1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1223 OF 2009 M/s B.G.Sapre & Company & Anr. .. Petitioners Vs Technofour and ors. .. Respondents Mr. Manoj Gadkari, Advocate for the petitioners. Mr. S.S.Kanetkar, Advocate for Respondent no.1. Shri A.A.Joshi, for respondent no.11 CORAM : D.B.BHOSALE, J. DATE : 21/07/2009 PC: 1. Heard learned counsel for the parties. 2. Rule. Returnable forthwith. Counsel for respondent no.1 and respondent no.11 waives service. By consent of the parties, petition is taken up for final hearing. 3. By this writ petition under Article 227 of the Constitution of India, the petitioners-defendant nos 1 and 2 have impugned an order dated 4.10.2008 passed by the Civil Judge, Senior Division, Pune, rejecting their application at Exhibit 84 in Special Civil Suit No.1166 of 2004. The application was filed for sending the original agreement dated 21.9.1989 for determining T 2 the age of the ink of the signature and the writing on the stamp papers to Forensic Science Laboratory. 4. The plaintiffs filed a suit for specific performance of an agreement dated 21.9.1989. According to the plaintiffs, defendant no.1 had agreed to sell the suit property to plaintiff no.1 for Rs. 35 lacs. The plaintiff no.1 claims that he had paid an amount of Rs.1,01,000/-, by Pay Order dated 21.9.1989, as an earnest money at the time of execution of the agreement. Thereafter Rs.13,52,000/- were also paid by plaintiff no.1 to defendant no.1. However, according to the defendants, the aforesaid monies were paid by the plaintiff as financial aid and not either by way of earnest money or as a part payment pursuant to the agreement. The defendants have further contended that the plaintiff had obtained their signatures on the reverse of the stamp paper by way of security and that stamp paper was subsequently used for preparing the agreement dated 21.9.1989. In short, the case of the defendants is that the plaintiff had advanced the aforesaid amount by way of financial aid, which the defendants wanted at the relevant time to complete their another project, and not as a part payment in pursuance of the agreement. It is against this backdrop, an application at Exhibit-84 was filed by the defendants. The 3 application was opposed mainly on the ground that the age of ink cannot be determined on the basis of the writing relying upon the judgment of the High Court in Yash Pal Vs Kartar Singh, AIR 2003 Punjab and Haryana 344. 5. Mr. Gadkari, learned counsel for the petitioners, submitted that the observations made in Yash Pal’s case that the age of ink cannot be determined are not correct and he placed reliance upon the Judgment of the Supreme Court in T.Nagappa Vs Y.R.Murlidhar, 2008 ALL M.R (Cri) 1945 to contend that the Forensic Science Laboratory can determine the age of the ink of the signature and the writing on the agreement dated 21.9.1989. Mr.Kanetkar, on the other hand, placed heavy reliance on the judgment, which was also cited before the court below, in Yash Pal’s case and submitted that the age of the ink cannot be determined on the basis of the writing and if the document is sent, as prayed, it would create further confusion and no useful purpose would be served by allowing such application. In T.Nagappa Vs. Y.R.Murlidhar, the Supreme Court allowed the prayer for referring the document to the expert to find out whether the writings appearing in the cheque and on the front page was the writing written on the same day and time when the said cheque was signed. In other words, the Supreme Court directed the Forensic Science Laboratory to find 4 out whether the age of the writings on the front page of the document was the same as that of the signature on the cheque. It is not possible to assume that such test cannot be conducted and that Forensic Science Laboratory cannot determine the age of the signature and the writing. In other words, it is not possible to hold, at this stage, that such test cannot be conducted to find out the age of the ink as observed in Yash Pal Vs. Kartar Singh’s case. With the advance technology, it may be possible and it is only Forensic Science Laboratory can state whether such test is possible. If the opinion of the scientific investigation is going to help in extracting the truth and determining the controversy raised before the court, then in my opinion, such investigation can be permitted. In my opinion, the court below ought to have allowed the application. In the circumstances, this petition is allowed. However, in my opinion, it is not necessary to have any expert opinion on the question other than the following. Whether the age of the ink of the writing on the agreement dated 21.9.1989 is same as that of the admitted signature of the petitioner appearing on the reverse side of the agreement/stamp papers. In other words, whether it is possible to find out the age of the writing and of the signature on the document. This court is informed that presently the original 5 document is lying with the Joint District Registrar, Collector of Stamps, Pune. The trial Court is directed to issue appropriate directions to the Joint District Registrar, Pune, to forward the said document within two weeks from today to the Central Forensic Science Laboratory at Romant Puram, Hyderabad along with a copy of this order for determining the age of the signature and the writing on the document. The Central Forensic Science Laboratory shall forward their report within a period of four weeks from the date of receipt of the document. It is made clear that if for any reason it is not possible for the said Laboratory to conduct such test and determine the age of the signature and the writing, they should return the document with their report at the earliest. The trial Court shall proceed to hear the suit on receipt of the report and shall dispose of the same expeditiously. Rule is accordingly disposed of. (D. B. Bhosale, J.) 6