SASHI BHUSAN Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The scope of S.73 of the Evidence Act is the core question that arises for consideration in this application under S.115, Civil P.C. By the impugned order the trial Court has allowed the application of opposite party No.1, State Bank of India to direct the petitioners to give their handwriting and signatures in court for the purpose of comparison with disputed writings through the help of a handwriting expert.

(2.) The opposite party 1 filed Money Suit No.22/80 before the Subordinate Judge, Jajpur for realisation of a sum of Rs.40,620.75 from the petitioners and opposite party 2. The account in question stood in the name of opposite party 2. The allegations material for the purpose of the present proceeding are that petitioner 1, Sashi Bhusan Pati operated the account on several occasions and he withdrew the total sum of Rs.34,380 unauthorisedly from the account of opposite party 2. This having been detected by the authority subsequently, the said petitioner 1, as alleged by the Bank, admitted to have so operated the accounts and further stated that petitioner 2 (defendant No.3) received a part of the amount so withdrawn by him from the account in question. In the written statement the petitioners took the plea that they were in no way connected with opposite party 2 and they have not operated the account in question at any time. In short they totally denied their involvement in the affair.

(3.) Before commencement of hearing, an application under S.73, Evidence Act was filed by the plaintiff, Bank praying that the petitioners be directed to give their handwriting to enable the Court to compare the same with the disputed writings. This application by order dt. 1-3-1982 was rejected by the Court on the grounds that it was premature and at the hearing of the suit it is open to the Court to take recourse to S.73 of the Evidence Act if necessary. Thereafter another application with similar prayer was filed by the plaintiff on 27-4-1982 on which the impugned order was passed. The application was objected by the petitioner inter alia on the ground that a similar petition having been rejected earlier the subsequent application is not entertainable and that no case for taking recourse to S.73 of the Act has been made out in the facts and circumstances of the case. As stated earlier, the application was allowed by the Court.