BHAGIRATI SAHU Vs. AKAPATI BHASKAR PATRA

JUDGEMENT

(1.) This Revision is directed against the order of the learned Civil Judge (Senior Division), Berhampur rejecting the application under Order 26, Rule 10(A) of the Code of Civil Procedure for sending the disputed signature in the alleged agreement for sale of the suit house for examination and opinion of the handwriting expert.

(2.) The short facts of the case is that the opposite party filed Title Suit No. 19 of 1992 in the Court of the learned Civil Judge (Senior Division), Berhampur for a decree of specific performance of contract basing on the agreement (Ext. 2). The petitioners filed Title Suit No. 94 of 1992 for eviction of the opposite party from the suit house. Both the suits were taken up for analogous hearing. The present petitioners filed an application under Order 26, Rule 10(A) , C.P.C. read with Section 151, C.P.C. and prayed for sending Ext. 2 to the handwriting expert mainly on the ground that both the parties produced oral and documentary evidence in respect of their respective contentions and in order to arrive at a right conclusion the purported agreement for sale of the disputed house (Ext. 2) which is the sole basis of the claim for specific performance of the contract, it should be examined by scientific expert i.e. handwriting expert. The opposite party filed his objection to the petition contending inter alia that Ext. 2 has already been proved by PWs 1, 2, 3 and 4, and in view of the evidence on record the document does not require any scientific investigation specially when the Court is the expert of experts and can determine the point by comparing the admitted signature in other documents with Ext. 2. A further objection was taken that the petition has been filed to cause delay and prejudice to the opposite party and as such , the application at the fag end should be rejected.

(3.) The learned Civil Judge (Senior Division) by his order dated 15-12-2000 rejected the application mainly on the ground that in course of hearing of the suit both sides have led oral and documentary evidence in support of their respective claims. The plaintiff sought to prove the due execution of the agreement (Ext. 2) and the signature of defendant No. 1 thereon through PWs. 1 to 4 and the defendants have also led evidence to disprove the same by adducing oral and documentary evidence from their side. In addition, defendant No. 1 took the plea that on the date of the alleged execution of the agreement he was out of Berhampur. The learned Court was of the opinion that since the evidence of both sides was already before the Court, the Court can conveniently give its finding on the question by scrutinising the documentary and oral evidence led by both sides and it does not involve any scientific investigation. It was also observed that the opinion of handwriting expert is not final and conclusive and it is open for the Court to accept or discard the opinion of the expert after examining him. The burden to prove the due execution and signature thereon being on the plaintiff, ordinarily he should have prayed for sending the document for expert's examination, but filing of such a petition for expert's opinion by the defendant after seeking a plea of alibi by the signatory himself may be for the purpose of delaying the disposal of the suit. Hence, the present revision challenged the said order.