**1** IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITIONs NOs.2398/2009 and 2401/2009 Bapu Bhau Patil (decd.), Babasaheb Vishnu Patil and others. ....Petitioners in WP 2398/09 Vishnu Bapu Patil (decd.), Laxmi Vishnu Patil and others. ….Petitioners in WP 2401/09 -VERSUS- Tukaram Yashwant Patil and others. ......Respondents in both WPs. ........... Mr.G.S.Godbole, Advocate i/b G.H.Keluskar, for the Petitioners. Mr.T.S.Ingale, Advocate for the Respondents Nos.1 to 8. ........... CORAM : A.S. OKA, J. Dated : 14th October, 2009. P.C. : 1 The submissions of the learned counsel appearing for the parties were heard on the earlier date. These petitions can be conveniently disposed of by a common order. 2 The Petitioners in Writ Petition No.2398/2009 are the original Defendants and the Respondents therein are the original Plaintiffs in Regular Civil Suit No.67/1999. As far as Writ Petition No. 2401/2009 is concerned, the Petitioners therein are the original Plaintiffs and the Respondents are the original Defendants in Regular Civil Suit No.75/1999. 3 Regular Civil Suit No.67/1999 was filed by the Respondents **2** for redemption of the mortgage which was allegedly executed on 06th November, 1982 by the deceased first Petitioner in Writ Petition No. 2398/2009. Another suit namely Regular Civil Suit No.75/1999 was filed by the Petitioners for specific performance of the alleged agreement to sale dated 22nd April, 1986. The case of the Petitioners is that the document dated 06th November, 1982 was of a conditional sale and it was not a mortgage. The Petitioners are relying upon an agreement for sale dated 22nd April, 1986 executed by Late Yeshwant (father of some of the Respondents) in favour of the deceased Vishnu (the deceased second Petitioner). 4 The challenge in Writ Petition No.2398/2009 is to an order dated 23rd January, 2009 passed by the Trial Court by which an application filed by the Petitioners praying for referring certain documents to the Handwriting Expert has been rejected. The subject matter of the other petition is an order rejecting similar application filed in the companion suit. The prayer made by the Petitioners in the suits was for forwarding the alleged deed of mortgage, the alleged agreement for sale and the alleged stamp receipt in the sum of Rs.7000/- being the earnest money, to the Handwriting Expert for the purpose of obtaining his opinion as to whether the thumb impressions and the signatures on the said documents were of the same persons. As stated earlier, the suits are in nature of cross-suits, one suit is for redemption of the alleged mortgage and the other is for specific performance of the alleged agreement for sale. As far as the order passed in R.C.S. No.67/1999 is concerned, the Trial Court observed that the agreement and receipt were not subject matter of the said suit and the said documents are subject matter of the companion suit filed by the Petitioners for specific performance of the agreement. In the companion suit, the Trial Court **3** observed that the Plaintiffs/Petitioners have already closed their evidence and thereafter, cross-examination of the first Defendant has proceeded. 5 The opposition of the learned counsel for the Respondents is on the ground that no attempt was made by the Petitioners to prove the disputed documents. He submitted that at the stage when the suits were fixed for recording of evidence of the Respondents, the Trial Court was justified in not entertaining the prayer made by the Petitioners. He submitted that no interference is called for with the impugned orders. 6 It must be noted here that while issuing notice on 05th August, 2009 this Court in paragraph No.1 of the order has observed thus:- “Apart from the submissions on merit, the learned counsel for the petitioners without prejudice to the rights and contentions of the petitioners in these petitions states that if permission is granted by the trial court to the handwriting expert appointed by the petitioners to inspect the disputed documents and to take photographs of the admitted handwritings and the disputed handwritings, the petitioners will obtain opinion of the said expert and will rely upon the said opinion. He states that in such event, the petitioners will examine the said handwriting expert as their own witness.” 7 It is true that the Petitioners could not have prayed for a direction of the Trial Court to forward the documents to Handwriting **4** Expert. It must be noted here that in the suit for redemption of mortgage filed by the Respondents, reliance has been placed by the Petitioners on the alleged agreement for sale and the receipt. In fact the defence of the Petitioners is based on the said documents. The suit filed by the Petitioners is based on those documents. According to the Respondents, the deceased first Petitioner has executed the deed of mortgage in favour of the deceased Yeshwant by making thumb impressions thereon. However, the Respondents are disputing the documents on which the Petitioners are relying upon. 8 While rejecting the applications, the Trial Court has taken very hyper-technical view of the matter. The issue regarding the proof and contents of the said documents is certainly the subject matter of both suits. The Petitioners desire to obtain an opinion of the Handwriting Expert on the said documents. It is true that the Trial Court could not have permitted the prayer made in the applications of sending the documents to the Handwriting Expert, but surely an opportunity cannot be denied to the Petitioners to obtain an opinion of their own Handwriting Expert. If the Petitioners obtain such opinion, it is obvious that they will have to prove said opinion in accordance with law. 9 If the Petitioners want to examine their own Handwriting Expert, they can always seek permission of the Trial Court to allow their Handwriting Expert to take photographs of the admitted and disputed documents in presence of an officer of the Court and thereafter, the Petitioners can obtain opinion of their Handwriting Expert and can file the same before the Court. It is for the Petitioners to prove the opinion. The evidenciary value of such opinion will be considered by the Trial Court in accordance with law. 10 The Trial Court has taken a hyper-technical view of the **5** matter and there was no reason for the Trial Court to deny opportunity to the Petitioners of obtaining opinion of their own Handwriting Expert. Hence, petition must succeed. 10 Hence, I pass the following order:- (1) The impugned orders are quashed and set aside. (2) On an application being made by the Petitioners, the Trial Court will permit the Handwriting Expert appointed by the Petitioners to visit the Court premises and to take out photographs of the relevant documents in presence of the officers of the Court nominated by the learned Trial Judge. (3) After obtaining opinion of the Handwriting Expert, it will be open for the Petitioners to produce the same before the Court and rely upon the same. The opinion of the Handwriting Expert shall be produced by the Petitioners within a period of eight weeks from the date on which the Handwriting Expert is allowed to take the photographs. (4) It is, however, obvious that if the opinion is objected to by the Respondents, the Petitioners will have to prove the same in accordance with law. The issue of evidentiary value of such opinion is kept open. (5) Writ Petitions are partly allowed in the above terms. [A.S. OKA, J.] kps