Mohru @APPELLANT@Hash Additional Civil Judge J.D

Impugned in this petition is the order dated 16.12.2010 passed by Addl. Civil Judge (Jr. Division) N.01, Jaipur whereby the trial court has, on an

application under Section 45 of the Evidence Act filed by the respondents-plaintiffs (hereafter ‘the plaintiffs’) in a suit for cancellation of the

Will dated 26.8.1969 executed by one Mahadev S/o Jagannath in favour of one Narayan S/o Fatta, directed that the thumb impression of the testator

Mahadev and the two attesting witnesses Birda and Nathu on the Will in issue be sent for scientific examination at the Government’s Forensic

Science Laboratory for comparison with their thumb impression on documents filed with the trial court.

Mr. Yash Sharma appearing for the petitioners-defendants (hereafter ‘the defendants’) submitted that the order aforesaid dated 16.12.2010 is

not in a judicious exercise of the trial court’s discretion inasmuch as there was no necessity therefor at-least in respect of the FSL examination of

the thumb impressions of the witnesses Birdha Jat and Nathu Devanda who had in their evidence in a different proceeding before the revenue court

admitted their thumb impressions on the Will dated 26.8.1969 as attesting witnesses. Mr. Yash Sharma submitted that in any event Section 68 of the

Evidence Act, 1872 as also Section 63 of the Indian Succession Act, 1925 provide for the mode of proof of Wills and no other resort for such proof

can be had such as by way of a report of expert opinion from Forensic Science Laboratory by resort to Section 45 of the Evidence Act, 1872.

Mr Yash Sharma further submitted that in any event the impugned order ought to have recorded the satisfaction of the trial court that the pass-book

and the application for grant of loan to the Hathoj Gram Seva Sahkari Samiti Ltd., Hathoj, purportedly bearing the thumb impressions of Mahadev

were genuine and proved documents. Without such satisfaction, the trial court had no jurisdiction to require the purported thumb impressions of

Mahadev on the pass book and his loan application to be sent to FSL for comparison with his thumb impression on the Will dated 26.8.1969. Mr. Yash

Sharma relied upon the judgment of this Court in the case of Samandar Singh through LR and Another Versus Murlidhar and Others {2012 WLC Raj.

(UC) 631} as also on the judgment of the Apex Court in the case of Kanchansingh Dholaksingh Thakur Versus State of Gujarat {1979 (4) SCC 599}

in support of his contentions.

Per contra Mr. Manoj Bhardwaj appearing for the plaintiffs submitted that the impugned order dated 16.12.2010 has been passed in the fair discretion

of the trial court which has been reasonably exercised on the basis of documents lawfully obtained by the plaintiffs from the Hathoj Gram Seva

Sahakari Samiti, (which bore the thumb impression of deceased Mahadev) and filed with the application under Section 45 of the Evidence Act. The

said documents relate back to time much prior to the initiation of the litigation and their authenticity cannot be doubted. Mr. Manoj Bhardwaj further

submitted that the entire purpose of any trial is to arrive at the truth and where the opinion of an expert such as from a government FSL is to be

obtained with regard to the genuineness of a document - in the instant case the thumb impression of Mahadev and the two witnesses Birda Jat and

Nathu Devanda, the defendants cannot be even remotely be prejudicially affected moreso when they will have the opportunity to bring contrary

evidence before the trial court and subject the plaintiffs to cross-examination.

Heard. Considered.

The power under Section 45 of the Evidence Act, 1872 is discretionary in nature. A discretionary order can be interfered with when capricious or

based on a misapplication of an underlying principles of law. An application under Section 45 of the Evidence Act, 1872 seeks to bring on record

expert opinion inter-alia is a matter of science. The issue of a disputed thumb impression being or not being of one of whom it is attributed is indeed a

matter of science as it cannot be reasonably determined one way or the other by the naked eye even of a Judge â€" a layman on such matters. The

documents relied upon by the plaintiffs i.e. the pass book and the loan application to the Hathoj Gram Seva Sahkari Samiti Ltd., Hathoj, purportedly

carrying the thumb impressions of Mahadev relate back several years before the commencement of the litigation with regard to the cancellation of the

Will dated 26.8.1969. In the plaintiffs’ application under Section 45 of the Evidence Act, the aforesaid documents relied upon were indeed baldly

denied but material to the contrary as to their unreliability was not brought on record by the defendants.

In a previous litigation between the parties before the revenue courts, proceedings wherefrom were carried to this Court in SBCWP No. 3272/2001

decided on 22.2.2005, this Court observed that “so far as the finger print is concerned, parties are at liberty to raise this request before the civil

court.†The application by the plaintiffs under Section 45 was also stated to be availed in the aforesaid observations of the Court. Besides, alongwith

the application under Section 45 of the Evidence Act, 1872 the plaintiffs had filed a report dated 13.12.2000 of a Hand Writing and Finger Print Expert

as obtained by them, one Kishna Charan who stated that he had examined three prints on the photostat copy (certified) of the Will dated 26.8.1969

marked as Ex.-2 in case no. 144/1997 Mohru Versus Sanvta pending in the court of Sub Divisional Officer, Court No.1 Jaipur and the impressions

marked as X, Y and Z stated to be of Mahadev, Nathu and Barda on examination appeared to be nothing but patches of ink.

Reliance by Mr. Yash Sharma in the case of Samandar Singh through LR Versus Murlidhar (supra) is not apposite for the said case turned on its own

facts, wholly distinct from the facts in the instant case. The case of Kanchansiingh Dholaksingh Thakur Versus State of Gujarat (supra) related to

criminal appeal before the Apex Court, where it was held that in order to rely on the evidence of expert, the court must be fully satisfied that such

expert was truthful, reliable and fully adept in the art of identification of hand writing in order to opine whether the alleged hand writing has been made

by a particular person or not. There is noting in the aforesaid judgment of the Apex Court as a ratio-decidendi to guide the trial court or this Court on

the manner of exercise of discretion under Section 45 of the Evidence Act.

I am of the considered view that in fact there can be no such manner of straitjacketed guidance for exercise of discretion for it is the function of the

trial court to ascertain in the facts before it as to whether expert evidence which is sought to be brought on record by one of the contesting parties

relates to a matter of science which would facilitate the search for truth and a just and fair determination of the lis before it. Hence on the material

before it, the trial court cannot be held to have acted capriciously in exercising its discretion while passing the impugned order. Besides, I can see no

prejudice to the defendants therefrom as they would be free to cross-examine the concerned expert in the event of the FSL report being to their

detriment and also lead their own defence evidence to generally negate the plaintiffs’ case. No manifest injustice therefore, flows to the

petitioners-defendants from the impugned order. There is thus no warrant to interfere with the said order dated 16.12.2010 in the exercise of this

Court’s supervisory jurisdiction under Article 227 of the Constitution of India.

The petition is dismissed.

It is however clarified that while remitting the thumb impressions of Mahadev and the two attesting witnesses for comparison with their thumb

impressions on the Will dated 26.8.1969 the trial could should take care that documents not on record before it is not sent to the FSL.

Post Script

Since the suit for cancellation of the Will dated 26.8.1969 is pending before the trial court since the year 2000, the trial court is directed to dispose of

the said suit, if possible, within six months from the receipt of FSL examination report. Petition accordingly disposed of.