IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9919 of 2010
Shivaji Vishnu Kshirsagar & Ors .. Petitioners
Versus
Sayaji Vitthal Kshirsagar & Anr. .. Respondents
Mr. P. B.Gujar for the Petitioners
Mr. Umesh Mankapure for Respondent No.1
CORAM : R.M.SAVANT, J.
DATE : 9th NOVEMBER, 2011
ORAL JUDGEMENT:
1. Rule, by consent of the parties made returnable forthwith and heard.
2. The Writ jurisdiction under Article 226 of the Constitution of India is invoked against the order dated 21-9-2010 passed by the Learned District Judge Satara, by which order, the application filed by the Respondents herein under Order 26 Rule 10A read with Section 151 of the Civil Procedure Code, was allowed.
3. Shorn of unnecessary details, a few facts which are necessary to be cited for the adjudication of the above Petition can be stated thus: The Respondent No.1 is the original Plaintiff and the Petitioners herein are the original Defendants. The Respondent No.1 filed Regular Civil Suit No.134 of 1990 for partition and possession. The subject matter of the said suit are 10 agricultural lands and two houses at Village Dhamner, Taluka Koregaon, District Satara. It is the case of the Respondent No.1 that the said suit properties are ancestral properties of the joint family and the same was with the common ancestor one Vishnu. The Petitioners herein i.e. the Defendants to the said suit filed their written statement and it was their contention that the Respondent No.1 has no claim to the properties in question as the Respondent No.1 is enjoying the properties of his adopted family with his father and is not concerned with the family of the Petitioners or suit properties. It was the case of the Petitioners that except the land Gat No.573 rest of the lands are self acquired properties of Vishnu who was working at Mumbai since the age of 20. It was further their case that the suit properties have been bequeathed to them by the said Vishnu by a Will Deed and that they are in possession of the said properties pursuant to the Will by virtue of which they have become owners. It appears that the Plaintiffs rested on the issue as regards genuineness of the Will executed by Vishnu in favour of the Defendants i.e. the Petitioners herein and in furtherance thereof, the Respondent No.1 filed an application for appointment of a Court Commissioner in the nature of hand writing expert to opine about the signatures of the said Vishnu on the Will Deed as well as some other documents. The said application filed by the Respondent No.1 came to be rejected by the Trial Court by order dated 1-3-2000.
It is required to be noted that the said order was not challenged further by the Respondent No.1 at the relevant time. The said Regular Civil Suit No.134 of 1990 came to be dismissed by the Trial Court i.e. the Learned Civil Judge Junior Division, Koregaon by Judgment and Order dated 4-4-2000. The fact that the application of the Respondent No.1 Exhibit 124 calling for report of the hand writing expert was referred to by the Trial Court in its Judgment.
4. Aggrieved by the said Judgment and Order dated 4-4-2000, the Respondent No.1 filed an Appeal being Regular Civil Appeal No.172 of 2000 in the District Court at Satara. In the said Appeal, the Respondent No.1 again filed an application for referring the documents in question being Exhibit 122, 53, 56 and 50/2 to the hand writing expert. The said application Exhibit 33 filed by the Respondent No.1 came to be allowed by the First Appellate Court and the documents in question were referred to the State Examiner of documents CID, Maharashtra State, Pune. Pursuant to the said Order State Examiner submitted his report dated 25- 4-2008. In the context of the controversy of the present petition, it would be relevant to note that the said hand writing expert opined that it was not possible to express a definite opinion as regards the identity or otherwise of the red enclosed signature at Exhibit Q1 with signatures at Exhibit N1 to N6 for want of contemporary natural signatures for the purpose of scientific examination. The matter thereafter rested there.
5. It appears that the Respondent No.1 again filed an application Exhibit 53 after a lapse of two years on 26-4-2010, again seeking that the report of a private hand writing expert be obtained, as regards the signatures of the said Vishnu. The said application Exhibit 53 came to be allowed by the First Appellate Court by the impugned order dated 21-9-2010. The gist of the reasoning of the First Appellate Court for allowing the said application was that the Will is crucial to the merits of the case and no prejudice could be cause to the other side i.e. the Petitioners herein, if the disputed signatures on the alleged Will and the admitted signatures of the Vishnu are sent to another hand writing expert to give an opinion as regards the signatures of the said Vishnu. As indicated above, it is the said order dated 21-9-2010 which is impugned in the present Petition.
