1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6547 OF 2009 Ganesh Eknathrao Patange ..Petitioner Versus Kondiba Ramrao Kalyankar ..Respondent ... Advocates appearing for : Petitioner : Shri Balaji Shinde h/f Shri V.P.Latange and Respondent : Shri V.S.Kadam. ... CORAM : S.B.DESHMUKH,J. Dated : 2.2.2010 PER COURT :- 1. Heard learned counsel for the respective parties extensively. 2. Rule. Rule made returnable forthwith by consent. 3. This petition challenges the order passed by the learned Civil Judge (Senior Division), Hingoli below Exhibits 49 and 51 in Special Civil Suit No.38 of 2005. 4. It is not in dispute that the plaintiffs had filed the said suit seeking specific performance of the contract. Exhibit "A" is the copy of plaint. Plaintiff seeks decree of specific performance and possession of the suit property or in the alternate, any other relief, which is just and proper. This suit was filed on 21.10.2005. 2 5. The defendant after entering appearance filed Written Statement Exhibit 19, along with the counter claim. 6. It is further not in dispute that the defendant filed an application at Exhibit 49 in the said suit on 5.7.2007. The prayer made in this application by the defendant is to refer receipt dt.16.9.2004 to Government Forensic Science Department, CID, Aurangabad or any private agency for inspection or examination of the signature on the backside as executant of the said receipt and report of the same be called for. This application has been objected by the plaintiff by filing say on 31.7.2007. Record further shows that defendant again filed an application Exhibit 51 in the trial Court on 14.8.2007 repeating the earlier request made by application Exhibit 49. Prayer made is that this application be read in continuation of the earlier application Exhibit 49. 7. Learned counsel for the petitioner submits that the order impugned is per se illegal. If the defendant wishes to raise a ground or contention that the disputed receipt is not signed by him, in that circumstance, this question can be resolved in favour of the defendant by adducing appropriate evidence. According to the learned counsel for the petitioner, whether a person has signed the disputed document or not is a matter of evidence. Party concerned can lead an appropriate evidence. There is no question of referring the said document to hand-writing expert. He relied upon the judgment of the Honourable Supreme Court in 3 the case of Gulzar Ali Vs. State of H.P. [ (1998) 2 SCC 192], which is arising out of the criminal offence. According to the learned counsel for the petitioner, paragraph No.9 of the said judgment is relevant. From the judgment, it appears that three appellants in that case, allegedly committed a murder of one Tarachand, who was working in the jungle. This crime was committed with the weapons like gandasi and churra (cutting weapons). It was not the case of the direct evidence. In other words, the case was based on the circumstantial evidence. On behalf of prosecution, some letters were produced on record and were relied upon. Hand-writing expert Shri Jain was examined. At the relevant time, he was acting as a Government Examiner. After comparing the hand-writing of the said letter, he opined that both letters were written by the accused. On this background, the Honourable Supreme Court, in paragraph No.9 has referred to Section 67 of the Evidence Act and observed that the handwriting must be proved to be that of the person concerned. In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. I have considered the ratio of this judgment, which, in my view does not apply to the facts of the present case. 8. Another striking feature of the case on hand is that though the defendant filed an application seeking reference of the disputed document to the expert, the Court concerned inadvertently did not decide the said application and it was pending. Even otherwise, the order impugned, in my view, cannot be said to be per se illegal. If we refer to section 73 of the Evidence Act, it is true that the Court may compare the 4 disputed hand-writing or signature of the party concerned with its own naked eyes but the facts of the present case, in my view, are not so compelling that the learned Judge should have exercised such discretion under section 73 of the Evidence Act. In case of disputed hand-writing and/or signature always it is a safe course to have an opinion of the expert on record and said is formally proved. Such person can be examined on behalf of the party relying on his evidence and he can be cross-examined by the party against whom he tenders his opinion. I am not entering into legality and/or opinion expressed by the expert in the report. Suffice to say that the order impugned in this Writ Petition is legal, proper and cannot be said to be perverse and quashed and set aside. 9. In the result, Writ Petition without being substance, is dismissed. Rule stands discharged. No order as to costs. ( S.B.DESHMUKH, J.) ... akl