The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 46 of 2023 Prashant Kumar Panigrahi Petitioner Mr. Sanjeev Udgata, Advocate …. -versus- Usharani Tripathy and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 06.02.2023 1. 1. This matter is taken up through Hybrid mode. 2. Petitioner in this CMP seeks to assail the order dated 7th learned 2nd (Annexure-10) passed by December, 2022 Additional Senior Civil Judge, Berhampur in CS No.149 of 2005, whereby an application filed by the Petitioner under Order XXVI Rule 10-A CPC, has been rejected. 3. It is submitted by Mr. Udgata, learned counsel for the Petitioner that the agreement for sale (Ext.-C) and the affidavit sworn in by the Plaintiff (Ext-S) are relevant for adjudication of the real controversy involved in the suit. Although the Plaintiff during her cross-examination admits her full signatures in Ext.- C and Ext.-S, but does not admit the initials at first page of Ext.- C, so also in Ext.-S. Hence, the Defendant Nos.1 and 2 filed a petition to send Ext.-C and Ext.-S to the handwriting expert for comparison of the initials of the Plaintiff with her admitted full signatures in Ext.-C and Ext.-S. The said application was rejected vide order dated 16th August, 2017 (Annexure-6). Assailing the same, present Petitioner preferred CMP No.972 of 2014, which was disposed of on 3rd January, 2017, with an Page 1 of 5 // 2 // observation that if a petition is filed for sending the documents to the handwriting expert, the same shall be considered in accordance with law without being influenced by the order passed by this Court. Accordingly, the Defendant Nos.1 and 2 filed a fresh application under Order XXVI Rule-10-A CPC (Annexure-5). But, learned trial Court rejected the petition vide order dated 16th August, 2017. Assailing the same, the Petitioner preferred CMP No.1127 of 2017, which was disposed of on 27th April, 2022 (Annexure-7) with the following direction:- “2. Mr. Mishra, learned counsel for the Petitioner reading the impugned order submitted that there is misreading of the undertaking of the submission of the defendant counsel and Petitioner’s intention has not been carefully taken and in the result there is defective order. For the opinion of this Court that if the defendant- Petitioner had any other desire and there has been wrong noting on its submission, for the settled position of law it is the same court which needs to correct the mistake, if any, committed by it and any recording contrary to the intention of the party. Mr. Mishra, learned counsel for the Petitioner wants to have its option to approach the very same Court. This Court in this contingency, finds, the defendant should get such opportunity. In the result, this Court declining to interfere in the impugned order permits the Petitioner to move for clarification, if any, involving the impugned order and such exercise be conducted involving the plaintiff and by completing the entire exercise within two month. 3(sic). The C.M.P. stands disposed of with the above observation.” Thus, learned trial Court, adjudicated the petition afresh and passed the impugned order under Annexure-10. It is his submission that contentions of the Defendant Nos.1 and 2 to the effect that initials are sufficient for comparison with Ext.C/1, the full signature of the Plaintiff and it is possible to ascertain that all initials on Ext. ‘C’, was of the Plaintiff. But, learned trial Court did not accept the plea on the finding that usually Page 2 of 5 // 3 // handwriting expert compares the handwriting by taking note of the pattern of writing containing more than one letter. But there is only one letter in such initials in controversy, which is not possible to be compared with the full signature of the Plaintiff. Accordingly, he rejected the petition. It is his submission that by making observation and rejecting an application, the Court has acted as an expert, which is not illegal in view of the observation of this Court in the case of Shruti Das and another Vs. Prof. Dr. Sidharth Das, reported in 2016 (I) ILR-CUT- 1257, wherein, this Court has observed as follows; “5………….. Learned Civil Judge is not an expert to compare the signature and reach at a conclusion with regard to genuineness of the signature of the testator. The report of the handwriting expert is required for that purpose which comes within the meaning of scientific investigation under Order 26 Rule 10-A of CPC. Thus, duty is cast on the Court to issue a Commission to the handwriting expert directing him to enquire into the question with regard to genuineness of the signature on the Will and report thereon to the Court. This Court in the case of Natabar Behera Vs. Batakrishna Das, reported in AIR 1987 Orissa 7 has held that report of the handwriting expert scientific investigation. Thus, the provision provided under Order 26 Rule 10-A of CPC is applicable to such a case. In order to ascertain the genuineness of the signatures of late Dr. Bikram Das on the Will (Ext. 2/c) r, the same requires to be compared with his admitted and contemporaneous signature. It is stated at the Bar, Ext. 7, i.e., lease deed dated 28.10.2004 is a contemporaneous document in which Ext. 7/a to 7/j are the admitted signatures of late Dr. Bikram Das. Thus, there is no difficulty in comparing the signature of late Dr. Bikram Das available in Ext. 7 with that available in Ext. 2/c. the meaning of comes within He also relied upon a decision in the case of M/s Survika Distributors Pvt. Ltd. & another Vs. M/s S.R.Retail Zone Pvt. Page 3 of 5 // 4 // Ltd., reported in 2018 (Supp.-I) OLR 1075, in which it is held as under:- therein with the accused persons. The “Similarly, it is contended that the signatures appearing as recipients of the notices in the postal ADs Exts.9/1 and 9/2 are not that of the accused persons and the accused persons are residing at Keonjhar and somebody else has put their signatures. In view of the stand taken, it was very much necessary to send Exts.9/1 and 9/2 to the handwriting expert for comparison of the admitted signatures appearing signatures of learned Magistrate seems not to have kept the valuable purpose behind the filing of the petition for sending the exhibits to the handwriting expert. The observation of the learned Magistrate that sending of the exhibits to the handwriting expert will no way be helpful to the Court for proper adjudication of the dispute is a pre- determination of the issues involved and therefore, I am of the view that the impugned order dated 06.01.2012 passed by the learned S.D.J.M., Bhubaneswar is not sustainable in the eye of law.” He, therefore, prays for setting aside the impugned order and to direct learned trial Court to send the aforesaid documents for scientific investigation. 4. Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of record, it appears that assailing rejection of the application under Order XXVI Rule 10-A CPC, the Petitioner had moved this Court in CMP No.1127 of 2017, and this Court, vide order dated 27th April, 2022 (Annexure-7), while declining to interfere with the impugned order, disposed of the CMP to approach the very same Court for clarification, if any, in the observation made in the impugned order. Thus, learned trial Court had no scope again to delve into merit of the application filed under Order XXVI Rule 10-A CPC. 5. It further appears that, vide order dated 11th March, 2022, Defendants were given last chance to adduce further Page 4 of 5 // 5 // evidence in the matter, but without adducing any further evidence, petition under Order XXVI Rule 10-A CPC was moved when the matter was posted for argument. Mr. Udgata, learned counsel also placed reliance upon a decision in the case of M/s Janchaitanya Housing Ltd., Ameerpet Vs. M/s Divya Financiers, reported in AIR 2008 Andhra Pradesh 163 and submits that delay cannot be a ground to reject an application under Order XXVI Rule 10-A CPC. The same has to be left open to discretion of Court for exercising such discretion when exigencies so demand depending upon the facts and circumstances of each case. Such a plea is not acceptable, as learned trial Court had no scope to delve into the merit of the petition filed under Order XXVI Rule 10-A CPC, in view of the order passed in CMP No. 1127 of 2017. Thus, the case law relied upon by learned counsel for the Petitioner is of no assistance to him. In that view of the matter, this Court is of the considered opinion that no ground is made out to interfere with the impugned order. 6. Accordingly, the CMP is dismissed for being devoid of any merit. (K.R. Mohapatra) Judge s.s.satapathy Page 5 of 5