BABUBHAI MULCHANDDAS KAPADIA Vs. ISHWARLAL DEVCHAND KABRAWALA

JUDGEMENT

(1.) This revision application is directed against the order passed on 11th February 1974 by the learned 3rd Joint Civil Judge (J.D.) Surat directing the defendant to write in the open court contents of writings Q1 and Q2 as desired by the Assistant Government Examiner of Questioned Documents.

(2.) The petitioner is original plaintiff. The respondent is original defendant. The plaintiff filed Civil Suit No. 1207 of 1969 against the defendant for ejectment. The plaintiff relied upon the rent note dated 15 in respect of the suit premises alleged to be executed by the defendant. The plaintiff also relied upon a writing dated 31st October 1963 below the rent note. In the said suit the defendant filed an application dated 17th April 1972 and contended that the defendant bad put the signature at the end of the rent note but the defendant had not put his signature at the end of the writing below the rent note. The defendant contended that the writing below the rent note and signature below the said writing were not in his hand-writing. The defendant by the said application requested that as he was disputing the signature and the writing at the foot of the rent note the original rent note should be sent to the Examiner of Questioned Documents Intelligence Bureau Simla. The court by its order dated 14th August 1972 granted the said application and directed the defendant to take photo copy of the rent note and forward the same to the Examiner of Questioned Documents. Thereafter the defendant filed another application on 19th November 1973 In the said application the defendant averred that the rent note in question was sent to the Examiner of Questioned Documents for his opinion on the signature and writing below the rent note. The Examiner of Questioned Documents had sought for some directions. The defendant requested that the court might. take specimen signature of the defendant in presence of the court and allow the defendant to copy from the questioned writing and to send them to the Examiner of Questioned Documents for comparison with the disputed signature and writing.

(3.) This application was resisted by the plaintiff. It was contended on behalf of the plaintiff that the court had no authority to take any specimen signature or specimen writing of the defendant in the court for the purpose of sending the said signature and writing to the Examiner of Questioned Documents as the standard writings of the defendant for comparison with the disputed signature and writing on the alleged rent note. The learned Civil Judge overruled the objections raised by the plaintiff and observed that the defendant had admitted his signature at the end of the rent note and the schedule annexed to the rent note. However the defendant had disputed the writings below his admitted signature in the rent note and the schedule and the signature below those writings and contended that those writing and signatures were not in his hand-writings. The defendant had moved the court by an application exh. 38 dated 17th April 1972 to seek opinion of the Government Examiner of the Questioned Documents. By order dated 14th August 1972 the documents in question were sent to the Examiner of Questioned Documents Simla. The Government Examiner returned the documents stating that it was not possible to express any opinion on the questioned writings marked Q1 and Q2 on comparison with the standard writings marked A1 and A2. It was further observed that for expressing opinion on the questioned writings marked Q1 and Q2 further admitted genuine writings of some existing documents of defendant called Ishwarlal Devchandbhai Kabrawala might be procured and sent to the Assistant Government Examiner of Questioned Documents. It was also observed that it would be desirable if the contents of Q1 and Q2 were dictated to the aforesaid person on a few sheets and those might also be sent. The learned Civil Judge thereafter observed that there were no other admitted genuine writings on existing documents produced in the Court therefore the only course open to the court was to obtain admitted writings by dictating the defendant to write the writings in the open court. The learned Civil Judge ordered that the contents of writings Q1 and Q2 shall be dictated in the open court as desired by the Assistant Government Examiner of Questioned Documents. The learned Civil Judge observed that in the interest of justice it was necessary to obtain such admitted writings on the plain sheets in the open court in presence of the Presiding Officer.