CRP 184/2011 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY By this application u/s 227 of the Constitution of India, the petitioners challe nged the impugned order dated 3.5.11 passed by the learned Munsiff No.1 , Dibrug arh in T.S. No.32/08, whereby the prayer for sending Exht.-B for the handwriting expert’s opinion, was rejected. Heard Mr. C. Baruah, learned senior counsel assisted by Mr. P. Sarma, learned co unsel for the petitioners and Mr. PJ Saikia, learned counsel appearing for the sole respondent. The plaintiff/respondent filed T.S. No.32/08 in the court of learned Munsiff No. 1, Dibrugarh praying for declaration of right, title and interest and recovery o f khas possession over the suit land and also for mandatory injunction directing the defendants to remove the partially constructed building premises from the s uit land. The petitioners/defendants contested the suit by filing written state ment stating interalia that in the earlier case u/s 145 CrPC filed by the petiti oner No.1 against the respondent, the possession of land was declared in favour of the petitioner No.1 by the learned Executing Magistrate, since the respondent vide Exht.-B had relinquished the suit land in favour of the petitioner. Accor dingly to the petitioners, this was done by the plaintiff/respondent to maintain cordial relationship between the two families. Since then, for the last 10 years, according to the petitioners/defendants, they are in possession of the suit land. The petitioners/defendants pleaded in the written statement that in terms of the Exht.B, the plaintiff is now estopped fro m claiming the possession of suit land from the petitioners. Learned counsel for the petitioners submits that the plaintiff/respondent having denied the execution of Exht.B by putting his signature therein has created a s ituation requiring the petitioner to establish and prove that the signature was in fact put by the plaintiff/respondent, therefore, the petitioners submitted an application before the learned trial court, for sending the Exht.B to the handw riting expert’s opinion to ascertain as to whether Exht.B is in the handwriting of the plaintiff/respondent. However, the learned trial court by the impugned order dated 3.5.2011 rejected t he prayer of the petitioners/defendants. Relevant extract of the order passed b y the learned trial court reads as follows: 3.5.11 Both sides represented. Heard. The contention of defendant in Pt. 544/11 is tha t plaintiff wrote Exhibit B in Assamese in own writing (NOC) whereby released th e S/L to defendant No.1 which exhibit B denied by the plaintiff is cross examina tion. For purpose proof of exhibit B it is necessary to send the same for Hand w riting Expert opinion. Also sen W/objection 1444/11 of plaintiff alleging that E xhibit B is not admissible because of Non having stamp paper, not registered one . Hence prayed for rejection of the prayer. A perusal of exhibit B reveals that same is purportedly NOC allegedly written or a non stamp paper by plaintiff though the admissibility of the same is not the crux but question wrote as to what thrust exhibit B has in this case. The defen dant No.1 counsel submits that as per section 115 of the evidence create that so me estoppel against plaintiff if exhibit -B proved as signed by plaintiff. A pe rusal of doctrine of estoppel reveals that it is to affect the legal relation be tween the parties and the exhibit B whatsoever prima-facie legally not creates a ny transferable right under TP Act or any law time in force. So, the prayer for sending Exhibit B at this stage after evidence being furnished has no stand. Fix 16.5.11 for Argument. Sd/ Munsiff No.1, Dibrugarh Learned counsel for the petitioners would submit that the prayer for forensic ex amination of the handwriting of the plaintiff/respondent was rejected by the tri al court, solely on the ground that there is no legal relationship between the p arties in terms of Exht. B, since, according to the learned trial court, it did not prima facie create transferable right under the T.P. Act or any other law. Mr. Barua submits that this is not the stage to decide the merit of the issue in question. The merit of the issue would be considered and decided on conclusion of the hearing when the judgment is delivered by the court. It would not be ap propriate for the court to pre-judge the issue in question to deny a valuable ri ght of the petitioners/defendants to establish and prove the fact of putting sig nature by the plaintiff/respondent in the document Exht.B. The learned counsel for the petitioner submitted that the denial to send the document to the handwri ting expert would cause gross injustice to the petitioners. Mr. PJ Saikia, learned counsel for the respondent vehemently submitted that no s emblance of right has been conferred upon the petitioners/defendants to challeng ing the said documents. Therefore, the examination of such documents by handwri ting expert would be a futile exercise and as such the order passed by the learn ed trial court does not warrant any intereference by this court, in exercise of