Judhistiro Nayak And Others vs Rajkishore Patro And Others
2023 Latest Caselaw 9847 Ori

Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 24-Aug-2023 17:12:54

                                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                                W.P.(C) No. 30083 OF 2011
                                               Judhistiro Nayak and others             ....      Petitioners
                                                                   Mr. Prasanna Kumar Mishra, Advocate
                                                                        -versus-
                                               Rajkishore Patro and others             .... Opp. Parties
                                                                                 Mr. S.K. Joshi, Advocate
                                                     CORAM:
                                                     JUSTICE K.R. MOHAPATRA
                                                                      ORDER

                       Order No.                                     23.08.2023
                             6.           1.       This matter is taken up through hybrid mode.

2. Order dated 1st November, 2011 (Annexure-4) passed by learned Additional District Judge, Parlakhemundi in R.F.A. No.3 of 2010 is under challenge in this writ petition, whereby an application filed by the Plaintiffs-Petitioners under Order XXVI Rule 10-A CPC to send Exts.E, H and J to the handwriting expert for scientific examination with regard to signature of P.W.1, has been rejected.

3. Mr. Mishra, learned counsel for the Petitioners submits that the Opposite Parties as Plaintiffs filed T.S. No.4 of 2001 in the Court of learned Civil Judge (Junior Division), R. Udayagiri for injunction. During pendency of the suit, an application was filed by the Defendants-Petitioners to recall P.Ws.1 to 4 to confront their signatures on those exhibits. The said application was rejected. Assailing the same, the Petitioners preferred W.P.(C) No.12020 of 2007, which was disposed of vide order dated 8th October, 2007 permitting the Petitioners to file an application to send those exhibits to the handwriting expert for verification of the signature of P.W.1 on those documents.

Signature Not Verified // 2 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54

However, the Defendants did not take any step before learned trial Court to send those documents to the handwriting expert. The suit was decreed vide judgment dated 18th January, 2010. Assailing the same, the Defendants-Petitioners preferred R.F.A. No.3 of 2010 which is pending for adjudication. During pendency of the appeal, the Petitioners filed an application under Order XXVI Rule 10-A read with Order XLI Rule 27 CPC to send Exts.E, H and J to the handwriting expert for its opinion on the signature of P.W.1 available on those documents. The said application was rejected vide order dated 1st November, 2011 under Annexure-4. Hence, this writ petition has been filed assailing the said order.

4. It is submitted by learned counsel for the Petitioners that the application so filed was rejected on the ground that learned trial Court had drawn adverse inference for want of registration of those documents and absence of recitals with regard to delivery of possession. However, the Petitioners have taken a ground in the appeal memo assailing such finding. Thus, in order to ascertain that the P.W.1 was a party to the said documents, those are necessary to be sent to the handwriting expert for his opinion. He further submits that the observation of learned District Judge in the impugned order amounts to prejudge the issue. He, therefore, prays for setting aside the impugned order under Annexure-4 and submits that since the appeal is continuation of the suit, there is no legal impediment to work out the direction of this Court to send those documents to the handwriting expert for scientific examination.

Signature Not Verified // 3 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54

5. Mr. Joshi, learned counsel for the Opposite Parties submits that although liberty was granted to the Petitioners to file an application to send those documents to the handwriting expert before learned trial Court, but they did not avail the same. Moreover, the adverse inference has been drawn by learned trial Court is not in respect of the signature available on Exts.E, H and J. Thus, learned appellate Court has rightly held that the documents are not necessary to be sent to the handwriting expert for scientific examination. Since the Petitioners have taken a specific ground assailing the finding of learned trial Court with regard to drawing adverse inference against those documents, the said plea can be considered at the time of hearing of the appeal. Learned appellate Court has also not expressed any opinion on the findings of learned trial Court. It has only drawn adverse inference against those documents for want of registration and absence of recitals of delivery of possession. Thus, the documents are not required to be sent to the handwriting expert for scientific examination. He, therefore, prays for dismissal of the writ petition.

6. Considering the submissions made by learned counsel for the parties, this Court finds that although this Court in W.P.(C) No.12020 of 2007 granted liberty to the Petitioners to file application to send Exts.E, H and J to the handwriting expert for scientific examination, but they did not avail the same for the reasons best known to them. In the meantime, the suit has been disposed of and R.F.A. No.3 of 2010 has been filed assailing the said judgment and decree by the Petitioners. Admittedly, the adverse inference was drawn by learned trial Court in respect of

Signature Not Verified // 4 // Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Aug-2023 17:12:54

Exts.E, H and J stating that those documents were not registered and there is no recitals of delivery of possession in those documents. Thus, signature of P.W.1 available on Exts.E, H and J is immaterial for consideration of the appeal.

7. On perusal of the impugned order under Annexure-4, it appears that learned appellate Court has not expressed any opinion on the grounds taken by the Petitioners in respect of the observation of learned trial Court drawing adverse inference against those documents. Thus, the submission of Mr. Mishra, learned counsel for the Petitioners that learned appellate Court has prejudged the issue, is not sustainable.

8. Since the Petitioners did not avail the opportunity granted by this Court to send Exts.E, H and J to the handwriting expert and as observed herein before that those documents are not required to be send to the handwriting expert for scientific examination, the argument of Mr. Mishra, learned counsel for the Petitioners that the appeal being the continuation of the suit, the liberty granted by this Court can be exercised at the appellate stage, is not sustainable.

9. Accordingly, the writ petition being devoid of any merit stands dismissed.

10. Interim order dated 1st December, 2011 passed in Misc. Case No.17627 of 2011 stands vacated.

Urgent certified copy of this order be granted on proper application.

                                                                             (K.R. Mohapatra)
               ms                                                                  Judge