UTPAL KUMAR CHAKRABORTY Vs. SUBORNA DEVI

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dated 23.03.2012 passed by the learned S.D.J.M. (Evening Court), Katihar in Money Suit No. 9 of 2009, whereby and whereunder the application of the plaintiff-petitioner herein to send the signature made on the agreement in question to a handwriting expert for comparing the same with the admitted signature of the defendant-respondent herein, has been rejected. The brief facts of the case are that the petitioner herein had filed a Money Suit bearing Money Suit No. 9 of 2009 for realisation of a sum of Rs. 50,000/- on the ground that the defendant-respondent herein had approached the plaintiff in the month of May, 2002 and had taken an advance of Rs. 50,000/- as a family loan, which was given by the petitioner herein in presence of witnesses on 18.02.2002 and a deed of agreement was executed on a stamp paper. However, subsequently, the defendant-respondent herein had refused to pay the said money. The defendant-respondent herein had filed her written statement stating therein that the suit is hit by the provisions of the Bihar Money Lending Act, 1976, the allegations made in the plaint are false and concocted, hence denied and the defendant-respondent herein had never taken a sum of Rs. 50,000/- as loan from the petitioner herein. In the said written statement it was further stated that the deed of agreement is forged and fabricated. Further other averments have also been made in the written statement, which are not necessary to be stated herein, considering the scope of the present writ petition.

(2.) The petitioner herein is said to have filed a petition dated 24.08.2010/03.12.2011 in the aforesaid Money Suit inter alia praying therein to send the admitted signature of the respondent herein, made on her written statement on oath, along with the disputed signature of the defendant-respondent herein made on the agreement dated 18.05.2002, to a handwriting expert for examination and submitting his report. It appears that the learned Sub-Divisional Judicial Magistrate (Evening Court), Katihar had heard the aforesaid petition of the petitioner dated 24.08.2010 and by the impugned order dated 23.03.2012 had rejected the said petition being not maintainable at that stage since the same had been filed almost after a lapse of about one year of the case being fixed for argument on 18.01.2010. The learned counsel for the petitioner submits that it is essential to seek opinion of a handwriting expert in order to lay bare the truth since the defendant-respondent herein has filed a written statement wherein she has denied having made any signature on the said agreement dated 18.05.2002.

(3.) I have heard the learned counsel for the petitioner and perused the materials on record. At this stage, it would be relevant to reproduce Sections 45, 47 and 73 of the Indian Evidence Act, 1872 herein below:-