IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17442 of 2011 Suresh Prasad Singh Versus Mukesh Singh ---------------------------------- 05. 13.12.2011 Heard the learned senior counsel, Mr. Devendra Kumar Sinha on behalf of the plaintiff-petitioner. It appears that in spite of service of notice on the sole respondent, he has not appeared. This application under Article 227 of the Constitution of India has been filed by the plaintiff- petitioner against the order dated 12.09.2008 passed by Civil Judge(Jr. Division), Sheikhpura in Eviction Suit No.4 of 2005 whereby the learned Court below rejected the application filed by the plaintiff-petitioner to mark the signature of Turanti Singh on the panchnama as an Exhibit. The learned senior counsel submitted that P.W.4 in paragraph 6 of his evidence has clearly identified the signature of Turanti Singh on the panchnama but at that time because of the clerical mistake, the signature identified by P.W.4 could not be marked. From perusal of the evidence of P.W.4 annexed as Annexure-3 of the writ application, it appears that at paragraph 6, P.W.4 has clearly stated that he identified the signature of Turanti Singh. However, the signature admittedly has not been marked. From perusal of the impugned order, it appears that the learned Court below rejected the application only 2 on the ground that this is eviction suit and, therefore, title is not going to be decided and moreover, it will not affect the petitioner’s case. In my opinion, when the witness has already identified the signature and because of mistake it has not been marked as an Exhibit, the Court below should have marked the same as Exhibit. So far the question that whether title will be decided or not is a matter that may be considered at the time of final hearing of the suit. Likewise, it will not affect the case of the plaintiff is concerned also, it is a matter that may be considered at the stage of final hearing. It further appears that on the same ground application was filed by the defendant- respondent and the receipt has been subsequently marked Exhibit on behalf of the defendant-respondent. Considering the above facts and circumstances of the case, as has been noticed by the Court below in the impugned order also, in my opinion, the learned Court below should have marked the signature as an Exhibit. However, the Court below on irrelevant ground rejected the application and thereby not exercised a jurisdiction vested in it by law. Thus, this writ application is allowed and the impugned order is set aside. The Court below is directed to mark the signature of Turanti Singh on panchnama as Exhibit. Saurabh (Mungeshwar Sahoo,J.)