Orissa High Court
***** vs Bijayalaxmi Biswal And Others on 4 September, 2023
Signature Not Verified
Digitally Signed
Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1418 OF 2022
(An application under Article-227 of the Constitution of India.)
*****
Tunilata Nayak and another .... Petitioners
-versus-
Bijayalaxmi Biswal and others .... Opp. Parties
Advocate for the Parties
For the Petitioners : Mr. Samir Kumar Mishra,
Senior Advocate, being assisted by
Mr. J. Pradhan, Advocate
For Opp. Parties : Mr. Banshidhar Baug, Advocate
(For Opp. Party Nos.1 to 3)
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 04.09.2023
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Order dated 28th July, 2022 (Annexure-6) passed by
learned Additional District Judge, Nimapara in Civil Revision
No.2 of 2021 and order dated 3rd August, 2021 (Annexure-5)
passed by learned Senior Civil Judge, Nimapara in C.S. No.29 of
2010 rejecting an application filed by Defendant Nos.1 and 3-
Petitioners praying inter alia to send the admitted signatures of
DW-5-Rajkishore Sahoo in his deposition to the handwriting
expert along with other signatures for comparison.
3. Mr. Mishra, learned Senior Advocate appearing for the
Petitioners submits that the Plaintiffs-Opposite Party Nos.1 to 3
have filed C.S. No.29 of 2010 for declaration that the sale deed
CMP No. 1418 OF 2022
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
executed by Defendant No.2-Opposite Party No.4, Jogendra
Biswal in favour of the Defendant-Petitioner No.1 is null and
void and for permanent injunction against Defendant Nos. 1 and
3-Petitioners as well as ancillary reliefs. After closure of the
evidence of the Plaintiffs-Opposite Party Nos. 1 to 3, they filed
an application to open the report of the handwriting expert in
respect of the signature of the Plaintiff No. 1 on the sale deed in
question. The said application was allowed. Assailing the same,
Petitioners preferred CMP No. 379 of 2020, which was disposed
of without interfering with the order of learned trial Court and
observing that the same cannot be admitted without following
due procedure of law. It is alleged by the Plaintiffs-Opposite
Party Nos.1 to 3 that the sale deed has been obtained on forged
stamp papers. Rajkishore Sahoo was the Stamp Vendor from
whom the stamp papers were purchased by Opposite Party No.4,
Jogendra Biswal. Said Rajkishore Sahoo was also examined on
behalf of the Defendant Nos.1 and 3-Petitioners as DW-5.
Thereafter, the Petitioners filed an application to call for the
register of stamp vendor, namely, Rajkishore Sahoo from the
office of the District Sub-Registrar-cum-Additional District
Magistrate, Khurda. The said application was allowed vide order
dated 22nd February, 2019 and the Petitioners were directed to
deposit the cost of Rs.3,000/-. On deposit of such cost, the
concerned register was called for. But, prior to that, the
Petitioners had filed an application to send the disputed signature
available on the Registered Sale Deed to be compared with the
specimen signature of said Rajkishore Sahoo, Stamp Vendor
CMP No. 1418 OF 2022
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Digitally Signed
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
along with his signatures available in the register of Stamp
Vendor. The said application was allowed vide order dated 15 th
March, 2017 directing to issue notice to said Rajkishore Sahoo
to appear in Court and give his specimen signature. Assailing the
said order, the Opposite Party Nos.1 to 3 preferred CMP No.486
of 2017, which was disposed of on 30th August, 2017 with the
following direction:
"Considering the rival contentions of the parties and
on perusal of the impugned order, the observation
made in the impugned order as well as the application
therein, this Court finds even though there existed a
signature of Raj Kishore Sahoo but fresh collection of
signature of Raj Kishore Sahoo will not only prejudice
the case of the petitioners but there will rather better
material for comparison purpose. Under the
circumstance, this Court is not inclined to interfere in
the impugned order."
3.1. By the said order, this Court also directed to complete the
exercise of comparison within a period of eight weeks therefrom.
Said Rajkishore Sahoo was also examined as DW-5 on behalf of
the Defendant Nos.1 and 3-Petitioners on 16th February, 2017.
Thereafter, the Petitioners filed an application to call for the
register from the office of the District Sub-Registrar-cum-
A.D.M., Khurda, in which entries with regard to sale of stamp
papers to Jogendra Biswal is available. The Petitioners also
deposited the cost to call for the said register. But, instead of
supplying the original register, the Office of the District Sub-
Registrar-cum-A.D.M, Khurda supplied the photocopy of the
said register. Accordingly, the Court directed the District Sub-
Registrar to produce the original stamp register. In the
meantime, the petition filed by the Petitioners to send the
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
admitted signature of said Rajkishore Sahoo available in the
Stamp Vendor register along with his specimen signature
obtained by the Court for comparison with that of available on
the disputed RSD to the handwriting expert had already been
allowed on 1st March, 2021 subject to payment of cost of
Rs.5,100/-, which the Petitioners have deposited on 12th April,
2021. Before the above could be sent to the handwriting expert,
the Petitioners on 2nd April, 2021, filed an application to send the
signature of DW-5 available on his depositions along with the
aforesaid signatures to be compared with the disputed signature
of said Rajkishore Sahoo available on the stamp papers on which
the disputed RSD was prepared. The said application was
rejected vide order under Annexure-5. Assailing the same, the
Petitioners being not advised properly, preferred Civil Revision
No.2 of 2021, which was also dismissed on 28th July, 2022 under
Annexure-6. Hence, this CMP has been filed.
