Laxmichand vs Ramprasad And Ors

The petitioner-plaintiff (hereafter `the plaintiff') is aggrieved of the order dated 6-5-2019 passed by the Civil Judge Atru District Baran in suit No.6/2011 dismissing his application under Section 45 of the Evidence Act, 1872 for seeking opinion of handwriting expert regarding thumb impression on the will dated 2-1-1986.

The facts of the case are that on 3-2-2011 the plaintiff filed a suit for mandatory injunction under Section 6 of the Specific Relief Act. During the course of proceedings the plaintiff moved an application under Section 45 of the Evidence Act, 1872 claiming that the property owned by him was originally bequeathed through a registered will dated 19-9-1984 executed by his uncle Onkar. The respondent-defendant (hereafter `the defendant') claimed ownership of the suit property under the will dated 2-1-1986 also purportedly executed by Onkar. Alleging the same to be forged, the plaintiff moved an application under Section 45 of the Evidence Act praying for examination of the will dated 2-1-1986 propounded by the defendant with regard to the thumb impression thereon attributed to be that of Onkar. The defendants opposed the application on the ground that the plaintiff had not exhibited his will dated 19-9-1984 and with an intent to dispute the defendant's will dated 2-1-1986 duly exhibited and proved the application in issue was filed.

The trial court considering the arguments of both the parties dismissed the application on the ground that the suit was at the stage of final arguments and the question regarding thumb impression of Onkar could be proved by the plaintiff through his evidence. Hence in this view of the matter the trial court held expert's opinion was not required nor in the interest of justice. Hence this petition.

Heard counsel for the plaintiff and perused the impugned order dated 6-5-2019 passed by the trial court.

The discretion of the trial court under Section 45 of the Evidence Act to seek expert opinion is inter alia dependent on the facts of the case before it. Inordinate delay in filing the application for seeking opinion of an expert is a good ground to refuse to exercise the discretion by the trial court. In the instant case the underlying suit was pending at the stage of final arguments when the application was pursued. Further the defendant propagating Onkar's will dated 2-1-1986 had to discharge the burden as to its authenticity with the plaintiff right to cross examine the defendant and his witnesses thereon and lead his own evidence. The reasons expounded by the trial court in passing the impugned order are cogent and well considered. I would be disinclined in the facts of the case to exercise this court's supervisory jurisdiction under Article 227 of the Constitution of India which can be exercised only when the impugned order passed by the court below suffers from any perversity, patent illegality, or misdirection in law or error of jurisdiction. No such situation obtains in the instant case to warrant interference by this court.

There is no force in the petition. It is accordingly dismissed.