Disposed¶19

Priti Datta and Ors. v. Anima Dey and Anr.

Calcutta HC5 Feb 2024CO/365/2023

Case brief

AI extract

What is this about?

Handwriting expert; Section 45 Indian Evidence Act 1872; Section 151 CPC; written statement to precede expert appointment; Will; testator's signature; grounds of challenge; ex parte hearing; removal from ex parte board; one last chance; Barasat; North 24-Parganas; OS No.34 of 2017; C.O. No. 365 of 2023; Shampa Sarkar, J.; revision disposed of; no costs.

What did the court decide?

Revisional application disposed of; defendants left free to approach the learned court below for removal of the suit from the ex parte board and one last chance to file their written statement; no order as to costs; parties to act on the server copy of the order. ¶19

Priti Datta and Ors. Vs Anima Dey and Anr. — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the application under Section 45 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure (for appointment of a handwriting expert to examine the testator's signature on the Will) had to be disposed of before the defendants filed their written statement. +1 more

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Court's answer

The defendants' prayer that the application under Section 45 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure be disposed of (thereby appointing a handwriting expert) before they file their written statement is incorrect.

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Ratio / Principle

On a prima facie view, unless the defendants file their written statement, thereby disclosing their grounds of challenge, and the document is tendered before the court, the question of appointment of a handwriting expert would not arise.

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Key takeaways

The court below had rightly directed the defendants to file their written statement before the application was considered.ratio¶16
Since the suit was fixed for ex parte hearing during the pendency of the revision, the defendants should approach the learned court below praying for removal of the suit from the ex parte board and for one last chance to file their written statement; the learned court shall consider such application and pass necessary orders.ratio¶17
This Court has not gone into the merits of the issues involved in the suit.

Detailed headnote1 paragraphs

Revisional application (C.O. No. 365 of 2023) against the order dated December 2, 2022 of the learned Additional District Judge, 1st Court at Barasat, North 24-Parganas in OS No.34 of 2017 (CIS Registration No.22 of 2017), whereby the defendants' application under Section 45 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure (for appointment of a handwriting expert to examine the testator's signature on a Will) was not fixed for hearing and the defendants were directed to file their written statement. Held: the prayer to decide the expert application first is incorrect; on a prima facie view, unless the defendants file their written statement disclosing their grounds of challenge and the document is tendered before the court, the question of appointing a handwriting expert would not arise; the court below rightly directed the written statement to be filed first. As the suit had meanwhile been fixed for ex parte hearing by order dated January 20, 2024, the defendants were to approach the court below for removal of the suit from the ex parte board and for one last chance to file the written statement. Revisional application disposed of; no order as to costs; merits of the suit not examined.

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05.02.2024 Sl. No.3(ML) srm

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C.O. No. 365 of 2023

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Smt. Priti Datta & Ors.

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Versus

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Smt. Anima Dey & Anr.

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Mr. Surajit Samanta, Mr. Biswajit Samanta, Ms. Sohini Samanta

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…for the Petitioners.

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The revisional application arises out of an order dated December 2, 2022 passed by the learned Additional District Judge, 1^st Court at Barasat, North 24-Parganas in OS No.34 of 2017 bearing CIS Registration No.22 of 2017.

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By the order impugned, the learned court below did not fix the application under Section 45 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure for hearing, but directed the defendants to file their written statement.

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Mr. Samanta, learned Advocate appearing on behalf of the defendants submits that unless the application under Section 45 of the Indian Evidence Act, 1872 read with Section 151 of the Code of Civil Procedure was disposed of, thereby appointing a handwriting expert to compare and examine the

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signature of the testator of the Will, the defendants would not be in a position to file their written statement.

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In my opinion, such prayer is incorrect.

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In my, prima facie , view unless the defendants file their

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written statement, thereby disclosing their grounds of challenge and the document is tendered before the court, the question of appointment of a handwriting expert would not arise.

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Thus, the court had rightly directed the defendants to file their written statement, before the application was considered.

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It appears that by an order dated January 20, 2024, the learned court below has fixed the suit for ex parte hearing during the pendency of the revisional application. In my opinion, the defendants should approach the learned court below praying for removal of the suit from the ex parte board and pray for one last chance to file their written statement. The learned court shall consider the application and pass necessary orders.

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This Court has not gone into the merits of the issues involved in the suit.

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The revisional application is, thus, disposed of.

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There shall be no order as to costs.

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Parties are directed to act on the basis of the server copy

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of this order.

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