1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3794/2009 Mainabai Bhikan Phule through LR s Sandu Bhikan Phuke and others. .. Petitioners Versus Kakasaheb Sandu Phuke and another .. Respondent. --- Mr. S.M. Kulkarni, Advocate holding for Mr. Gadegaonkar, Advocate for petitioner. CORAM : B.R. GAVAI, J. DATE : 24th June, 2009. ORAL ORDER :- 1] By way of present petition, the petitioner challenges the order dated 23rd February, 2009 vide which the application filed by the respondent/plaintiffs for sending the disputed documents/copy of sale deed and admitted documents i.e. Partition Deed, to a Handwriting Expert for comparison and ascertain whether both the thumb impressions are made by deceased Mainabai or not,came to be rejected. 2 2] The respondents/plaintiffs have filed a suit for declaration that the plaintiffs are owners of the suit property. The claim of the plaintiffs is based upon the sale deed executed by mother of the defendants namely Mainabai in their favour. The claim of the plaintiffs is denied by the defendants/petitioners. According to the petitioners such a sale deed has never been executed by deceased Mainabai. According to the plaintiffs partition deed is already executed by deceased Mainabai partitioning the house property in favour of her 5 children. 3] After closure of the evidence, an application came to be filed by the respondents plaintiffs for referring the aforesaid sale deed and the partition deed for examination by the Handwriting Expert so as to examine whether the thumb impression of Mainabai on the sale deed maches with the thumb impression on the partition deed or not. The said application is allowed. Hence, the present petition. 4] Shri Kulkarni, learned counsel for the petitioner submits that the learned trial court has grossly erred in allowing the application at the fag end of the trial and that too, when the attesting witnesses have not supported the case of the plaintiffs. He further submits that allowing the application would amount to permitting evidence to be collected in support of the case of the plaintiffs at the fag end of trial. He further submits that even the application made for referring the documents was not a reasoned application. 5] Perusal of the impugned order reveals that the partition deed on which reliance is placed by the defendant is admitted by the plaintiffs. However, the defendants have denied the thumb impression of deceased 3 Mainabai on the sale deed in question. It has therefore been found by the learned trial court that if both the documents are sent to the Handwriting Expert for comparison, the same would enable the court to arrive at a just decision. It has further been found that if the documents are sent for comparison no prejudice would be caused to the defendant. In any case, the learned trial court has saddled cost of Rs. 1,000/- on the plaintiffs payable to the defendants in order to compensate the prejudice caused to them. 6] Perusal of the order further reveals that the learned trial court has given cogent and sound reasons while allowing the application. The learned trial court has further found that if report of the Handwriting Expert on comparison of both the documents is available to the court, it will enable the court to decide the real controversy in the matter. 7] No perversity could be found with the approach adopted by the learned trial court so as to warrant interference. Hence, the writ petition is summarily rejected. [B.R. GAVAI,J.] Grt/-