PRABHUDAS UKABHAI MARADIA Vs. MANSUKHBHAI KODBHAI VADODARIA

JUDGEMENT

(1.) This petition is filed under Article 227 of the Constitution of India challenging an order dtd. 23/2/2022 passed below Exh.193 in Regular Civil Suit No.44 of 2015 (Old Special Civil Suit No.46 of 2007) whereby an application tendered by the petitioners, praying for original Notary Register containing signature of one of the plaintiffs be sent for comparison by handwriting expert, came to be rejected. The said application appears to have been given on 8/12/2021. The petitioner filed a suit claiming declaration to the effect that, defendant No.3, in the suit, based on forged Power of Attorney of the plaintiffs, executed registered sale-deed in favour of defendant No.1 dtd. 22/8/2003 and in turn, defendant No.1 sold it to the defendant No.2 vide sale-deed dtd. 25/1/2006, both these transactions by way of sale-deed, is illegal and not binding to the plaintiffs as the first sale-deed came to be executed based on forged signatures of the petitioners-plaintiffs. For the purpose of decision of this application, other prayers made in the suit is not required to be quoted.

(2.) Mr.Dipal Ravaiya, learned advocate for the petitioners - plaintiffs submitted that under Order XXVI Rule 10A of the Code of Civil Procedure, 1908 (for short, 'the Code') it is incumbent upon the Court to appoint Commissioner to have the scientific investigation of the document i.e. Notary Register Exh.191, which contains signature of one of the plaintiffs for comparison to the handwriting expert. He has further submitted that it is the case of the plaintiffs from the beginning that sale- deed for the suit property came to be executed based on the forged Power of Attorney, which is not binding to them. However, plaintiffs vide Exh.187 application submitted that original Power of Attorney is not traceable and the said fact has come on record and therefore, plaintiffs may not have that Power of Attorney in original with them. It is further asserted in the said application that original Power of Attorney is not with the defendants and to that effect, an affidavit is also filed by them. Therefore, according to his submission, when one of the plaintiffs signed the Notary Register before whom the said Power of Attorney is registered, it is required to be sent to the handwriting expert for his opinion so that truth may come out on record. Relying on a decision in the case of Kannagi Rep. by her General Power of Attorney Agent, Govindharaj Vs. K.Kandasamy and another reported in C.R.P. (PD) NO.3747 of 2015 by Madras High Court dtd. 11/1/2016, it is submitted that Court is empowered to send the said documents for scientific investigation, merely because, the Court is able to compare the signature under Sec. 73 of the Evidence Act, such prayer cannot be refused. Therefore, he submitted that the impugned order refusing the prayer to send the Notary Register which contains signature of one of the plaintiffs to the handwriting expert for the comparison is illegal and therefore, he has requested that this petition be admitted and allowed.

(3.) Having heard the learned advocate for the petitioner and going through the impugned order as also the documents annexed with the petition, it is not in dispute that claim of the petitioners -plaintiffs by way of the suit, which is filed in the year 2007, is to the effect that sale- deed in question has come to be executed based on forged Power of Attorney and therefore, it is not binding to the petitioners-plaintiffs. It is further undisputed fact that the petitioners-plaintiffs produced the opinion by private handwriting expert vide Exh.146, as claimed in an application Exh.187. It is further undisputed fact that pursuant to an application filed by the petitioners- plaintiffs, defendants have filed an affidavit, declaring that original Power of Attorney is not in their possession. However, vide an application Exh.187 on 8/3/2021, petitioners-plaintiffs prayed for issuance of summons to the Advocate Notary, who registered the said Power of Attorney for production of his register which contains signatures of the petitioners-plaintiffs as also prayer was made to issue summons as a production witness to the office of the Sub Registrar while executing sale-deed if that notarized Power of Attorney forming part of the said sale-deed as also a prayer was made that if at all any document is produced and found containing signatures of the petitioners - plaintiffs that may be sent to the handwriting expert to compare the same with admitted signature, which is there on the record of the Court. However, vide an order passed below Exh.187 dtd. 23/9/2021, the Court partly allowed the application and directed the Advocate Notary who notarized Power of Attorney was issued a summons to remain present before the Court with documents mentioned in the order pursuant to which said notary was examined before the Court and original register vide Exh.191 which contains the signature of one of the plaintiffs is produced during the course of his evidence.