Maya Jaiswal And Another vs Suresh Chandra Shaw

Although the matter is appearing under the heading “Extension of Interim Orderâ€, by consent of the parties, the revisional application is taken up

for hearing. The defendants in a suit, filed by the opposite party for eviction of alleged trespasser, have preferred the instant revisional application. In

the said suit, the opposite party averred that one Nitish Jaiswal, the predecessor-in-interest of the defendants/petitioners, was a licensee in respect of

the suit premises and on the death of the said Nitish Jaiswal, the petitioners forcibly entered as trespassers in the suit premises. No averment as to the

existence of any written license agreement found place in the plaint. Subsequently, when the first witness of the plaintiff (P.W.1) was being examined,

a purported license agreement dated November 2, 2011 was tendered to such witness on behalf of the plaintiff/opposite party and the same was

marked as exhibit, with objection.

Thereafter, prior to leading their own evidence, the petitioners filed an application under Order XXVI Rule 10A of the Code of Civil Procedure, read

with Section 45 of the Evidence Act, 1872 and Section 151 of the Code of Civil Procedure, praying for appointment of a handwriting expert for

comparing the signature of Nitish Jaiswal (since deceased) as appearing in the purported license agreement dated November 2, 2011 with the

signatures of the said Nitish Jaiswal as appearing in his passport and PAN Card. By virtue of the impugned order dated November 28, 2017, the court

below rejected such application for appointment of handwriting expert primarily on the grounds that there is no such averment in the written statement

challenging the signature of Nitish Jaiswal and it was not the case of the defendants in their written statement that the license agreement in question

was manufactured.

Upon hearing both sides, it is evident that although the plaintiff/opposite party alleged that Nitish Jaiswal (since deceased) was a licensee in respect of

the suit premises, the opposite party never made any averment as to the existence of any written license agreement. As such, there could not arise

any question of the defendants/petitioners challenging the veracity of the signature of the said Nitish Jaiswal in the purported license agreement, since

there was no averment at all in the plaint as to such document.

`The first opportunity which the petitioners got to controvert the signature in the said document was upon the document being tendered to the P.W.1

and the document being marked as exhibit (with objection). In fact, it is seen from the photocopy of the certified copy of the cross-examination of

P.W.1 that the petitioners extensively cross-examined the said witness as to the veracity of the document and the authenticity of the purported

signature therein.

Thereafter, prior to leading their own evidence, the petitioners came up with this application for comparison of signatures, thereby availing the first

possible opportunity to do so. As such, the trial court was entirely without jurisdiction in refusing the said vital piece of evidence, being the proposed

report of the handwriting expert, on the basis of reasons which were irrelevant for deciding such a prayer.

Accordingly, C.O. No. 299 of 2018 is allowed on contest, thereby setting aside the Order No.46 dated November 28, 2017 passed by the Judge, Sixth

Bench, City Civil Court at Calcutta in Title Suit No.474 of 2015 and directing the trial court to immediately appoint a handwriting expert for the

purpose of comparing the signature of Nitish Jaiswal (since deceased) as appearing in the purported license agreement dated November 2, 2011 with

the signatures of the said Nitish Jaiswal in his passport and PAN Card. CAN 2584 of 2018, which is treated to be in the day’s list, along with

CAN 2049 of 2018, which is already appearing in the day’s list, are also disposed of accordingly. There will be no order as to costs.