The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2023 10:23:39 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17051 OF 2013 Chandrasekhar Pradhan Petitioner Mr. H.N. Mohapatra, Advocate …. Sidheswar Swain and another -versus- …. Opp. Parties None CORAM: JUSTICE K.R. MOHAPATRA Order No. 6. 1.
Decision
ORDER 31.08.2023 This matter is taken up through hybrid mode. 2. Order dated 17th July, 2013 (Annexure-4) passed by learned Civil Judge (Junior Division), Puri in C.S. No.165 of 2012 is under challenge in this writ petition, whereby an application under Order XXVI Rule 10-A CPC filed by the Plaintiff-Petitioner to send Ext.1 to the handwriting expert to compare the signature of Defendant No.1 appearing therein with his admitted signature, has been rejected. 3. It is submitted by Mr. Mohapatra, learned counsel that the Petitioner as Plaintiff filed the suit for specific performance of contract. Ext.1 is the agreement for sale, which has been marked without objection. However, during cross-examination of D.W.1, he blatantly denied the execution of the agreement dated 20th November, 1995 and also denied his signature on the same. Thus, after closure of evidence of both the parties, the Plaintiff-Petitioner filed an application under Order XXVI Rule 10-A CPC to send Ext.1 to the handwriting expert to compare the signature of the Defendant No.1 appearing there in with his Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2023 10:23:39 // 2 // admitted signature and submit a report. The said application was rejected on the ground that evidence available on record is sufficient to take a decision in the suit. Further if Ext.1 would be send to the handwriting expert, it will seriously prejudice the Defendants and cause delay in disposal of the suit. 4. Mr. Mohapatra, learned counsel for the Petitioner submits that Ext.1 is the basis on which the suit has been filed. When Defendant No.1, who was one of the executants, denied to have signed the document so also the execution of the document itself, the same should be send to the handwriting expert to compare the signature appearing therein with the admitted signature of Defendant No.1 for a just decision in the suit. It is his submission that a petition under Order XXVI Rule 10-A CPC can be filed at any stage of the suit. It is for the Court to consider as to whether the document should be send to the handwriting expert for his scientific opinion or not. 5. In support of his case, he relied upon the case of Bhagirati Sahu and others –v- Akapati Bhaskar Patra, reported in AIR 2001 Ori 185, wherein it is held as under: “……The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudene and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other and the prudent course is to obtain the opinion and assistance of an expert." Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2023 10:23:39 // 3 // He further submits that the Court should not take the risk of comparing the signature appearing on the Ext.1 with that of the admitted signature of Defendant No.1. It should always adopt a safer and scientific procedure to compare the signature, which is necessary for just adjudication of the suit. While passing the impugned order, the aforesaid aspect was lost sight of by learned trial Court. Hence, this writ petition has been filed. 6. Although the Opposite Parties represented through learned counsel, none appears for them at the time of call. 7. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that during cross-examination, Defendant No.1 had denied the signature appearing on Ext.1 to be made by him. He also denied the execution of agreement on the basis of which the suit was filed. On perusal of the petition filed under Order XXVI Rule 10-A CPC under Annexure-3, it appears that although the Defendants denied to have signed on Ext.1, but in his cross-examination has stated that he has no objection, if it is sent to the hand writing expert for comparison. 8. Thus, taking into consideration the submission made by learned counsel for the Petitioner, ratio decided in Bhagirati Sahu and others (supra) together with the fact that the suit is based upon execution of the agreement dated 20th November, 1995 (Ext.1), this Court is of the considered opinion that it should have been sent to the handwriting expert of his opinion. Delay in disposal of the suit should not alone be a ground to deny the legitimate prayer made by the Plaintiff-Petitioner. It Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Sep-2023 10:23:39 // 4 // further appears that the grounds on which the petition under Order XXVI Rule 10-A CPC is rejected are not sustainable in view of the ratio decided in Bhagirati Sahu and others (supra). 9. In view of the above, this Court sets aside the order under Annexure-4 and directs that Ext.1 shall be send to the SFSL, Odisha for comparison of signature of Defendant No.1 with his admitted signature available on the case record. The Plaintiff- Petitioner shall cooperate with learned trial Court for compliance of this order. 10. Accordingly, the writ petition is disposed of with the aforesaid observation and direction. 11. Interim order dated 30th July, 2013 passed in Misc. Case No.15898 of 2013 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4