1 wp-3828-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 3828 OF 2010 Shri Ashok Kashinath Salade, ) Deceased through his legal heirs and ) reprsentatives: ) 1A Shri Manoj Ashok Salade, ) Age 28 years, ) 1B Shri Bapu Ashok Salade ) Age 24 years, ) 1C Ms. Sonia Ashok Salade, ) Age 26 years. ) 1D Smt. Mangala w/o Ashok Salade ) Age: 50 years. ) Occ: Business, R/at Pimpalgaon (B), ) Dagu Nana More Nagar, Juna Agra Road, ) Taluka Niphad, District Nashik. ).. Petitioner (Orig.Deft.) Vs. Shri Rangnath Laxman Wagh, ) Age: 84 years, Occ: Agriculture, ) R/o Nashik, Behind the Animal ) Dispensary, Gangapur Road, Taluka ) and District Nashik. )..Respondent (Org. Plaintiff) Mr. Rameshwar Gite,Advocate, for the petitioner Mr.S.M.Gorwadkar,Advocate for the respondent. CORAM: J.H.BHATIA,J. DATE : 5th October, 2010. JUDGMENT: 2 wp-3828-10.sxw 1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2. The respondent filed Special Civil Suit No.47 of 2005 for recovery of Rs.15 lakh from the original defendant. He also pleaded that the defendant had issued the cheques for Rs.15 lakh which was dishonoured giving cause of action for filing the suit. The defendant filed the written statement no 24.1.2006 denying that he had issued the cheques for payment of the amount. He also denied his signature on the cheques. After having filed the written statement, original defendant expired and his L.Rs. who are the present petitioners were brought on record. They filed additional written statement on 2.4.2007 reiterating that the original defendant had issues the cheques and signature on it. After the evidence of the plaintiff commenced, the defendant moved an application Ex.43 to refer the cheques to the handwriting expert to ascertain the genuineness or otherwise of the signatures of the deceased defendant on the cheques. That application was rejected by the trial Court by the impugned order dated 19.3.2010. 3. On hearing the learned Counsel for the parties and perusal of the pleadings, it is clear that the defendant had unequivocally taken a plea that he had not issued the cheques in question nor the cheques bear his signature. Same plea 3 wp-3828-10.sxw was taken by his legal heirs. Issue No.1 was framed which required the plaintiff to prove that the defendant had issued the two cheques for payment of the amount. Whether the cheques were issued by the defendant or not has to be proved. In view of the pleadings of the parties, the issue arises whether the cheques were signed by the defendant or not. Even though there was a delay of about 3-4 years in moving an application for referring the document to handwriting expert, it was, in fact, necessary for just and correct position in the matter. Evidence of the parties is not completed. Therefore, no prejudice would have been caused to the parties if the application to refer the documents to the handwriting expert would have been allowed. In my considered opinion, the impugned order is not correct and needs to be interfered with. 4. Therefore, in the interest of justice, the petition is allowed. The impugned order is set aside. The trial Court is hereby directed to refer the concerned cheques with admitted signatures of the deceased defendant for comparison and report from handwriting expert. The defendant shall initially be required to pay cost of the handwriting expert. Rule made absolute accordingly. (J.H.BHATIA,J.)