1 wp5529-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5529 OF 2011 Ashok Shantilal Kurani .. Petitioner Versus Mrs. Dhiren alias Dhirendrakumar s/o Shantilal Jethalal Kurani and others .. Respondents Mr. P. S. Dani, for the petitioner, Mr.S. P. Thorat for respondent No.1 CORAM: R. M. BORDE, J. DATED : 18th August, 2011 P. C. 1. Rule. Rule made returnable forthwith. 2. With the consent of the learned counsel appearing for the parties, taken up for final disposal at the admission stage. 3. In the pending Civil Suit, the plaintiff tendered an application for appointment of an expert for the purpose of verification of signatures of defendant no.1 on the documents referred to in Para Nos. 3 and 5 of the application with the 2 wp5529-11.sxw admitted signatures of the defendant no.1 on the Vakalatnama and written statement, affidavit. The contention raise by the plaintiff in para 3 and 5 is to the effect that the defendant no.1 is alleged to have forged signatures of the plaintiff and got the document executed. In order to substantiate this contentions, the plaintiff wants the signature on the allegedly forged documents to be compared with the admitted signatures of the defendant no.1 on the documents referred to in prayer clause (b) of the application. 4. The learned Trial Judge, considering the contentions raised by the respective parties, was pleased to allow the application by the order passed below Exh.400 on 10/6/2011. 5. I have perused the impugned order and heard the arguments advanced by the learned counsel for the respective parties. 6. The admitted handwriting of the plaintiff can be compared with the signatures appearing on the allegedly forged documents. However, the plaintiff cannot be permitted to take help of the Court for substantiating his contention 3 wp5529-11.sxw that the signatures appearing on the allegedly forged documents are that of defendant no.1 and for proving this contention he cannot be permitted to request the court to refer the disputed documents for examination and comparison with the admitted hardwiring of the defendant no. 1. Section 47 of the Indian Evidence Act, 1872, reads: 47. Opinion as to handwriting, when relevant._ When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. 7. What is contemplated under section 47 of the Evidence Act is that when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. In view of the provisions of Section 45 of the Evidence Act, an opinion of the expert is a relevant fact. The petitioner can be permitted to tender an application requesting the Court to examine the disputed handwriting 4 wp5529-11.sxw and seeking directions of examination of the signatures on documents by an expert and such disputed handwriting or signature can be compared with the handwriting and signatures of the petitioner himself. But the handwriting and the signatures on the disputed documents cannot be permitted to be compared with the handwriting and signature of the defendant. If such a course is adopted, it would amount to taking assistance of the court in collecting the evidence for the plaintiff. The mode of proving the contentions raised by the plaintiff in the plaint adopted in the instant matter is not contemplated by the provisions of the Evidence Act and Order 26 of the Code of Civil Procedure. 8. The order passed by the trial Court below Exh.300 in Special Civil Suit No.1872 of 1997, therefore, needs to be quashed and set aside and the same is accordingly quashed and set aside. 9. It would be, however, open for the respondent herein to tender a application within contemplation of law for examination of the signatures/handwriting on the disputed documents by the expert and if such an application is 5 wp5529-11.sxw tendered , the court may consider the same in accordance with the provisions of law. 10. Rule is accordingly made absolute. 11. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.)