The signature or handwriting of the parties can be compared under the court of law with the help of Section 73 of the Indian Evidence Act of 1872: High Court Of Calcutta

In the High Court at Calcutta Civil Revisional Jurisdication The Hon’ble Justice Subhasis Dasgupta CO. No. 12521 Jiyarul Mondal & Ors Ainur Haque & Anr For the Petitioners Plaintiffs Mr. Malay Bhattacharyya Adv Mr. Subhrajyoti Ghosh Adv For the Defendents Mr. Shyamal Mukherjee Adv Ms. Priyanka Chatterjee Adv Subhasis Dasgupta J: The impugned order no. 49 dated 20th July 2019 passed by learned Civil Judge Kalyani Nadia in T.S. No. 141 of 2014 rejecting the application under Order XXVI Rule 10A of Code of Civil Procedure praying for hand writing expert opinion is subject of challenge in this revisional application Mr. Malay Bhattacharyya petitioners defendants submitted that the learned court below had mechanically rejected the prayer for hand writing expert opinion without having understood the true purport of the provisions contained in Order XXVI Rule 10A of C.P.C together with the specific averment taken by petitioners in their written statement challenging the authenticity and genuineness of the deed being no. 7783 said to have been executed by one Janab Ali Mondal and thereby alleging therein that the purported deed under reference had been fraudulently prepared collusive null and void and not binding upon the petitioners and further that no possession of proposed land had been handed over in favour of the opposite parties plaintiffs in any manner whatsoever Adverting to the impugned order learned advocate for the petitioners contended that learned court below was not justified in denying the hand writing expert opinion merely on the ground that the purported deed under challenge had already been exhibited and further the evidence of the opposite parties plaintiffs had been concluded including cross examination Mr. Shyamal Mukherjee learned advocate representing opposite parties making use of an affidavit in opposition submitted that the learned court below had rightly rejected the application under Order XXVI Rule 10A of C.P.C. praying for hand writing expert opinion on the ground that there had been closure of the evidence of plaintiffs and the purported document had already been marked exhibit providing ample scope to the petitioners to challenge the veracity of the purported document doing necessary cross examination More so the prayer for hand writing expert according to learned advocate for the opposite parties was unnecessary in the given facts and circumstances of this case as there could be effective comparing of signature and as well as thumb impression of vendor of opposite parties appearing in the two deeds produced after resorting to provisions available under Section 73 of Evidence Act It is a suit for declaration wherein sale deed dated 12.06.2014 was sought to be declared illegal baseless non operative void and not binding upon the opposite parties The case of the opposite parties made out in Para 1 & 2 of the plaint is that the suit property was previously owned and purchased by one Janab Ali Mondal. Said Janab Ali Mondal sold out in the year 1983 four 4) decimals of land out of 35 decimals in plot no. 246 receiving valuable consideration to opposite parties plaintiffs. The opposite parties had their own land property in southern side of such newly purchased property The defendant nos. 4 13 being the descendants of vendor of opposite parties plaintiffs knowing fully well that their predecessor had already sold out property to the extent mentioned hereinabove to opposite parties plaintiffs they again sold away the same to defendant nos. 1 to 3 by sale deed dated 12.06.2014 which is under challenge before the learned court below As against the case made out in the plaint the specific defence of the petitioners set out in their written statement is that Janab Ali Mondal never executed the purported deed of 1983 in favour of opposite parties plaintiffs and the possession of the same had not been delivered Upon perusal of the pleadings of both the parties it appears that since beginning petitioners had challenged the veracity and genuineness of the signature of vendor of opposite parties plaintiff appearing on the deed stated to have been executed by their predecessor Janab Ali Mondal The point to be addressed by this Court is whether the learned court below had rightly rejected the prayer for hand writing expert opinion Contention was raised by the opposite parties plaintiffs that filing of such application for hand writing expert opinion was purposive simply to drag the proceedings by any means with mala fide intention even after closure of evidence of plaintiffs and also when petitioners defendants were called upon to adduce their respective evidence This Court was thus sought to be impressed by the learned advocate for the opposite parties that when the purported document under challenge had already been marked exhibit providing adequate scope to challenge the veracity of the document doing necessary cross examination for the purpose soliciting any opinion from hand writing expert in the given facts and circumstances of this case would be an unnecessary exercise having no sanction of law The genuineness and the veracity of the deed being No. 7783 said to be executed. by Janab Ali Mondal is under challenge which would be evident from the written statement filed by the petitioners. Order XXVI Rule 10A C.P .C. deals with scientific investigation by hand writing expert for extracting the truth even after the purported document might have been made exhibit. Section 73 of the Indian Evidence Act of 1872 permits the Court to compare signature hand writing of vendor of opposite parties plaintiffs appearing in the deeds produced simply for strengthening the finding to be reached by court below upon production of cogent material and evidence which is of course independent of hand writing expert’s opinion as available under Order XXVI Rule 10A C.P.C. but is always subject