:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.814 OF 2008 PETITION NO.814 OF 2008 PETITION NO.814 OF 2008 Bal Prbhakar Keluskar ..Petitioner V/s Smt. Pratima Ramesh Chavan and others ..Respondents. Mr.J.M. Puranik for the petitioner Mr.Subhash Dhadge for the respondents CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 19TH MARCH, 2008 : 19TH MARCH, 2008 : 19TH MARCH, 2008 P.C. 1. Rule. By consent rule made returnable forthwith and heard finally. 2. This petition has been filed challenging the order dated 3-10-2007 passed by the Civil Judge Sr. Division, Ulhasnagar, by which order, the application of the petitioner seeking expert opinion under section 45 of the Indian Evidence Act came to be rejected. 3. The petitioner is the original defendant No.3 in Reg. Civil Suit No. 34/1994 filed by the respondents, who are the orig. plaintiffs, which suit is filed for declaration and perpetual :2: injunction against the petitioner. During the course of evidence,DW-2, the defence witness of the petitioner/orig.defendant No.3 produced a Will executed by the deceased Defendant No.1. 4. At the time of examination of the petitioner’s witness DW2 Shri Anil Thosar, the said Shri Anil Thosar has admitted in his cross- examination that he did not know the deceased defendant No.1, who was the executor of the Will, personally. According to the learned Counsel for the petitioner this part of the evidence of DW-2 would create a doubt as to whether the signature of the Will was that of the deceased defendant No.1 or not. The learned Counsel for the petitioner submitted that it would be necessary to compare and verify the signature of the deceased defendant No.1 on the Vakalatnama and her affidavit before the trial Court with the disputed Will which carries the signature of the deceased defendant No.1 and the said documents be sent to the handwriting expert for seeking his opinion. It is his submission that the trial Court has erred in rejecting the application of the petitioner seeking expert opinion and in observing that recourse is :3: available to Section 73 of the Evidence Act to meet this type of situation and that it was not necessary to send the documents to the expert for comparison and to seek his opinion. The learned Counsel for the petitioner has relied upon the following cases:- i. AIR 1960 S.C. 531 ( Murarilal V. State of M.P. ii. AIR 1979 S.C. 14 (State V.s Pali Ram) iii. AIR 1992 Allahabad 346 (Smt.Hamida V.Smt. Humer and Ors.) iv. 1973 Bom.242 (Ramkrishan Ganpat Futane & Ors. V/s.Mohammad Kasam and Ors v. AIR 1959 A.P. 360 (N. Venkayya and another V. Noona S.and another) 5. The above cases relied upon by the petitioner are in relation to the general proposition of law and not of any assistance to the petitioner in the facts of the present case. The learned Counsel for the petitioner has invited my attention to page 36 of the compilation, to show that the said Shri Anil Thosar has signed the document as witness in registration office at the time when Will was being registered. :4: 6. The learned Counsel for the respondent on the other hand opposed the petition and has supported the impugned order. 7. The matter in the Trial Court is already part heard. In my view the application is made only to delay the trial. The learned trial judge has rightly observed that the recourse is available to section 73 of the Evidence Act to meet this type of situation and the trial Court can always compare the signature of the deceased defendant No.1. I am informed that the disputed Will is already exhibited by the trial Court during evidence. It is also taken note of that the signature of DW 2 is not on the Will. His signature was taken only at the time when the Will was registered before the registration officer. In the circumstances, it would always be open for the petitioner to contend before the Trial Court that DW 2 need not have known the deceased defendant No.1 personally to be a witness before the registration officer and the apprehension of the petitioner is unfounded. 8. For the reasons mentioned above, the impugned :5: order does not call for interference and no case is made out to exercise writ jurisdiction of this Court under Article 227 of the Constitution of India. 9. The writ petition is dismissed. Rule discharged. No costs. 10. The learned Counsel for the petitioner seeks to stay operation of this order for a period of 4 weeks. In my view this is not a fit case to grant stay. Moreover, the suit in the Trial Court is already part-heard. Hence, the application for stay is rejected. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)