IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1100 of 2006 USHA SAHAI @ USHA SAHAY Versus CHANDRA KALA DEVI & ORS ----------- 3 27.11.2008 Heard counsel for the plaintiff-petitioner and counsel for the defendant-opposite parties. The grievance of the plaintiff-petitioner against the impugned order as a matter of fact, seems to be wholly misconceived. The plaintiff-petitioner before this Court would contend that an order was passed on 7.7.2005 on an application filed by the defendant-opposite party for sending the signature of the plaintiff on the plaint and Vakalatnama for its being compared with her signature on her deposition in court without hearing the counsel for the petitioner and when an application for recalling such order dated 7.7.2005 was filed on 5.12.2005, the same was rejected on 4.4.2006 on a ground that in the mean time the report of the hand writing expert had already been received and as such the prayer made in the application dated 5.12.2005 for recalling the order dated 7.7.2005 had become academic if not infructuous. Counsel for the petitioner in this regard contends that as soon as the petitioner came to know of the order dated 7.7.2005, an application was filed by her for its being recalled and as such the Court instead of justifying the order dated 7.7.2005, ought to have gone into the correctness thereof whether such an order for sending the signature of the plaintiff-petitioner for opinion of the hand writing expert was at all required to be passed by this court below. 2 On the other hand, counsel for the opposite parties would take a specific stand that there was no error in the order dated 7.7.2005 which in fact came to be passed on the basis of a specific plea taken by the defendants-opposite parties in their written statement that the signature of the plaintiff on the plaint was forged and the suit should be dismissed on that ground alone. It appears to this Court that the real rub lies somewhere else and such rub infact is with regard to the content of the report of hand writing expert. The plea of the defendants-opposite parties that the plaintiff-petitioner had not put her signature in the plaint in fact would not be of much consequence in view of the fact that the plaintiff in her own deposition has asserted that signature on the plaint was put by her at the time of filing of the plaint and in this regard she had in fact also successfully refused the contrary claim of the defendants-opposite parties and had taken a bolder stand that her signature could be sent for an opinion of the hand writing expert. If that be so, the opinion of the hand writing expert in all fairness would lose its importance because ultimately a suit should has to be decided on its own merit and not on a mere technicality. This Court would therefore, for the moment will not interfere with the impugned order inasmuch as the scope of the impugned order dated 4.4.2006 has been rendered academic and the prayer made in the application dated 5.12.2005 had become infructuous inasmuch as nothing had remained for the Court to recall the order dated 7.7.2005 which as noted above, already been given effect to 3 and had culminated into the report of the handwriting expert dated 29.12.2005 filed in the court. Accordingly, this application is dismissed as having become infructuous but it is made clear that the issue with regard to correctness of the report of the hand writing expert dated 29.12.2005 would remain open and the plaintiff-petitioner will be given an opportunity to file an objection against the contents of the report of handwriting expert as and when it is sought to be relied by the defendant for any purpose. Counsel for the petitioner submits that the suit is of the year, 1992 and for the last one year not a single witness has been produced by the defendants-opposite parties. The Court below would verify this aspect and keeping into account the age of the suit which is of the year, 1992, it is expected that the same would be disposed of expeditiously and in any event within a period of six months from the date of receipt/production of a copy of this order. With the aforesaid observations/directions this application is dismissed. Bibhash (Mihir Kumar Jha, J.)