to the discretion of Court to be rationally and judicially exercised depending upon the facts and circumstances of a particular case Pertinently it may be mentioned that the impugned deed the execution of which by the predecessor of the petitioners has been grossly challenged by the petitioners was marked exhibit for the plaintiffs upon calling the required staff of Registry Office with production of volumn for proving a document the certified copy of which was produced by the plaintiffs requiring proof of such document on the same date itself of adducing evidence by the staff of Registry Office In such context denial of such hand writing expert opinion on the ground of causing prolixity to the suit is not justified upon visualization of the nature of the defence being put up by the petitioners defendants in the given circumstances of this case For the reasons as aforesaid the impugned order rejecting hand writing expert opinion is not sustainable. Soliciting hand writing expert opinion with respect to the signature hand writing appering on the disputed and admitted documents said to have been executed by the vendor of the plaintiffs opposite parties in the given context of this case The impugned order dated 20th July 2019 passed by learned Civil Judgekalyani Nadia in T .S. No. 1414 rejecting the hand writing expert opinion under Order XXVI Rule 10AC.P .C. is set The revisional application succeeds Learned Court below is directed to take necessary steps initiating correspondence with the appropriate authority concerned within two (02 months from the date of communication of this order to the learned court below for examination of the disputed and admitted documents by hand writing expert and ascertain the anticipated costs to be deposited by the petitioners defendants within fortnight after the date of collection of report as regards expenses necessary for hand writing expert opinion under Order XXVI Rule 10A C.P .C Both the parties to this case are accordingly directed to co operate with the learned court below in the matter of proposed hand writing expert opinion so that no unnecessary delay is caused to the ultimate disposal of this case even after obtaining hand writing expert opinion Petitioners are further directed to make communication of this order to the learned court below Urgent certified copy of this order and judgment if applied for be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities Subhasis Dasgupta J

Summary: The impugned order dated 20th July 2019, passed by learned Civil Judge (Junior Division), Kalyani, Nadia in T .S. No. 141 of 2014, rejecting the handwriting The application was rejected under  Order XXVI Rule 10A of Code of Civil Procedure, praying for handwriting expert opinion is subject of challenge in this revisional application, this was held in the judgement passed by a single bench judge comprising HON’BLE MS. JUSTICE  SUBHASIS DASGUPTA, in the matter Jiyarul Mondal &amp; Ors. Vs. Ainur Haque &amp; Anr [ CO. No. 1254 of 2021]. Mr Malay Bhattacharyya learned advocate submits before the court that the learned court below had mechanically rejected the prayer for handwriting expert opinion without having understood the true purport of the provisions contained in Order XXVI Rule 10A of C.P.C. Also further states that no possession of proposed land had been handed over in favour of the opposite parties/plaintiffs in any manner whatsoever. Mr Shyamal Mukherjee, a learned advocate who was representing opposite parties making use of an affidavit in opposition submitted that the learned court below had rightly rejected the application under Order XXVI Rule 10A of C.P.C., praying for handwriting expert opinion. They came to a face where, the prayer for handwriting expert, according to learned advocate for the opposite parties, was unnecessary in the given facts and circumstances of this case, as there could be effective comparing of signature and as well as thumb impression of the vendor of opposite parties appearing in the two deeds produced after resorting to provisions available under Section 73 of Evidence Act. Also coming to the sale deed dated 12.06.2014, was sought to be declared illegal, baseless, non-operative, void and not binding upon the opposite parties. They mentioned that the opposite parties had their own land property on the southern side of such newly purchased property. The main issue was that the land which was sold to defendant 4-13 was again sold to the other defendant’s 1to 3, by sale deed dated 12.06.2014, which is under challenge before the learned court below. As against the case made out in the plaint, the specific defence of the petitioners set out in their written statement is that Janab Ali Mondal, never executed the purported deed of 1983 in favour of opposite parties/plaintiffs, and the possession of the same had not been delivered thereby. The main and important thing which is to be taken into consideration is to address the Court, whether the learned court below had rightly rejected the prayer for handwriting expert opinion or not. Defendants were called upon to adduce their respective evidence, Because plaintiffs said that filing of an application for handwriting expert opinion was purposive, simply to drag the proceedings by any means with mala fide intention. And also the document doing the necessary cross-examination for the purpose, soliciting any opinion from handwriting expert in the given facts and circumstances of this case would be an unnecessary exercise having no sanction of law. The genuineness and the veracity of the deed being No. 779 of 1983, said to be executed. by Janab Ali Mondal is under challenge, which would be evident from the written statement filed by the petitioners. Order XXVI Rule 10A C.P .C. Section 73 of the Indian Evidence Act of 1872, Permits the court to compare signature/handwriting of vendor of opposite parties/plaintiffs appearing in the deeds produced. The expert opinion under Order XXVI Rule 10AC.P .C. is set aside. The revisional application succeeds.