The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Feb-2024 15:16:59 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1507 of 2023 Rajani Mallick Petitioner Mr. Amit Prasad Bose, Advocate .... -versus- Jyostna Mallick @ Samantaray and others …. Opp. Parties
Legal Reasoning
Mr. Durga Prasad S. Mallick, Advocate (For Opposite Party Nos.1, 2, 5 and 6) CORAM: JUSTICE K.R. MOHAPATRA Order No. 1.
Decision
ORDER 31.01.2024 1. 2. This matter is taken up through hybrid mode. Order dated 27th September, 2023 (Annexure-1) passed by learned Civil Judge (Senior Division), Bhadrak in CS No.286 of 2022 is under challenge in this CMP, whereby an application filed by the Plaintiff/Petitioner to send the Will in question to Central Forensic Science Laboratory (for short, ‘CFSL’), New Delhi or Hyderabad for further examination of the signature of Testator has been rejected. 3. Mr. Bose, learned counsel for the Petitioner submits that CS No.286 of 2022 has been filed for probate of the Will executed by late Madhabananda Mallik in favour of the Petitioner. After death of the Testator, the Petitioner filed a probate proceeding, which was transferred to learned Civil Judge (Senior Division), Bhadrak for adjudication being contentious. During pendency of CS No.286 of 2022, an application was filed by Defendant No.6 to send the Will to State Forensic Science Laboratory, Odisha, Bhubaneswar (for short ‘SFSL’) to examine Page 1 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Feb-2024 15:16:59 // 2 // the genuineness of the signatures of the Testator in the Will. Learned trial Court, vide order dated 28th October, 2022 (Annexure-5) sent the Will to SFSL to examine “whether the signature of the testator of the Madhabananda Mallick on the Will are genuine, i.e., printed or scanned by computer or written by pen.” After examination, the report was submitted stating that “The above-mentioned facts and all the writing characteristics reveals that the disputed signatures marked X-1 to X-5 are forged signatures and such types of forged signatures are generally produced by method of tracing by using transmitted light by using a single model signature.” Thereafter, the Defendant No.6 filed an application to summon the handwriting expert to be examined, which was allowed vide order dated 27th September, 2023. When the matter stood thus, the Petitioner filed a petition under Annexure-7 to send the Will either to CFSL, New Delhi or Hyderabad for further examination stating that the handwriting expert of SFSL, Bhubaneswar did not meet the query of the Court and did not answer the questionnaire made by the Court. The said application was disposed of vide order under Annexure-1, without passing any specific order on it. Hence, this CMP has been filed. 3.1 It is his submission that the Plaintiff/Petitioner does not object to the summoning of the handwriting expert for being examined by the Court in the suit, but the same would not be sufficient to explain the report vis-(cid:224)-vis the questionnaire made by the learned trial Court. In the facts and circumstances of the case, the Court could have waited till examination of the Page 2 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Feb-2024 15:16:59 // 3 // handwriting expert for consideration of the petition filed by the Petitioner to send the Will either to CFSL, New Delhi or Hyderabad. Without doing so, learned trial Court passed the impugned order by which the Petitioner becomes remediless. After examination of handwriting expert if it is found that the report is not in the light of the questionnaire made by learned trial Court then the Petitioner would not be in a position to seek for further remedy to send the document to any other Laboratory, i.e., CFSL, New Delhi or Hyderabad for further examination. In that view of the matter, he prays for setting aside the impugned order and to direct learned trial Court to consider the petition filed by the Petitioner afresh to send the document/Will for examination of signature of the testator to CFSL, New Delhi or Hyderabad after examination of the handwriting expert of the SFSL, Odisha, Bhubaneswar. 4. Mr. Mallick, learned counsel for contesting Opposite parties vehemently objects to the above. It is his submission that the petition is filed at a stage when the witness summoned by the Court was not examined. In essence, the Petitioner impliedly objects to the examination of handwriting expert of the SFSL, Odisha, Bhubaneswar. Further, in TRP(C) No.248 of 2021, this Court, vide order dated 12th April, 2022 while transferring the matter to learned Civil Judge (Senior Division), Bhadrak, directed to dispose of the aforesaid probate proceeding as expeditiously as possible, preferably within a period of six months from the date of the said order. It is further submitted that in order to get rid of the findings of SFSL, Bhubaneswar, such a Page 3 of 4 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 01-Feb-2024 15:16:59 // 4 // petition is designed to delay the proceeding and to harass these Opposite Parties by filing this CMP. It is his submission that the impugned order is reasoned one and learned trial Court discussing the matter in its entirety, has passed the impugned order, which warrants no interference. 5. Considering the submissions made by learned counsel for the parties, this Court finds that cause of action for sending the Will to CFSL either at New Delhi or Hyderabad has not arisen, as yet. When the learned trial Court has issued summons to the official of the SFSL, Odisha, Bhubaneswar to be examined in the matter, Petitioner should have waited till completion of examination of the said witnesses. 6. In view of the above, this Court, without interfering with the impugned order under Annexure-1, disposes of the CMP with an observation that if cause of action so arises the Petitioner may move an application to send the Will to CFSL either at New Delhi or Hyderabad after examination of the official of the SFSL, Odisha, Bhubaneswar. In that event, learned trial Court should consider the same on its own merit giving opportunity of hearing to the parties concerned. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4