1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7103 OF 2009 Raghunath s/o Sakharam Jadhav, Age Major, Occu. Agriculture, R/o. Nandgaon, Taluka Nagar, District Ahmednagar. ....Petitioner. Versus 1. Smt. Dayabai Girja Gaikwad, Age 69 yrs., Occu. Household, R/o. Dehare, Taluka Nagar, District Ahmednagar. 2. Smt. Parigabai Shridhar Bhingardive, Age 59 yrs., Occu. Household, R/o. Bhingar, Taluka Nagar, District Ahmednagar. 3. Smt. Karuna Tarachand Jadhav, Age Major, Occu. Household, R/o. Nandgaon, Taluka Nagar, District Ahmednagar. 4. Smt. Gayabai Rangnath Salve, Age Major, Occu. Household, R/o. Aundh Road, Bhimrao Colony, Pune. 5. Shri. Vitthal Muktaji Aghav, Age Major, Occu. Agriculture, R/o. Nandgaon, Taluka Nagar, District Ahmednagar. ....Respondents. Shri. J.R. Shah, Advocate for the petitioner. Shri. J.R. Shaikh, Advocate for the respondent Nos. 1 and 2. CORAM : R.M. BORDE, J. DATE : 5th April, 2010 2 ORAL JUDGMENT : 1. Heard Shri. Shah, learned counsel appearing for petitioner and Shri. Shaikh, learned counsel appearing for respondent Nos. 1 and 2. 2. Rule. With the consent of parties, petition is taken up for final disposal at the admission stage. 3. The order passed by the Trial Court during the continuation of suit below Exh. 42 in Regular Civil Suit No. 310/2005 is subjected to challenge in this petition. Needless to go into the factual controversy involved in the matter. The respondents/original plaintiffs tendered an application at Exh. 42, requesting the Court to send the disputed document i.e. the sale deed dated 22.3.1978 for examination to the hand writing expert along with the other document at Exh. 45 which is placed on record for the purpose of comparison. There is dispute in respect of thumb impression of the executant appearing on the sale deed dated 22.3.1978 and the plaintiff requested the Court to secure the opinion of the hand writing expert as regards the authenticity of the said thumb impression. The document Exh. 45 is entry in the register maintained by the Primary Health Center in respect of disbursement of some amount. It is stated that the amount of Rs. 50/- has been disbursed in favour of executant in March 1989 and in receipt thereof, the executant has put a thumb impression in the register maintain by the Primary Health Center. One Shri. Gagare is examined to prove the disputed register and entry at 3 Exh. 45. The said witness has candidly stated before the Court that in 1989 when the alleged thumb impression was put in the register, he was not serving at the Primary Health Center. He further states that he has no personal knowledge in respect of executant, having put her thumb impression on the document i.e. register maintain by the Primary Health Center in token of receipt of Rs. 50/-. Thus, Exh. 45 cannot be taken to be an admitted document and cannot be utilized for comparison of thumb impression appearing on the sale deed dated 22.3.1978. Section 73 of the Evidence Act prescribes procedure in respect of comparison of signature, writing or seal with other admitted or proved documents. The provision is quoted below :- "73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. [This section applies also with any necessary modifications, to finger-impressions.]" 4. Learned counsel for the petitioner contends that in the absence of admitted document, it is not possible to compare the signature appearing on the document i.e. sale deed dated 22.3.1978 and the 4 opinion based on such document also would not be in conformity with the provisions of the Evidence Act. 5. In the facts stated above, in the absence of admitted thumb impression, it would not be proper and also not be in consonance with the provisions of Section 73 of the Evidence Act to secure the opinion of the expert in respect of the authenticity of the thumb impression. The order passed by the 4th Joint Civil Judge, Senior Division, Ahmednagar is not legal, and therefore needs to be set aside. 6. The impugned order, therefore, is quashed and set aside. Rule is accordingly made absolute. In the facts and circumstances of this case, there shall be no order as to costs. [ R.M. BORDE, J. ] ssc/wp7103.09