respective cases on their own merits.
6.6. To buttress his argument, learned advocate Mr. Patel
would rely upon the following decisions:-
(i) Deepakkumar Jamnadas Prajapati Versus Binaben
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Shankarbhai Desai reported in 2025 GUJ HC 18745.
6.7. Making the above submissions, Learned advocate Mr.
Patel would request this Court to allow the present writ
application.
7. SUBMISSION OF RESPONDENTS/DEFENDANTS
7.1. Per contra, learned advocate Mr. Desai would submit
that, as such, there is no gross error of law committed by the
Trial Court while rejecting the impugned application, and this
Court should not exercise its power under Article 227 of the
Constitution of India to interfere with the order.
7.2. Learned advocate Mr. Desai would further submit that
the impugned possession receipt was submitted by the
defendants, which was accepted at Exh. 47 in the suit, and as
such, the plaintiff cannot fall back upon such evidence to
prove his case. It is submitted that the plaintiff is required to
lead appropriate evidence to prove his case to obtain the relief
as prayed for in the suit.
7.3. Learned advocate Mr. Desai would further submit that
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the Trial Court has correctly observed in the impugned order
that the plaintiff cannot fall back upon the weakness of the
defendants and the evidence led by them. It is further
submitted that the burden is always upon the plaintiff to prove
the allegations made in the plaint and, thereby, there is no
requirement to send the possession receipt to any Government
Handwriting Expert to prove the signature of the plaintiff.
7.4. Making the above submissions, Learned advocate Mr.
Desai would request this Court to reject the present writ
application.
8. No other and further submissions were made.
9. POINT FOR DETERMINATION
9.1. The short controversy involved is whether, in the facts
and circumstances of the case, there is any gross error of law
and/or any jurisdictional error committed by the Trial Court
while rejecting the impugned application filed below Exh. 54
by the plaintiff in Regular Civil Suit No. 597 of 2016.
10. ANALYSIS
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11. The facts, hereinabove, are not in dispute. It remains
undisputed that the plaintiff has already disputed the
possession receipt, inasmuch as the signature of the plaintiff
affixed on such possession receipt from inception, and as such,
the suit came to be filed seeking declaration to that effect. The
plaintiff has also secured private handwriting expert's opinion,
which appears to be in his favour, but the same was not
accepted by the Trial Court while adjudicating the injunction
application filed below Exh. 5 in the suit, only on the ground
that it is a private opinion.
12. When such is the view taken by the Trial Court at the
interlocutory stage of the suit, it would be incumbent upon the
plaintiff to request the Trial Court to send the possession
receipt to Government Handwriting Expert, whereby it can be
certified/opined by such Government Handwriting Expert as to
whether the signature affixed on the disputed possession
receipt is that of the plaintiff or not.
13. Prima facie, after going through the impugned order, it
appears that there is no reason assigned by the Trial Court
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while rejecting the impugned application. As such, it is a non-
speaking order and requires to be quashed and set aside on
this ground alone.
14. Nonetheless, this Court would not like to remand the
matter back to the Trial Court for re-hearing on the impugned
application, as the suit is of the year 2016 and it appears that
it has reached the stage of recording the evidence of the
plaintiff.
15. So, having heard Learned advocates appearing for the
respective parties, it would be appropriate for this Court to
examine the impugned application itself. Having so observed
hereinabove, the dispute in the suit is regarding the possession
receipt/sale agreement dated 05.06.2002, alleged to have been
executed by the plaintiff in favour of the defendants. When the
plaintiff has disputed the signature on the aforesaid document
since inception, which is already produced at Exh. 47 in the
suit, and more particularly, the Trial Court has not accepted
the opinion of the private Handwriting Expert secured by the
plaintiff, it could not have rejected the impugned application.
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On one hand, the Trial Court has observed that the plaintiff
will have to prove his case on its own merits by leading
appropriate evidence, and on the other hand, the evidence
which has been brought by the plaintiff, i.e., the opinion of
the private Handwriting Expert, is not accepted.
