IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 230 of 2007 Reserved on : 8.5.2008 Date of decision:3.6.2008 Himanshu Petitioner. Versus Bishan Dutt and others. Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No . For the petitioner: Mr. Peeyush Verma, Advocate. For the respondent No.1. Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta, Advocate Per Deepak Gupta, J. This petition under Article 227 of the Constitution of India is directed against the order of the learned Additional District Judge (Fast Track Court), Solan dated 12.7.2007. Brief facts relevant for decision of this petition are that respondent No.1 Bishan Dutt (here-in-after referred to as the plaintiff) filed a suit for declaration against the present petitioner Himanshu and others for declaration that the mutation of the estate of late Smt. Kamla widow of Bhawani Dutt in favour of defendant 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. Himanshu on the basis of the Will dated 20.7.1988 is illegal and that the said Will is a forged document. It was further prayed that the plaintiff Bishan Dutt and the proforma defendants being natural legal heirs of late Smt. Kamla were entitled to inherit her estate in accordance with the law of succession. The defendant Himanshu contested the suit and relied upon the said Will. He also examined certain witnesses, who had appended their signatures on the Will. The plaintiff while leading rebuttal evidence filed an application under Section 45 read with Section 73 of Indian Evidence Act praying that the purported thumb impression of Smt. Kamla on the Will be ordered to be compared with her admitted thumb impressions available in New Bank of India where she had a Bank Account as well as her thumb impressions on certain documents which were available with M/s Mohan Meakin Limited, Solan, where she had deposited certain amount(s) in fixed deposits. The learned trial Court rejected the application and the suit of the plaintiff was finally dismissed. The plaintiff filed an appeal and also moved an application under Order 41 Rule 27 CPC, in which application the plaintiff has made reference to certain documents allegedly thumb marked by Smt. Kamla while depositing amount as fixed deposits with M/s Mohan Meakin Limited, Solan. This application was allowed by the learned District Judge, Solan vide order dated 1.4.2004 in the following terms:- The trial Court having refused to grant the prayer of the plaintiff/appellant for the comparison of two sets of thumb impressions, the appellant’s prayer for additional evidence deserves to be granted in view of the provisions contained in clause (a) of sub-rule 1 of rule 27 of Order 41 of the Civil Procedure Code. Consequently, the application is allowed and the plaintiff/appellant is permitted to lead the additional evidence. For such evidence put up on 5.5.2004. The plaintiff thereafter examined certain witnesses from M/s Mohan Meakin Limited, Solan, who proved certain documents purportedly bearing the thumb impression of Smt. Kamla. Thereafter, the learned lower appellate Court came to the conclusion that the thumb impression on these documents were of Kamla, since it was she who had deposited the amount(s) and genuineness of these documents could not be doubted. He rejected the prayer of the defendant No.1 that the documents had not been proved or that the thumb impressions were not of Kamala. Hence, the present petition. The main ground taken in the petition is that the learned lower appellate Court has sent those documents for comparison which were not even sought to be produced by the plaintiff in his application filed before the trial Court. It would be pertinent to mention that when the application for leading additional evidence was filed in the trial Court it had been prayed that Smt. Kamla had thumb marked applications No. 35, 37, 38 and 39 and it was these applications alongwith the record of Punjab National Bank, Parag, which was sought to be sent for comparison with the Will. The contention of Shri Peeyush Verma, learned counsel for the petitioner, is that now the plaintiff has not proved these applications but has proved some other applications bearing different numbers. According to Shri Peeyush Verma, the plaintiff had not been permitted to prove these applications. On the other hand, Shri Bhupender Gupta, learned Senior Counsel, has urged that evidence has already been led. The signatures of Smt. Kamla have been proved by the witnesses on the applications for making renewing the fixed deposits. He further urged that the plaintiff cannot challenge the veracity of the thumb impressions of Kamla on these applications, since he has under the Will in question withdrawn the amount payable under the said fixed deposits. I am not at all in agreement with the contentions of the petitioner. True it is that in the application for leading additional evidence filed before the learned trial Court the plaintiff had made reference to certain specific applications of Smt. Kamala. However, in the application under Order 41 Rule 27 CPC filed before the learned lower appellate Court general averments were made that Kamla Devi had deposited various amounts with M/s Mohan Meakin Limited, Solan and the plaintiff intends to get the thumb impression of Smt. Kamla appearing on the disputed Will compared with the thumb impression put by Smt. Kamla on the documents with M/s Mohan Meakin Limited, Solan. The application was allowed in terms of the order quoted above. There is nothing in the order to indicate that the application was allowed only in respect of some particular documents. Thereafter the plaintiff summoned the witnesses and record from M/s Mohan Meakin Limited, Solan and had got proved the thumb impression of Smt. Kamla Devi on a number of documents. These documents have been ordered to be sent alongwith the disputed Will to the Government Examiner Questioned Documents for comparison. There is no error in the order. I am also of the considered opinion that it does not lie in the mouth of the defendant No.1 to urge that the thumb impression on the documents whereby deposits were made on behalf of Smt. Kamla are not her thumb impressions but thumb marked by some other person. The defendant No.1 on the basis of the Will has already withdrawn the amount payable in respect of the fixed deposits which were made or renewed under the thumb impressions of Smt. Kamla. Having taken benefit of the deposits the defendant No.1 cannot urge that the thumb impressions on these documents are not of Smt. Kamla. Keeping in view the aforesaid facts, I am of the considered view that the order of the learned trial Court is absolutely correct. It suffers from no jurisdictional error calling for interference in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India. The petition being without any merit whatsoever is dismissed with costs assessed at Rs.5,000/-. 3rd June, 2008 (Deepak Gupta), J. ™