6. The principal contention of the Learned Counsel for the Petitioners is that the second application filed by the Respondent No.1 in the First Appellate Court in the light of the rejection of the application by the Trial Court and the opinion given by the State Examiner of Document, was not maintainable. The Learned Counsel would contend that the Application was not maintainable also on the application of principles of res judicata or principles analogous thereto. The Learned Counsel would further submit that the application filed invoking Order 26 Rule 10A read with Section 151 of Code was misconceived as in the Appeal Court an application under Order 41 Rule 27 could only be filed for leading additional evidence. Per contra it is submitted by the Learned Counsel for the Respondent No.1 that since the Will Deed is a crucial document and since it is the case of the Plaintiffs that the said document is bogus and that the signatures are forged, it is necessary for the Court to arrive at a decision. The second application for appointment of a Court commissioner was therefore, maintainable. The Learned Counsel would contend that no prejudice is likely to be caused to the Petitioners as the Petitioners would be entitled to take appropriate steps including the cross examination if need be, contingent upon the report that would be submitted by the Court Commissioner.
7. Having heard the Learned Counsel for the parties, I have given my anxious consideration to the rival contentions. At the outset, it is required to be noted that it is undisputed position that the application filed by the Respondent No.1 in the Trial Court Exhibit 124 was rejected by the Trial
Court by order dated 1-3-2000. It is significant to note that though it is the case of the Respondent No.1 that the said Will Deed is crucial to the adjudication of the lease between the parties and though it was the case of the Respondent No.1 that the said Will Deed is bogus and the signatures are forged. The Respondent No.1 did not carry the matter further and let the matter rest after the said order dated 1-3-2000. The suit in question filed by the Respondent No.1 was thereafter dismissed by the Judgment and Order dated 4-4-2000. It is further required to be noted
that in the Appeal filed by the Respondent No.1 against the said Judgment and Decree dated 4-4-2000, he again filed an application Exhibit33 for referring the matter to the Government hand writing expert. The said application came to be allowed by order dated 10-8-2006, pursuant to which, the matter was referred to the State Examiner of documents. The State Examiner of documents by his report dated 25-4-2008 has opined that it is not possible to express a definite opinion as regards the identity or otherwise of the redenclosed signatures at ExhibitQ1 with signatures at Exhibits N1 to N6 for want of contemporary natural signatures for the purpose of scientific examination. It is pertinent to note that though the said order was passed on 25-4-2008, the Petitioner allowed the matter to rest there and thereafter after a period of about two years, the Petitioner filed Exhibit53 for referring the matter to a Private Hand Writing Expert. In the light of the opinion expressed by the State Examiner of documents who is a hand writing expert in so far as, the State Government is concerned, in my view, the third application Exhibit 53 filed by the Respondent No.1 was not maintainable in the aforesaid conspectus of the facts there is also merit in the submission of the Learned Counsel for the Petitioners that the same is hit by the principles of resjudicata or principles analogous thereto. The reliance is placed by the learned Counsel for the Petitioner on the Judgment reported in AIR 1960 SC 941 in the matter of Satyadhyan Ghosal & Ors. Vs. Smt. Deorjin Debi & Anr. The Apex Court in the said Judgment has held that the principles of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter against at a subsequent stage of the same proceedings. In the instant case, as indicated above, the application filed by the Respondent No.1 in the First Appellate Court was allowed and the State Examiner of documents has given his opinion vide his report dated 25-4-2008. The said report ought to have been given due credence as the State Examiner of documents has expressed the opinion that it is not possible to express a definite opinion as regards the identity or otherwise of the redenclosed signatures at ExhibitQ1 with signatures at Exhibits N1 to N6 for want of contemporary natural signatures for the purpose of scientific examination. It is required to be noted that it is not a case where the Respondent No.1 has led his hand on some contemporaneous
documents wherein the signatures of the said Vishnu appears, but the Respondent No.1 has referred to the self same documents for comparison of the signatures of the Vishnu. In my view, therefore, the First Appellate Court has erred in allowing the application Exhibit53 filed by the Respondent No.1 for appointment of Private Hand Writing Expert in the light of the report submitted by the State Examiner of documents. The First Appellate Court would be obliged to decide the Appeal filed by the Respondent No.1 on the basis of the material which is already on record. It is well settled that there has to be a finality in respect of the issue which is a subject matter of trial and the same cannot be allowed to be kept open indefinitely. In that view of the order, the impugned order dated 21-9-2010 passed on Exhibit53 by the Learned District Judge Satara, is required to be quashed and set aside and is accordingly quashed and set aside.
8 Rule is accordingly made absolute in terms of prayer clause (b) with parties to bear their respective costs.
(R.M.SAVANT, J.)