16. At this stage, it would be apt to refer to and rely upon
the decision in the case of Deepakkumar (supra), wherein this
Court after referring several decisions held thus:-
[8] Thus, in view of the aforesaid facts and circumstances of the
case, when the defendant has claimed that the signature on the
agreement to sell as well as the possession receipt is not of her
mother and has also disputed her signature, it was incumbent upon
the trial court to accept the impugned application filed by the
plaintiff. The trial court could have sent both these documents
Exhibits 28 and 29 for the opinion of a government handwriting
expert. To bring the truth on record, such an exercise was required
to be undertaken by the trial court, which was not done.
8.1 According to me, the trial court has failed to exercise the
jurisdiction so vested in it and committed a gross error of law by not
allowing the impugned application of the plaintiff.
8.2 At this stage, it is apt to refer and rely upon the decisions of the
Honourable Apex Court as well as this Court on issue germane in
the present writ application.
(1) In case of Rama Avatar Soni (supra), the Honourabel Apex
Court has observed as under;
"8. .If the scientific investigation of the document
in question facilitates the ascertaining of truth, in
the interest of justice, naturally it has to be
ordered. Having regard to the issue raised in the
suit, the District Judge was right in allowing the
application to send the Will in question dated
12.03.1989 to hand-writing expert."
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(2) Vide order dated 23.06.2022 in SCA No.10611 of 2022, the Co
ordinate Bench of this Court observed as under;
"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, 2019 11 SCC 415 more
particularly para-7 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 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
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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."
(3) In case of Sri Achyut (supra), the Karnataka High Court by
Hon'ble Mr. Justice S Abdul Nazeer (his lordship then was) held as
under:
"8. Order 26 Rule 10-A of the Code of Civil
Procedure provides appointment of a
Commission for scientific investigation. It states
that where any question arising in a suit involves
any scientific investigation which cannot, in the
opinion of the Court, be conveniently conducted
before the Court, the Court may, if it thinks it
necessary or expedient in the interest of justice
so to do, issue a commission to such person as it
thinks fit, directing him to inquire into such
question and report thereon to the Court.
9. In VENKATACHALA IYENGAR'S CASE
(SUPRA), the Apex Court has held that under
Section 67 of the Evidence Act, if a document is
alleged to be signed by any person, the signature
of the said person must be proved to be in his
handwriting and for proving such a handwriting
under Sections 45 and 47 of the Evidence Act, the
opinions of experts and of persons acquainted
with the handwriting of the person concerned are
made relevant.
10. This Court in CHIKKANA'S CASE (SUPRA) has
held that discretionary powers have been given to
the Court under Order 26 Rule 10-A of the Code of
Civil Procedure to issue commission directing the
Commissioner to enquire into such question and
report thereon to the Court. It is further held that
the discretionary power has been given to be
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exercised if the conditions are shown to exist
namely the case involves a question which
requires scientific investigation and the scientific
investigation if cannot be conducted in presence
of the Court and in the interest of justice and for
due and proper decision of the Court if it is
necessary to issue the Commission, the
Commission has to be issued. It has been further
held thus:
"11. In the present case, the dispute is about the
genuineness of the signature of the testator on
the Will on the basis of which the defendant
claims title. The question of signatures as to
whether those signatures are of the testator and if
admitted signatures have been produced, whether
the signature in dispute is of the same person
whose signatures are contained on any admitted
document. This question has to be scientifically
analyzed, examined and considered and then
handwriting expert has to give his opinion after
scientifically testing the same. It requires a
specialised skill and scientific knowledge to give.
opinion on that subject. So such a question can
definitely be said to involve scientific
investigation.""