4. It is submitted by Mr. Mishra, learned Senior Advocate
that when disputed signature would be compared with the
admitted signature of Rajkishore Sahoo, who has been examined
as DW-5, his signatures available on his deposition should also
be sent for comparison, so that, the comparison would be
effective and easier. Learned trial Court holding that the
Petitioners have not complied with the direction of the Court,
rejected the petition.
4.1 It is his submission that the Petitioners have never failed
in complying with the direction of learned trial Court at any
time. They have deposited the cost within the stipulated period.
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
Learned trial Court has not specified as to which order, the
Petitioners have not complied with. He further submitted that
since the signatures of DW-5 are available in his deposition,
those will be helpful in comparison by the handwriting expert.
There is also no difficulty to send the same to the handwriting
expert along with other documents, which were not sent to the
handwriting expert by then. If the signatures of DW-5 in his
deposition are sent to the handwriting expert for comparison
with the disputed signatures, the Plaintiffs-Opposite Party Nos.1
to 3 will be no way prejudiced. These aspects were not taken
into consideration by learned trial Court while adjudicating the
petition. Hence, he prays for setting aside the impugned orders
under Annexure-5 and to direct learned trial Court to send the
signatures of DW-5 available in his deposition to the
handwriting expert along with other signatures.
5. Mr. Baug, learned counsel for the Opposite Party Nos.1
to 3 submits that petition to send the signature of DW-5 to the
handwriting expert was filed on 16th February, 2017, on which
date the deposition of DW-5 was recorded. Thus, when earlier
petition to send the admitted signatures of Rajkishore Sahoo to
the handwriting expert was taken up for consideration, the
deposition of DW-5 was available on record. The Petitioners did
not make any prayer then to send the signature of DW-5 to the
handwriting expert. He further submitted that sending the
signature available in the deposition of DW-5 will no way
improve the case of the Petitioners, as DW-5 was examined on
their behalf and has deposed that he had not signed on the
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
disputed stamp papers used for execution of the disputed
Registered Sale Deed. The deposition made by DW-5 is binding
on the Petitioners. Thus, learned trial Court has committed no
error in rejecting the petition filed by the Petitioners vide order
under Annexure-5.
6. Considering the rival contentions of the parties and on
perusal of the record, it appears that initially, the Petitioners filed
an application on 16th February, 2017 to send the admitted
signature of Rajkishore Sahoo to be compared with that of his
disputed signature available on the stamp papers used for
preparation of the sale deed. It also appears that deposition of
DW-5 was recorded on the very same day. Thus, by the date the
petition to send the signature of DW-5 to the handwriting expert
for comparison was taken up for consideration, his deposition
has already been recorded. No prayer to send the signature
available on the deposition was made at that time. Such a prayer
was made belatedly after four years, i.e., on 2nd April, 2021,
when the Petitioners were directed to deposit the cost to send the
documents to the handwriting expert for comparison. In the
meantime, the Plaintiffs have moved this Court in CMP No.486
of 2017 assailing the order dated 15th March, 2017 directing to
issue notice to said Rajkishore Sahoo to appear and give his
specimen signature. This Court, considering the matter, refused
to interfere with the impugned order holding that although the
signatures of DW-5 are available on record, but an additional
document, i.e., the specimen signature of Rajkishore Sahoo if
sent for comparison with his disputed signature available on the
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Signed by: SASANKA SEKHAR SATAPATHY
Reason: Authentication
Location: HIGH COURT OF ORISSA CUTTACK
Date: 08-Sep-2023 18:32:54
stamp paper, will not prejudice the Plaintiffs-Opposite Party
Nos.1 to 3. No such prayer was made at that time also to send
the signature of DW-5 available in his deposition for
comparison.
7. Admittedly, sufficient materials for comparison of
disputed signatures of Rajkishore Sahoo are available on record
with his admitted signatures. Thus, an additional document at a
belated stage is unnecessary to be sent along with other
signatures of said Rajkishore Sahoo.
8. In view of the above, this Court is of the considered
opinion that learned trial Court has committed no error in
rejecting the petition filed by the Petitioners to send the
signatures of DW-5 in his deposition for comparison with his
disputed signature along with other signatures, as aforesaid.
9. Hence, the CMP being devoid of any merit stands
dismissed.
10. Interim order dated 10th May, 2023 passed in I.A.
No.1460 of 2022 stands vacated.
11. The disposed of case record be sent back to the
concerned Section immediately.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
ms Judge
CMP No. 1418 OF 2022
