DEBASIS SAHA AND ANOTHER Vs. BASUDEV SAHA

JUDGEMENT

(1.) This Civil Miscellaneous Petition involves a challenge to the order under Annexure-7 passed by the learned Second Additional Civil Judge (Sr. Divn), Cuttack rejecting an application at the instance of the defendants for sending particular documents to any other Central/State Laboratory for examination of the issue involved.

(2.) Leaving apart the unnecessary details, the fact required for the purpose of consideration of the case at hand is that the petitioners filed a suit for eviction against the defendants concerning the land and building appearing in the schedule. This suit was tried together along with C.S. No.222/2008 at the instance of the defendant concerning the same property. During course of cross examination of P.W.1 by the present petitioners, finding confrontation of the P.W.1 to several documents to be of different handwritings and signatures, the present petitioners as the defendants in and the plaintiffs in C.S.No.222 of 2008 filed an application under Order 26 Rule 10(A) read with Section 75(a) and 151 of C.P.C requesting the Court to send the particular disputed handwritings, documents to handwriting experts for scientific/expert investigation and also the signatures in comparison with the admitted and specimen handwritings as well as signatures of the P.W.1 to answer the controversies raised by the P.W. 1 particularly with regard to his handwritings and signatures involving some document sought to be exhibited. The trial Court by its order dated 27.10.2014 rejected such application. Petitioners moved C.M.P. No.1405 of 2014 before this Court and this Court while setting aside the order dated 27.10.2014 remitted the matter back to the learned trial Court for reconsideration of the issue involved. It is on reconsideration of the application under order 26 Rule 10(A) of C.P.C, the trial Court accepting the petition by order dated 24.2.2015 directed for sending the disputed handwritings and signatures to the handwriting expert for examination at the cost of the petitioners. This order was challenged by the present opposite party in filing C.M.P. No.335 of 2015. This Court refusing to interfere with the impugned order by order dated 9.9.2015 directed the learned Civil Judge (Sr. Divn.), 2nd Additional Court, Cuttack to send the disputed as well as admitted signatures of the petitioners to the handwriting expert immediately for opinion and also directed that the opinion shall be obtained within two months and also with further direction to the trial Court to expedite hearing of the suit involved and close the same by end of March, 2016. As a consequence of the aforesaid direction, it appears, some documents were sent to the handwriting experts through a special messenger on 28.12.2015 after a gap of six months. The C.I.D, C.B., H.W.B, Rasulgarh assigned with the work of comparison returned back the documents requesting therein for transmission of the same alongwith certain other documents. The trial Court complied with the said requirements by once again sending the documents alongwith specimen handwritings signature and short signatures of the P.W.1 again through a special messenger on 17.8.2016, which is also after a long gap. The C.I.D., C.B., H.W.B, Rasulgarh in a sealed envelope submitted its report dated 28.7.2017 as appearing at Annexure-3. On acceptance of the same by the trial Court, the petitioners filed a memo requiring full compliance of the direction of this Court dated 9.9.2015 passed in C.M.P. No.335 of 2015. The trial Court by order dated 19.4.2017 passed an order for resending of the documents for examination. It is at this stage, challenging the order dated 19.4.2017 the opposite party filed C.M.P. No.559 of 2017 in the meantime. Fresh report of the authority was received by the Court on 16.5.2017. On opening of the sealed envelope, it was found that the Department authorized returned back the document again indicating that there is no adequate sample, admitted English writings, figures, short signatures on this aspect and also with the intimation to the authority declining to collect the specimen. In the meantime the C.M.P. No.559 of 2017 was dismissed as withdrawn. Finding no finality to the requirement of the handwriting as well as signatures of the P.W.1, the petitioners filed memo alongwith an application for resending the documents for effective adjudication of the dispute. The application being declined the petitioners filed the present civil miscellaneous petition.

(3.) Assailing the impugned order, Sri Mohanty, learned Senior Advocate appearing for the petitioners submitted that for the clear direction of this Court given in C.M.P. No.335 of 2015 and for the subsequent order observing that there is requirement of such examination and for the C.I.D., C.B., H.W.B, Rasulgarh expressing its inability to come to a conclusion for non-furnishing of appropriate document, the trial Court is duty bound to send the appropriate document with required specimen to have an expert opinion on the handwriting as well as signature of the P.W.1.