8.4 It is also profitable to refer and rely upon decision of Madras
High Court in a case of S. Chinnathai vs. K.C. Chinnadura
(authored by Hon ble Mr. Justice M. M. Sundresh his lordship then
was),2009 SCCOnlineMad 1166 wherein it has been held as
under,
"18. However, on a consideration of the above said
legal position, the following principles emerge for
consideration:
1. The civil Court is having jurisdiction to send the
document to the Forensic Expert for comparing the
signatures between the disputed documents with the
admitted documents by appointing a Commissioner
and get a report.
2. When the civil Court is exercising its power under
Section 73 of the Indian Evidence Act, the civil Court
will have to exercise its power under Order 26 Rule
10A of the Civil Procedure Code instead of invoking
Section 73 of the Indian Evidence Act.
3. The Advocate Commissioner, being an officer of the
Court can be asked to take the original document.
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4. When the Advocate Commissioner takes the
original document, then a certified copy of the same
will have to be kept under the custody of the Court.
5. The civil Court cannot direct the disputed document
to be compared with the vakalat or written statement
of a party.
6. When the civil Court comes to the conclusion that
the power under Order 26 Rule 10A of the Civil
Procedure Code should be invoked, then the civil
Court shall invoke the same even without an
application from the parties concerned in the interest
of justice and in order to solve the dispute between the
parties.
7. When a document is sent to an expert it should be
sent only to the Government Department Expert and
not to a private Expert. While sending a document to
an expert, the original of the same has to be sent
since it is not possible to compare the xerox copies
with the other admitted documents.
8. The civil Court shall not dismiss an application
seeking for the examination of the document by an
expert on the ground of wrong quoting of provision of
law and in such a case, the Court shall exercise under
Order 26 Rule 10A of the Civil Procedure Code.
9. The civil Court shall exercise under Order 26 Rule
10A of the Civil Procedure Code even when a prayer
is sought for a direction to summon the expert to the
Court for the purpose of examining the document.
10. An application filed under Order 26 Rule 10A of
the Civil Procedure Code will have to be filed at the
earliest opportunity in the normal circumstances.
11. However, an application under Order 26 Rule 10A
of the Civil Procedure Code cannot be dismissed
merely on the question of delay alone, unless the
same is willful and deliberate."
(emphasis supplied)
8.5 Thus, in view of the aforesaid clear pronouncements of law, the
impugned application could have been allowed by trial Court to
bring the truth on record, thereby it can resolve the controversy
arising in the suit.
[9] It is also well-settled legal position that the rule of procedure is a
handmaid of justice, and a hyper-technical approach requires to be
avoided by the Trial Court.
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9.1 It is expected that the principles of natural justice be observed
while deciding any request made by a party, ensuring that no
serious prejudice is caused to any party when such a prayer made
by the applicant is accepted.
9.2 It is profitable to refer and rely upon decision of Hon'ble Apex
Court in a case of Sugandhi (supra), it was held as under:
"[9] It is often said that procedure is the handmaid
of justice. Procedural and technical hurdles shall
not be allowed to come in the way of the court
while doing substantial justice. If the procedural
violation does not seriously cause prejudice to
the adversary party, courts must lean towards
doing substantial justice rather than relying upon
procedural and technical violation. We should not
forget the fact that litigation is nothing but a
journey towards truth which is the foundation of
justice and the court is required to take
appropriate steps to thrash out the underlying
truth in every dispute .."
As well as similarly in a case of Rani Kusum (supra), Hon'ble
Apex Court held as under:
"[12] The processual law so dominates in certain
systems as to overpower substantive rights and
substantial justice. The humanist rule that
procedure should be the handmaid, not the
mistress, of legal justice compels consideration of
vesting a residuary power in judges to act ex
debito justiciae where the tragic sequel otherwise
would be wholly inequitable.- justice is the goal of
jurisprudence - processual, as much as
substantive. (See Sushi/ Kumar Sen v. State of
Bihar, 1975 1 SCC 774).
