Mahipal Singh & Anr. v. This matter is taken up through hybrid mode

ORDER 22.02.2023 This matter is taken up through hybrid mode. Order dated 6th January, 2023 (Annexure-7) passed by learned Civil Judge (Senior Division), Koraput in T.S. No.19 of 2021 is under challenge in this CMP, whereby an application filed by the Petitioners Order XXVI Rule 10 C.P.C. read with Section 45 of the Evidence Act, 1872 to send the disputed Wills dated 17th November, 1977 and 19th February, 1983 to the handwriting expert for comparison of LTI of Defendant No.1 (Moti Bai) with her admitted LTI and to report, has been rejected.

Earlier similar nature of the application was filed by the Plaintiffs-Petitioners, which was rejected by learned trial Court. As per the direction of this Court, the LTIs were sent to the handwriting expert, i.e. State Finger Print Bureau, Rasulgarh, Bhubaneswar for comparison. A report was submitted on 20th October, 2022 (Annexure-4) with the following opinion. “The disputed LTI marked ‘QI’ appearing against the name of Moti Bai on the Original WILL BEQUETHING HOUSE PROPERTY dtd 19.02.1983 is though partial, // 2 // blurred & smudged but reveals required numbers of clear ridge details for comparison and opinion. But the Admitted LTI of Moti Bai marked ‘S’ on Vakalatnama dtd 09.05.1995 (in the court of Sub-Judge, Jeypore) is partial, faint, smudged and devoid of required numbers of clear ridge details for comparison and opinion with disputed LTI marked ‘QI’.

It is submitted by Mr. Panigrahi, learned counsel for the Petitioners that LTIs available in the disputed Wills though partial, blurred and smudged, but it was opined that required numbers of ridge details for comparison and opinion are available. Thus, the Petitioners filed another application to send the said Wills for comparison with the admitted LTIs of Defendant No.1 (Moti Bai) under Exts.5 and 20. But learned trial Court on a misconception that LTIs available in the disputed Wills are not suitable for comparison, rejected the application. It was further observed that the suit is at the stage of argument. It is his submission that comparison of LTIs in the disputed Wills are necessary for just adjudication of the suit. Hence, the same should be sent for comparison with the admitted LTIs of Moti Bai available in Exts.5 and 20, which were not sent earlier for comparison with the disputed Wills.

Considering the submission made by Mr. Panigrahi, learned counsel for the Petitioners, this Court finds that the main ground on which the application under Order XXVI Rule 10 C.P.C. read with Section 45 of the Evidence Act, 1872 was rejected was that LTIs available on the disputed Wills were not suitable for comparison. But, on perusal of the opinion of the handwriting expert dated 20th October, 2022 under Annexure-4, it appears that required numbers of ridge details for comparison // 3 // and opinion are available in the LTIs available on the said Wills. Hence, this Court feels that the petition for sending the disputed Wills for comparison of LTIs requires fresh consideration. In that view of the matter, this Court keeping in mind the age of the suit feels that no fruitful purpose will be served by issuing notice to the Opposite Parties and keeping the matter pending before this Court awaiting response from the Opposite Parties. However, it can be relooked by learned trial Court, if an application is moved in that respect.

Accordingly, the CMP is disposed of with an observation that in the event the Petitioners file an application to recall the order dated 6th January, 2023 passed in C.S. No.19 of 2001 (Annexure-7), learned trial court shall do well to consider the same on its own merit, giving opportunity of hearing to the parties concerned.

It is made clear that this Court has not expressed any opinion on the merits of the submission made by learned counsel for the Petitioners but has only given an opportunity to the Petitioners to file an application to recall the impugned order, being prima facie satisfied with the submission made by learned counsel for the Petitioners, which is subject to adjudication by learned trial Court. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge