1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6663 OF 2008 Laxman s/o Namdeorao Nagare Age 58 years, Occ. Contractor R/o. “Amruta Niwas”, Adarshnagar, at and post Supra (Parner), Tq. Parner, Dist. Ahmednagar ...Petitioner Versus Annasaheb s/o Narharrao Kulkarni Age 60 years, Occ. Agriculture R/o Nitrud, Tal. Majalgaon, District Beed ...Respondent ..... Mr. A.B. Gatne, advocate for the petitioner Mr. H.T. Joshi, advocate for respondent ..... CORAM: S. S. SHINDE, J. DATED: 25TH SEPTEMBER, 2009 JUDGMENT:- 1. Rule. Rule made returnable forthwith. By consent of learned counsel for the parties, the petition is heard finally. 2 This petition is directed against the order dated 4.7.2008 passed by the learned C.J.S.D. Beed below Exh.17 in Special Civil Suit No. 6 of 2007. thereby declining the prayer of the petitioner to send the cheques to the hand writing expert. 2 3 Learned counsel appearing for the petitioner submitted that when the cheques were handed over to the plaintiff in the year 1999 with his signature, by sending those cheques to the hand writing expert the petitioner wish to have experts opinion on record so far age of the ink is concerned and the remaining portion of the cheque filled in by handwriting. Therefore, learned counsel would submit that the whole controversy in the suit can be put to an end if the hand writing experts opinion is received by the court. He further submitted that if the prayer of the petitioner is allowed then the whole controversy involved in the suit can be set at rest. Learned counsel in support of his contention relied on reported judgment of the Apex Court in the case of Thiruvengada Pillai Vs. Navaneethammal & Anr reported in AIR 1008 SC 1541. Learned counsel invited my attention to para 15 and 16 of the said judgment and submitted that it would be in the interest of justice to send the cheques for handwriting expert to know about the age of the ink as well as other portion filled in by handwriting, to set at rest the controversy involved in the suit, therefore, the learned counsel would submit that the writ petition be allowed. 4 On the contrary, learned counsel appearing for the respondent submitted that the court has not totally rejected the application of the petitioner, as per the provisions of section 45 of the Indian Evidence 3 Act. The court has not formed any opinion and it will be open for the petitioner to file an application at an appropriate stage to call for hand writing experts opinion. According to the learned counsel, on plain reading of the provisions of Section 45 of the Indian Evidence Act, the court has to form opinion and then only hand writing expert’s opinion is necessary to be called. Learned counsel further invited my attention to the affidavit in reply and submitted that the writ petition is devoid of any merits and the same deserves to be dismissed. In support of his contention learned counsel for the respondent has placed reliance on the judgment of Andhra Pradesh High Court in the case of Sri Vijayalaxmi Agencies, Nandyal, Kurnool District & Ors. Vs. State of A.P. and Anr. reported in 2006 ALL M.R. (Cri.) Journal 251 (Andhra Pradesh High Court) and more particularly para 2 of the said judgment and submitted that unless the evidence is completed, it is not necessary to send the cheques for hand writing experts opinion. The sum and substance of his argument is that at this stage, it is not necessary to send the cheques for opinion of the hand writing expert at this premature stage of the suit only when the court formed an opinion then only the petitioner is entitled for making prayer to send the cheques for handwriting expert's opinion. 5 After hearing counsel for both the parties and upon perusal of the pleading in the petition and the annexures thereto, I am of the 4 considered view that in the facts and circumstances of this case, to resolve the controversy involved in the suit at the earliest stage, the trial court ought to have allowed the application filed by the petitioner to send the cheques to the hand writing expert. Once it is admitted by the petitioner that the cheques are signed by the present petitioner in the year 1999 and those are already handed over to the plaintiff- respondent herein, the question remains to be decided is only about the age of the ink and who has filled in other portion of the cheque. If the hand writing expert’s opinion is received at the earliest, it will be easy to resolve the controversy involved in the suit. If it is expected that the controversy involved in the matter is resolved at the earliest, then in that case, in my view, the trial court need not wait till the last moment and put the parties in difficult situation. I find considerable substance in the arguments advanced by the counsel for the petitioner, as he has rightly placed reliance on the decision of the Hon'ble Supreme Court in the case of Thiruvengada Pillai (supra). Though the learned counsel for the respondent has placed reliance on the judgment of Andhra Pradesh High Court (supra). On perusal of para 2 of the said judgment, it appears that the facts of that case were different than the facts of the case in hand. In my opinion, the controversy involved in the suit can be very well adjudicated at the earliest if the hand wiring experts opinion is received by the concerned trial court. 5 6 In view of the above circumstances, writ petition is allowed. Rule is made absolute in the above terms. Trial court is directed to send the cheques to the hand writing expert within 15 days from the date of receipt of this order. *****