SWAMI SATYANAND Vs. RAJIV RANJAN KUMAR SINGH

JUDGEMENT

(1.) This revisional application arises out of an order dated 14th June, 2011 by which an application filed by the plaintiff/opposite party under Order 26 Rule 10A of the Civil Procedure Code read with Section 45 of the Indian Evidence Act on 25th June, 2010 was allowed. The plaintiff filed a suit for specific performance of a contract directing the defendant to execute the sale deed in favour of the plaintiff. The defendant petitioner is contesting the suit and filed his written statement. Of the various objection taken, it was contended that agreement for sale is forged, fabricated and manufactured. The plaintiff in view of such objection raised by the defendant filed an application under Order 26 Rule 10A read with Section 151 of the Code of Civil Procedure along with an application under Section 45 of the Indian Evidence Act for appointment of a handwriting expert for comparison of the signature in the said deed with the signatures in two Powers of Attorney said to have been executed by the defendant. In the said application, the plaintiff referred to paragraph '5' and '7' of the written statement in which the defendant referred to the institution of criminal case against the plaintiff and others before the First Class Judicial Magistrate, Bihar being 1157 of 2009 in which the petitioner relied upon an opinion of a Hand Writing and Finger Print Expert Bureau claimed to have been prepared after examination of the admitted and disputed signature of the defendant and on such report, it is contended that the said agreement for sale was not signed by Swamy Satyanand.

(2.) The plaintiff contended in this application that such report is not tenable in law inasmuch as the said Hand Writing and Finger Print Expert Bureau is not a Government Agency and the signature of the defendant on the agreement for sale requires a scientific comparison with his signatures appearing in two sets of power of attorney which were marked as Exhibit 18 and 18/3 in connection with Title Suit no. 123/87 filed before the first Court of Civil Judge, Senior Division, Bhaua in Bihar. In view of such objection in the written statement the plaintiff filed an application under Order 26 Rule 10A read with Section 45 of the Indian Evidence Act. The defendant contended that the said application is pre mature. There is no scope for obtaining any opinion of a handwriting expert at this stage since the document has not been tendered in evidence and it is only after the said document is tendered in evidence, there may be a necessity of an opinion of handwriting expert. It was argued that unless the said document is tendered in evidence and marked as Exhibit, it is not open to the petitioner to seek appointment of a handwriting expert under Section 45 of the Indian Evidence Act.

(3.) The Court in allowing the said application has considered that at any stage of the suit, the Court can obtain opinion of an handwriting expert on disputed signature or handwriting. The defendant already had obtained a report from an examiner of his own choice which report supports his defence. The Court felt in view of such rival contentions, the plaintiffs application to obtain opinion of an independent Government handwriting examiner at this very early stage might assist the Court in adjudicating the genuineness of the signature of the said document. It was on this consideration, the said application was allowed and the Director, Questioned Documents Examination Bureau, C.I.D., West Bengal Bhabani Bhaban, Alipore was requested to take steps in the matter. Mr. Prabal Mukherjee, learned counsel appearing on behalf of the petitioner referred to the decision of the Supreme Court in the case of Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006 11 SCC 331 for the proposition that the said instrument is not admissible in evidence in view of the fact that the same is inadequately stamped. Since this document has not been marked as exhibit and could not be so in view of a clear bar under Section 36 of the Indian Stamp Act, the trial Court ought not to have passed such an order.