IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 483 OF 2010 VAMAN NARAYAN KUNDAIKAR (SIN.DEC.)THROUGH LR'S ... Petitioner Versus MARIA FATIMA ALIAS SILO SILVA ... Respondent Mr. P. A. Kamat, Advocate for the petitioners. Coram:- A. P. LAVANDE, J. Date:- 24th November, 2010 P.C. Heard Mr.Kamat, learned Counsel for the petitioners. The respondent, who appears in person has filed written arguments, which are taken on record. 2. By this petition under Article 227 of the Constitution of India, the petitioners challenge the order dated 7th November, 2009 passed by the Civil Judge, Senior Division, Panaji in Regular Civil Suit No.498/2000/B by which the application filed by the petitioners to refer the agreement dated 11th December, 1980 exhibit PW1/B and receipts exhibit 35 colly for examination of the handwriting expert has been dismissed. 3. The petitioners are the original plaintiffs in the above suit filed against the respondent/ defendant seeking specific performance of the agreement dated 11th December, 1980. The defendant contested the suit and challenged the agreement but the defendant did not specifically deny her signature on the agreement. 4. In course of the trial, the defendant denied the signature on the said agreement. The plaintiffs, therefore, filed the application dated 29th August, 2009 for referring the said agreement along with the receipts which were admitted by the defendant, to the handwriting expert for opinion. The trial Court by the impugned order has rejected the application, inter alia, on the ground that the plaintiffs could lead evidence in rebuttal by examining the attesting witnesses. 5. Mr. Kamat, learned Counsel for the petitioners submitted that both the attesting witnesses have expired and as such, the petitioners are not in a position to lead evidence of attesting witnesses. He further submitted that the petitioners are entitled to seek assistance of expert in terms of Sections 45 and 47 of the Evidence Act. He, therefore, submitted that the impugned order be set aside since the trial Court has not exercised the jurisdiction in accordance with law. 6. The respondent, who has filed written arguments, has opposed the prayer of the petitioners. 7. Having heard the learned Counsel for the petitioners and having perused the written arguments filed on behalf of the respondent, I find that the trial Court has not committed any jurisdictional error while passing the impugned order. Firstly, although the agreement has been challenged by the defendant, there is no specific statement that agreement does not bear the signature of the defendant. Moreover, in so far as the argument of Mr. Kamat that both the attesting witnesses have expired therefore, the finding given by the trial Court is illegal is concerned, the plaintiff ought to have made such a statement before the trial Court and it would be impermissible for the plaintiffs to plead for the first time in the present writ petition the facts which they ought to have pleaded before the trial Court. In so far as reliance placed on Sections 45 and 47 of the Evidence Act by Mr Kamat is concerned, the same is patently misplaced. The trial Court was perfectly justified in rejecting the prayer of the plaintiffs. Having regard to the admitted fact that the defendant has not denied specifically in the written statement her signature on the agreement, I do not deem it appropriate to exercise jurisdiction under Article 227 of the Constitution of India. 8. In view of the above, the writ petition stands dismissed with costs of Rs.2,500/-. The costs shall be deposited in the trial Court within a period of two weeks from today. Liberty to the respondent/ defendant to withdraw the costs after they are deposited. Interim order dated 30th June, 2010 stands vacated. Parties shall appear before the trial Court on 22nd December, 2010 at 2.30 p.m. A. P. LAVANDE, J. SMA