1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 2503/2007 Vikrant Krishnarao Deo ..vs.. Smt. Pranoti wd/o Pradeep Deo -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- CORAM: R. V. MORE, J. DATED : 15 th February, 2008 1. Heard Mr. Choube, learned counsel for the petitioner and Mr. Patrikar, learned counsel for the respondent. 2. The petitioner is plaintiff and the respondent is widow of original defendant in Regular Civil Suit No. 396/1998, which is filed for declaration of Will deed executed in favour of deceased husband of respondent as illegal, null and void and obtained fraudulently. The contention of the petitioner that the testator namely mother of deceased husband of respondent No. 1 always used to sign in English, however, the Will deed is signed in Marathi. 2 3. The petitioner by filing application at Exh.-51 on 17.04.2002 prayed for appointment of handwriting expert as a Commissioner to obtain opinion in respect of the signatures over the Will Deedd and the specimen signatures available with the Maharashtra State Co- Operative Bank Limited, Dharampeth Branch, Nagpur. This application filed by the petitioner came to be rejected by the trial Court on 15.07.2002, however, the petitioner was given liberty to take steps for procuring signatures of his deceased mother on record. 4. The petitioner, in pursuance of this order, procured signature of his mother from the Maharashtra State Co-Operative Bank Limited, Dharampeth Branch, Nagpur and placed on record. The petitioner, thereafter, filed application at Exh.-108 for taking opinion of handwriting expert with regard to the signature on the Will deed and comparing with specimen signature card of the aforesaid Bank. This application was opposed by the respondent. The learned trial Judge, by the impugned 3 order rejected the petitioner's application on the ground that the petitioner's similar application at Exh.-51 was already rejected. 5. After hearing learned counsel for the respective parties and after going through the impugned order, I am of the opinion that the matter deserves to be remanded back for decision afresh on the petitioner's application at Exh.108. The learned trial Judge rejected the petitioner's application on the sole ground that similar application at Exh.-51 is rejected. The application at Exh.-51 was made for appointment of Commissioner to compare the signature from specimen signature available with the Bank i.e. Maharashtra State Co-Operative Bank Limited, Dharampeth, Nagpur with signature on the Will. This application was rejected by the trial Court on the ground that Commissioner can only be appointed for scientific investigation and the petitioner was not claiming investigation. In addition to this, the petitioner was given liberty to take steps for procuring signature of his 4 deceased mother on record. As stated above, the petitioner has already procured signature from Maharashtra State Co-Operative Bank Limited, Dharampeth, Nagpur and the document is placed on record of the suit and thereafter the present application is filed for taking opinion of the handwriting expert. 6. The petitioner was given liberty to procure the signature of his mother. The trial Court failed to consider the impact of this liberty while passing the impugned order. The trial Court rejected the application only on the ground that similar application at Exh.-51 was rejected. However, the application at Exh.-51 was for appointment of the Court Commissioner and the Court refused to appoint Court Commissioner on the ground that the Order XXVI Rule 10 of the Code of Civil Procedure empowers the Court to appoint Commissioner for scientific investigation. In addition to above, prima facie, I am of the opinion that the principle of res judicata is not applicable in each and every interlocutory order. The trial Court failed to 5 appreciate the present controversy in this regard. 7. In the facts and circumstances mentioned above, I dispose of the petition by passing following order (i) The impugned order dated 07.03.2007 passed below Exh.-108 in Regular Civil Suit No. 386/1998 is quashed and set aside. (ii) The matter is remanded back to the learned 3rd Jt. Civil Judge Junior Division Nagpur to decide the petitioner's application at Exh. 108 afresh on merits in the light of observations made in this order. (iii) The trial Court shall dispose of the application and thereafter suit, as expeditiously as possible. (iv) The writ petition stands disposed of accordingly with no order as to costs. JUDGE kahale