Writ petition dismissed dismissing counsel's challenge to an order allowing a handwriting expert report under Section 45 Evidence Act before framing of issues in a specific performance suit where signature was disputed.
Writ petition stood dismissed without interference with the impugned order allowing the expert opinion.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8317 OF 2023
Shivaji Shrikant Mahadik ….. Petitioner Vs. Vinayak Kashinath Natu ….. Respondent
Mr. Padmanabh D. Pise a/w. Mr. Sejal A. Hariyan i/b P. Padmanabh & Associates for the Petitioner.
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 11 JULY 2023.
P. C. 1. Heard.
3/5/2023 allowing the petitioner's application for sending the agreement in question to the handwriting expert.
Digitally signed by RAJESHWARI RAJESHWARI SUBODH SUBODH KARVE KARVE Date: 2023.07.14 11:00:35 +0530
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question is forged and fabricated and that he has never signed.
that by way of present application the defendant is seeking to collect evidence prior to framing of the issues. He would submit that application under section 45 of the Evidence Act cannot be preferred at this stage specifically when the matter is fixed for hearing on application Exhibit 5 .
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could commence the defendant filed an application under Order 26 Rule 10A of CPC read with section 45 of Evidence Act with a prayer to send the disputed agreement for opinion of handwriting expert. The provisions of section 45 of the Indian Evidence Act provide that when the Court has to form an opinion as to identity of handwriting, the opinions upon that point of persons specially skilled are relevant facts. In other words, if the Court is of the opinion that experts report is required to assist at arriving at a conclusion it is open to the Court to sent the document in question for expert's opinion. This is precisely what has been done in the present case. Learned counsel is not able to demonstrate any provision of law which indicates at which stage such an application can be made. The fact remains that even if the document is sent for opinion of handwriting expert the same will have to be proved by putting the handwriting expert into the witness box and handwriting expert will be subject to cross examination. It cannot be said that merely on the basis of opinion of handwriting expert , trial Court would conclude the issue as regards the signature on the alleged document. It need not be stated that opinion of the handwriting expert is not conclusive. The objection of learned
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counsel for petitioner is that the sending of disputed document to handwriting expert cannot be permitted before framing of issues. I am not inclined to accept the submission that it is the discretion of the Court to permit local investigation if it considers it requisite for purpose of elucidating matter in dispute. In present case as the defendant has disputed his signature the handwriting experts opinion will assist Court at arriving at right conclusion. In that view of the matter, there is no cause for interference with the impugned order.
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complications. In my opinion, the said decision is not a decision for proposition of law that application under Order 26 Rule 10A of CPC read with section 45 of the Evidence Act for sending document to handwriting expert cannot be made before commencement of the trial. The decision is therefore not applicable to the facts of the case.
SHARMILA U. DESHMUKH, J.
2 issues framed by the court
Whether an application under Order 26 Rule 10A CPC read with Section 45 Evidence Act for handwriting expert opinion can be made before framing of issues.
Whether the learned bench can send a disputed document for expert opinion when the opposite party disputes the signature before the trial commences.
Colour shows how this judgement treated each authority
J. L. Babu v. S. Gowri Shankar & Anr.Distinguished¶25
J. L. Babu v. S. Gowri Shankar & Anr., AIR 2009 Andhra Pradesh 203 · Who else cites this
2 provisions across 2 enactments
Shivaji Shrikant Mahadik
Vinayak Kashinath Natu
Sharmila U. Deshmukh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
