wp5573.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5573 OF 2011 Prithvirajsingh s/o Rajaramsingh Chauhan occ. pensioner r/o House No. 5378, Hatampura, Ahmednagar, Dist. Ahmednagar .. PETITIONER VERSUS 1. Smt. Sharifabi Mohd. Sharif Rangrej age 72 years, occ. household r/o H.No. 12, G.P.O. Road Near Buth Hospital, Ahmednagar Dist. Ahmednagar. 2. Salim Mohd. Sharif Rangrej age 36 years, occ. advocate r/o H.No. 12, G.P.P. Road Near Buth Hospital, Ahmednagar. .. RESPONDENTS Mr. N. V. Gaware, advocate for the petitioner. Mr. S.P. Shah, advocate for respondents. ===== CORAM : A.V. POTDAR DATE :16 th NOVEMBER, 2011 ORAL JUDGMENT : 1. By present writ petition under Articles 226 and 227 of the Constitution of India, petitioner / original defendant in Special Civil Suit No. 227/2008 on the file of 2 nd Jt. Civil Judge, Sr.Dn., Ahmednagar, questions the correctness wp5573.11 2 and legality of the order passed below exh. 1 on 23­2­2011. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. Such of the facts which are necessary for the just decision of this petition can be summarised as follows : . Respondents herein have filed Regular Civil Suit No. 227/2008 on 4­9­2008 which was later on re­numbered as Special Civil Suit No. 227/2008, against the petitioner herein for specific performance of contract dated 10­7­2004 and for possession of the suit property i.e. house property bearing Municipal House No. 12 situate in the vicinity and jurisdiction of Ahmednagar Municipal Corporation. According to the respondents herein / original plaintiffs they entered into agreement of sale about the said property on 10­4­2004 and have also received certain receipts about payment of earnest money, allegedly paid by respondents herein to the petitioner. . On service of suit summons, petitioner herein appeared in the suit and filed written statement on 21­8­2008 contesting the suit on various wp5573.11 3 grounds. It is contended by the petitioner / original defendant that the agreement of sale was not executed by him. It appears that after filing written statement, an application Exh. 27 was preferred by the petitioner / original defendant on 31­7­2009 requesting that directions be given to the respondents to produce original agreement of sale dated 10­4­2004 and the receipts allegedly executed, issued and signed by the petitioner herein. It is also prayed in the said application to find out whether the signatures on the agreement of sale and the receipts at Exh. 3/2 to 3/8 are of the same person or not. . After hearing the parties, said application came to be allowed on 1­10­2009. Thereafter disputed documents alongwith specimen signature of the petitioner / defendant were referred to the handwriting expert for his opinion. In due course, report dated 30­11­2009 is received by the lower Court. It further appears that before the disputed documents alongwith the specimen signature of the petitioner / original defendant were referred to the handwriting expert, order passed on 1­10­2009 was challenged before this Court by respondents by filing Writ Petition No. 7192/2009. By speaking order, said writ petition came to be dismissed on 12­11­2009 wherein it is clarified that the opinion of the handwriting expert is not conclusive proof. It wp5573.11 4 further appears that on receipt of report of the handwriting expert dated 30­11­2009, an application was moved at exh. 43 by respondents herein requesting to call upon the handwriting expert to place on record the test applied while drawing opinion, which application was later on not pressed by the respondents. On 23­2­2011, order came to be passed below exh. 1 which reads thus : “The report of the Hand Writing Expert Exh. No. 41 is exhibited for identification purpose. It shall not be treated as duly proved as per the provisions of Indian Evidence Act.” 4. In this background, heard learned counsel for the respective parties. During the course of submission across the bar, learned counsel for the petitioner has agreed with the legal preposition that on exhibiting the document for identification the document does not stand to be duly proved and it requires to be proved under the Indian Evidence Act. Per contra, learned counsel for the respondents supported the impugned order. 5. Real controversy appears because of the application moved by respondents herein at exh. 43 requesting the Court to call upon the hand writing expert to produce papers on record on the basis of which he has formed his opinion. At this juncture, it is necessary to reproduce paragraph wp5573.11 5 Nos. 2 and 3 of the order impugned which read thus : “2 After the receipt of above report, the plaintiffs have filed their objection to the said report vide Exh. No. 42. Moreover, they have moved an application vide Exh. No. 43 praying to direct the Hand Writing Expert to produce all documents because they wish to submit detail explanation to the report Exh. No. 41. This application was replied by the defendant at exh. No. 45. 3 After going through the Exh. No. 43 and reply at Exh. No. 45, I am of the considered view that there should not be any ambiguity or confusion between the parties regarding the exhibition of report of Hand Writing Expert filed at Exh. No. 41. It is well settled law that evidence of Expert is in the nature of opinion evidence. It is not conclusive. It is merely an advisory in nature. No doubt, at this stage, it appears that the report Exh. No. 41 goes in favour of the defendant. Even though the defendant is duty bound to prove the said Hand writing Expert’s report as per the established procedure of Indian Evidence Act. Mere exhibition of a document does not amount that ti is duly proved and admissible in evidence. As the report of Hand Writing Expert received by this court and for the purpose of its identification, it is marked as Exh. No. 41 with the oral consent of learned Advocates for the parties. It should not be presumed that the said report Exh. No. 41 was exhibited holding as duly proved. 4. Considering the observations in the impugned order of which paragraph nos. 2 and 3 are reproduced above, it appears that order passed below exh. 1 is in the nature of clarification about the legal position. On wp5573.11 6 perusal of the impugned order it appears that the lower court has not formed any opinion as to whether the opinion given by the hand writing expert is proved or it is not proved. It appears that, this issue is kept open by the lower Court. It is also made clear by the lower Court that this order is passed with the intention that there should not be any ambiguity or confusion between the parties regarding exhibition of the report of the hand writing expert filed at exh. 41. Thus, the order impugned is in the form of clarification. Considering this aspect, I do not think it proper to interfere in the order at this stage. In the light of this, writ petition sans merit, stands dismissed. Accordingly, rule discharged. No order as to costs. 5. It is hereby clarified that during trial the trial court shall give proper opportunity to both the parties to lead evidence about proof of the opinion expressed by the hand writing expert. ( A.V. POTDAR ) JUDGE dyb