S.B.CIVIL WRIT PETITION NO.8793/2009 Smt. Kesar vs. M/s Pokaran Auto Mobile DATE OF ORDER : 26/10/2009 1/3 S.B.CIVIL WRIT PETITION NO.8793/2009 (Smt. Kesar vs. M/s Pokaran Auto Mobile) DATE OF ORDER : 26/10/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.S.L.Sinawadia, for the petitioner. 1. This petition is directed against the order dated 24/7/2009, whereby, the trial court rejected the application of defendant tenant under Order 26 Rule 10-A CPC for sending the rent note bearing the thumb impression of the defendant for examination by handwriting expert. 2. The learned trial court has rejected the said application observing that said application has been filed after the gap of five years of filing of written statement by the defendant petitioner and besides the ground of delay, the defendant is also free to produce her own evidence during the course of defendant's evidence before the learned trial court. 3. Learned counsel for the defendant petitioner has relied upon the decision of A.P.High Court in the case of Guru Govindu v. Devarapu Venkataramana – AIR 2006 A.P. 371, wherein, the S.B.CIVIL WRIT PETITION NO.8793/2009 Smt. Kesar vs. M/s Pokaran Auto Mobile DATE OF ORDER : 26/10/2009 2/3 Andhra Pradesh High Court held that the application under Order 26 Rule 10-A CPC can be filed even at the stage of arguments and need not be filed soon after the written statement is presented and existence of power in the trial court to undertake comparison and signatures under Section 73 of the Evidence Act does not prevent party from filing application for sending documents to handwriting expert. 4. He has also relied upon the following decisions in the case of Bhagirati Sahu & Ors. vs. Akapati Bhaskar Patra – AIR 2001 Orissa 185, O.Bharathan vs. K.Sudhakaran & anr. - AIR 1996 SC 1140 & State vs. Pali Ram – AIR 1979 SC 14 in support of his contention. 5. The legal position in this regard is well settled. Even if the application under Order 26 Rule 10-A CPC can be filed at the stage of arguments as observed by the Andhra Pradesh High Court in para no.5 of the above judgment, it was held that, “On the other hand, even at the stage of hearing, if the Court feels that it must seek the help of an expert in coming to a proper conclusion, it can send the document on its own accord by requiring the party concerned to meet the expenditure.” S.B.CIVIL WRIT PETITION NO.8793/2009 Smt. Kesar vs. M/s Pokaran Auto Mobile DATE OF ORDER : 26/10/2009 3/3 6. In the present suit filed for eviction and recovery of arrears of rent, though the said rent note is the basic document, the trial is going on since the year 2000 and the impugned order has been passed by the learned trial court in the middle of 2009 after the said application was filed on 20/4/2005, it only indicates the snail's pace at which the trial is going on. The suit is still at the stage of plaintiff's evidence and defendant's evidence is yet to commence. It goes without saying that it is for the plaintiff to prove the relationship of landlord and tenant and the documents and defendant can can also lead his evidence during the course of her evidence when the same is undertaken by the learned trial court. 7. At this stage, if the trial court has thought it fit not to send the said document for examination by handwriting expert, the said use of discretion by the trial court is not required to be interfered with by this Court under Article 227 of the Constitution of India. 8. Consequently, this writ petition being devoid of merit is hereby dismissed. Copy of this order be sent to opposite side and trial court. (DR.VINEET KOTHARI), J. item no.9 baweja/-