wp2120.11 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ WRIT PETITION NO.2120 OF 2011 SUGREEV TUKARAM SHINDE AND ANR VERSUS VILAS KASHINATH MANDE AND ORS ... Advocate for Petitioners : Mr.Gunale V.D. Advocate for Respondents : Mr. R P Adgaonkar for R/ 1 to 7 ... CORAM : S.S. SHINDE, J. Dated: November 25, 2011 ... Heard. 2 The application which was filed by the petitioners before the C.J.S.D., Latur to send the documents to the hand writing expert was on the date fixed for final arguments in the matter. The trial Court has observed that the matter was fixed for final arguments at the request of the petitioner, who is plaintiff in the suit. It is also not in dispute that 16th December, 2010 cross- examination of defendant No.1 was completed and application was filed for wp2120.11 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ sending the documents to handwriting expert on 3rd February, 2011 i.e. the date fixed for final arguments. 3 The learned Counsel for the petitioners invited my attention to issue no.1 at Exh.43 and submitted that burden is on the plaintiff to prove the agreement to sell. The defendant No.1 has taken contradictory stand in the written statement, examination and cross-examination and, therefore,the documents which are signed by the defendant No.1 are required to be sent to the handwriting expert to set at rest the controversy involved in the matter. However, the trial Court erroneously rejected the said application on the ground that the matter is fixed for final hearing. He further submitted that it is the suit filed by the petitioners - plaintiffs and no prejudice will be caused to the respondents if such documents are sent to handwriting expert and even the suit is adjourned further. wp2120.11 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ 4 On the other hand, the learned Counsel appearing for the respondents would submit that even the defendants' arguments are over and therefore, the trial Court has rightly rejected the application of the petitioners for sending the documents to handwriting expert. 5 Upon hearing the learned Counsel for the parties, I am not inclined to entertain this writ petition on merits. The application which was filed by the petitioners was on the date of final arguments and, therefore, in my opinion, the trial Court was right in rejecting the said application. There may be substance in the contention of the Counsel for the petitioners. However, such prayer which was made by the petitioners / plaintiffs in the application cannot be considered on the date when the matter is fixed for final arguments. It will be open for the petitioners / plaintiffs to agitate this wp2120.11 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ point during the course of final hearing and also to request the concerned Court to compare signatures since the concerned Court is empowered to undertake such an exercise under the provisions of the Evidence Act. It is once again made clear that the petition is rejected on the ground that the application filed by the petitioners was on the date of final argument of the suit and this Court has not opined anything on merits and it is left open for the trial Court to consider the said issue at the time of final hearing of the matter. Petition is rejected. (S.S. SHINDE, J.) PLK/*