its jurisdiction under Article 227 of the Constitution of India. Mr. Saikia in support of his contention referring to a decision of the Supreme C ourt reported in (2003)6 SCC 675 (Surya Dev Rai -vs- Ram Chander Rai and others) has submitted that a writ or certiorari under the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases, where the judicial cons cience of the High Court dictates it to act, lest a gross failure of justice or grave injustice should occasion. Mr. Saikia further pointed out that the issue i n question can very well be raised at the appellate stage by the aggrieved party after the suit is finally decided on merit. Therefore, there is no necessity o f interfering with the interlocutory order passed by the learned trial court at this stage. The relevant extract of the decision referred above, reads as follows: 38. Such like matters frequently arise before the High Courts. We sum up our co nclusions in a nutshell, even at the risk of repetition and state the same as he reunder:- (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdicti on of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, ag ainst which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, c ertiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have ac ted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of proc edure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and f ailure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requ irements are satisfied : (i) the error is manifest and apparent on the face of t he proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceiv ed or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be calle d gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial cons cience of the High Court dictates it to act lest a gross failure of justice or g rave injustice should occasion. Care, caution and circumspection need to be exer cised, when any of the abovesaid two jurisdictions is sought to be invoked durin g the pendency of any suit or proceedings in a subordinate court and the error t hough calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and enterta ining a petition invoking certiorari or supervisory jurisdiction of High Court w ould obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if no t corrected at that very moment, may become incapable of correction at a later s tage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will no t covert itself into a Court of Appeal and indulge in re-appreciation or evaluat ion of evidence or correct errors in drawing inferences or correct errors of mer e formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of c ertiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unli ke English courts has almost obliterated the distinction between the two jurisdi ctions. While exercising jurisdiction to issue a writ of certiorari the High Cou rt may annul or set aside the act, order or proceedings of the subordinate court s but cannot substitute its own decision in place thereof. In exercise of superv isory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed t hereafter or afresh, the High Court may in appropriate cases itself make an orde r in supersession or substitution of the order of the subordinate court as the c ourt should have made in the facts and circumstances of the case. Upon scrutiny of the impugned order, it appears that the learned trial court rej ected the prayer for sending the documents to handwriting expert, for forensic e xamination of the signature, by holding that the documents in question is not re levant for the just decision of the case. In fact by doing so the learned trial court tried to pre-judge the issue by entering into the merit of the case, whic h would not be appropriate for the trial court at that stage of the proceedings. The question of admissibility of a document which is the sole basis of the def ence stand should be left open to be discussed and decided after conclusion of h earing of the case when the judgment is delivered. Keeping in view the decision of the Supreme Court in Surya Dev Rai(supra) and th e parameters indicated by the Apex Court, in my view, rejecting the prayer for e xamination of the documents by handwriting expert would occasion grave injustice to the respondents, who are earnestly prosecuting the defence stand basing on t he said document Exht.B. Considering the above, I find there is merit in the petition filed by the petiti oners warranting interference of the impugned order by this court. Accordingly, the impugned order dated 3.5.11 passed in T.S. No. 32/08 by the learned trial c ourt is hereby set aside and quashed and the matter is remitted back to the tria l court with a direction to send the questioned document i.e Exht.B to the handw riting expert, for forensic examination, to ascertain as to whether the signatur e put therein was made by the plaintiff/respondent. After obtaining the report of the forensic expert, the learned trial court shall proceed with the case in a ccordance with law. With the above observation and direction, this revision petition stands dispose d of.