Babaji Charan Prusty and Others vs Panchama Jagadala and Others

Biswanath Rath, J.—This Civil Miscellaneous petition is an application Under Article 227 of the Constitution of India filed challenging an order dated 09.7.2015 passed by the Civil Judge (Senior Division), Boudh in C.S. No. 43 of 2008 in dismissing an application at the instance of the defendant No. 3, the present petitioners for sending the admitted signature of the plaintiff - Opp. party for their expert opinion.

Short facts involved in the case is that plaintiff-Opp. party instituted C.S. No. 43 of 2008 for declaration that the plaintiff is entitled to Rs. 2,47,000/- which amount has been withdrawn by manipulating his signature along with other consequential reliefs. In the suit, it was alleged that defendant Nos. 1, 2 and 4 are directly involved with the active knowledge to the above misappropriation of the alleged amount and therefore are jointly and severally liable for the loss and damage.

In opposition, the defendant Nos. 2 and 3 filed written statement jointly denying the averments in the plaint flatly, thereby specifically mentioning therein that these defendants have no knowledge about the sanction as well as execution of work by the plaintiff as well as the preparation of bill and issuance of cheque and deposit thereof. Other defendants i.e. defendant Nos. 1, 5 and 6 though filed separate written statement but in the line of written statement filed by the defendant Nos. 2 and 3.

During course of trial, defendant Nos. 2 and 3 i.e. the present petitioners filed a petition U/Or. 26, R. 1A of the C.P.C. to send the withdrawal slip as well as the specimen signature of the plaintiff to the Handwriting Expert for examination and opinion. Application was allowed by the trial Court with direction to the defendant Nos. 2 and 3 to take step for sending the withdrawal slip with specimen signature of the plaintiff to SFSL Bhubaneswar. Simultaneously plaintiff was also asked to place his signature before the Court and the said signature was also sent for comparison and expert opinion. During course of investigation for expert opinion, SFSL, Bhubaneswar sent a request letter to the trial Court to send the admitted signature of the plaintiff which is nearer to the date of alleged crime. In absence of such document with the defendants, they filed a petition in the trial court for directing the plaintiff to provide such document for investigation purpose. Consequently plaintiff filed a memo mentioning therein that his such signature is available in Boudh Co-operative Central Bank and in I.C.C. Case No. 23 of 2008 in the file of S.D.J.M., Boudh. Subsequently plaintiff also filed a petition to call for the documents vide G.R. No. 226 of 2008 wherein he has put his signature. Defendants filed objection to such attempt but however trial Court was pleased to allow the prayer of the plaintiff and accordingly send the complaint petition and the vakalatnama which were being called for in due process. Basing on a thorough investigation, the Hand Writing Expert submitted its report on 20.6.2015. Defendant Nos. 2 and 3 while objecting to the report once again prayed to send the specimen signature of the plaintiff which were sent earlier for comparison with the withdrawal forms. Upon hearing the parties, learned trial Court was pleased to reject the prayer vide his order dated 09.7.2015.

In assailing the said order of rejection, the defendant Nos. 2 and 3 submitted that since beginning these defendants are disputing the alleged vakalatnama as well as the complaint in I.C.C. Case as sought for by the plaintiff therefore these documents ought not have been the basis of the investigation of expert opinion. It is therefore claimed by the defendant Nos. 2 and 3 that their case has not been properly considered. The petitioners further alleged that since the petitioners had a genuine cause, the trial court erred in observing that the petitioners are trying to linger the proceeding.

Sri Pattnaik, learned counsel appearing for the plaintiff-Opp. party submitted that there has been proper consideration of the case of the petitioner and as such there is no illegality in the impugned order. Further by filing application after application, the petitioner not only tried to confuse the whole issue but also all through attempting to delay the trial of the main proceeding.

Heard the learned counsel for the petitioners and the Opp. parties. Perused the impugned order. On receipt of the requisition of the Court for Expert''s report on the particular subject, the S.F.S.L., Bhubaneswar since found it was difficult to have an expert report basing on the materials available with it, it very fairly wrote back the trial court to provide further materials for real assistance in preparing the expert report. Since the defendants could not be able to obtain the signature of plaintiff nearer to the alleged crime, they filed a petition before the trial court to direct the plaintiff to give his signature which is nearer to the date of crime. Pursuant to such development, plaintiff-Opp. party filed a memo mentioning therein that his signature is available in Boudh Co-operative Central Bank and I.C.C. Case No. 23 of 2008 in the file of S.D.J.M., Boudh. Subsequently the plaintiff also filed another petition to call for the document vide G.R. Case No. 226 of 2008 wherein he had put his signature. No doubt defendants objected to such attempt of the plaintiff-Opp. party but the trial Court allowed the petition of the plaintiff and after making available of the complaint petition and the Vakalatnama in ICC Case No. 23 of 2008 were all send for expert examination. In the mean time depending on the documents available with the SFSL, Bhubaneswar a report is also submitted in the trial Court. The defendant Nos. 2 and 3 never challenged the order passed by the trial court on the application at the instance of the plaintiff. On the other hand they allowed the said order to operate, resultantly a report is already submitted in the trial Court. In absence of challenge to the order passed on the application of the plaintiff, the defendant Nos. 2 and 3 estopped from filing any other application, resultantly this Court does not find any legal error in the impugned order. The petitioners are not justified in challenging the report under the above circumstances and they are bound to suffer for their own latches. This Court observes that the trial Court has rightly assessed the entire dispute involved in the matter and has thus arrived at a just and legal conclusion.

Under the above facts and circumstances, this Court finds no scope to interfere in the impugned order in exercise of its power under Article 227 of the Constitution of India and thus dismiss the Civil Miscellaneous Petition. However, there is no order as to cost.