[13] No person has a vested right in any course of
procedure. He has only the right of prosecution or
defence in the manner for the time being by or for
the Court in which the case is pending, and if, by
an Act of Parliament the mode of procedure is
altered, he has no other right than to proceed
according to the altered mode. (See Blyth v. Blyth,
1966 1 AllER 524 (HL). A procedural law should not
ordinarily be construed as mandatory, the
procedural law is always subservient to and is in
aid to justice. Any interpretation which eludes or
frustrates the recipient of justice is not to be
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followed. (See Shreenath and Anr. v. Rajesh and
Ors., 1998 AIR(SC) 1827)
[14] Processual law is not to be a tyrant but a
servant, not an obstruction but an aid to justice.
Procedural prescriptions are the handmaid and
not the mistress, a lubricant, not a resistant in the
administration of justice."
9.3 It is also well settled law that High Court should
sparingly exercise its power under Article 227 of the
Constitution of India only in appropriate cases in order to
keep the subordinate courts within the bounds of their
authority [Waryam Singh v/s Amarnath, 1954 AIR(SC)
215].Having arrived at the aforesaid conclusion and having
found that trial Court has committed procedural irregularity
which requires to be corrected by this Court while
exercising its power under Article 227 of the Constitution of
India thereby, an interference requires in the impugned
order."
(emphasis supplied)
17. In light of the aforesaid peculiar facts and circumstances
and if we apply the ratio of the aforesaid decision to the facts
of the present case, the impugned application is required to be
allowed and the order passed by the Trail Court requires to be
interfered with by this Court while exercising its power under
Article 227 of the Constitution of India.
18. CONCLUSION
19. In light of the aforesaid observations, the Trial Court has
committed a serious error of law and so also, materially erred
in not exercising its jurisdiction so vested in it while rejecting
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the impugned application.
20. Accordingly, the impugned order dated 09.12.2021 passed
by 13th Additional Senior Civil Judge, Surat, below Exh. 54 in
Regular Civil Suit no. 597 of 2016 is hereby quashed and set
aside. Consequently, the impugned application filed below
Exh.54 is hereby allowed.
21. It is hereby ordered that the Trial Court shall send the
original possession receipt in question, produced at Exh. 47 in
the suit, to the Government Handwriting Expert, at Forensic
Science Laboratory (FSL), Surat or Gandhinagar along with
admitted documents containing the signature of plaintiff. If,
defendants do not dispute and admit the signature of plaintiff
on his Vakalatnama, the copy of plaint as well as copy of
affidavit in lieu of examination in chief of plaintiff (if any) or
any other undisputed and admitted document in existence prior
to filing of suit can be send along with disputed documents
(Exh.47) to said expert for comparison of signature of plaintiff
thereon.
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22. It is further observed that in a case, any specific
requirement will be raised by Government Handwriting Expert
to submit his report, whereby, to submit specimen signature of
plaintiff etc., plaintiff will have to meet with such requirement
and in that eventuality, the Trial Court may pass appropriate
order in case of necessity.
23. Before sending such documents in original, the certified
copy of such documents including disputed document at
Exh.47, be retained on the record of the suit by the Trial
Court.
24. The Government Handwriting Expert should be advised to
compare signature of plaintiff on disputed documents i.e.,
Possession receipt below Exh.47, vis-a-vis plaintiff's signature
on undisputed documents.
25. The necessary steps be undertaken by Trial Court for
implementing the order of this Court. In such circumstances,
the entire expense of obtaining of such Government
Handwriting Expert report and, if so required, to call such
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expert of FSL will be solely borne by plaintiff.
26. It is further made clear that once, such Government
Handwriting Expert report be made available to the Trial
Court, its copy be given to each party and then after, parties
to the suit can prove it in accordance with law. As such, all
rights and contentions of respective parties are kept open in all
respect.
27. In view of the aforesaid observations, direction and
conclusion, the present writ application is hereby partly
allowed to the aforesaid extent. Rule is made absolute
accordingly. No order as to costs. Direct service is permitted.
(MAULIK J.SHELAT,J)
MOHD MONIS
