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Judgment
B.P. Routray, J
Heard Mr. M. Sinha, learned Advocate for the Petitioner. No-one appears for Opposite Party No.1 despite notice is made sufficient against him.
Present C.M.P. is directed against the order dated 16.07.2025 of learned Civil Judge (Sr. Divn.), Khurda passed in C.S. No.86 of 2005, wherein the prayer of the Petitioner to recall order dated 01.07.2025 has been refused.
Present Petitioner is Defendant No.1(a) and he earlier filed a petition for sending the signature of original Defendant No.1 (now deceased) for expert examination. The same having been refused by the learned trial court, Petitioner filed W.P.(C) No.17252 of 2010 and this Court vide order dated 06.01.2023 disposed of the said writ petition directing learned trial court to allow the application of the Petitioner dated 02.08.2009 for sending freshly available signature of Defendant No.1 for expert opinion. Thereafter the Petitioner filed another petition dated 20.03.2025 which was disposed of as not pressed in absence of Defendant No.1(a) (present Petitioner). He then filed another petition to recall said order dated 01.07.2025. Learned trial court upon hearing both the parties and taking note of the order of this Court dated 06.01.2023 passed in W.P.(C) No.17252 of 2010, rejected the prayer of the Petitioner to send the signature of original Defendant No.1 for expert opinion on the ground that Defendant No.1 died in the meantime.
It is true that original Defendant No.1 died long back on 16.12.2010 and this Court while passing the order dated 06.01.2023 (by co-ordinate Bench) was aware of the fact of such death of original Defendant No.1. This Court, therefore, directed to send the freshly available signature of original Defendant No.1. The operative portion of the order dated 06.01.2023 reads as follows:-
“xx .. xx .. In the circumstance, this Court finds, the observation of the trial court that there has been repeated approach of the defendant No.l-Petitioner on the self-same issue becomes erroneous. As a consequence, this Court allowing the application of the Petitioner dated 2.08.2009 for sending the signature freshly available for expert opinion, directs the trial court to send the required materials to the OFSL, Rasulgarh, Bhubaneswar for expert opinion at an early date.”
The learned trial court interpreted the same, as seen from the impugned order, to opine that upon death of original Defendant No.1, his fresh signature could not be made available and therefore the prayer of the Petitioner was rejected. But upon going through the entire order dated 06.01.2023 of this Court, the essence of order, as found, is that, to send the latest available signature of Defendant No.1 for the purpose of expert examination. Therefore, despite the death of original Defendant No.1 since 16.12.2010, the court has to see if the signature of said original Defendant No.1 is available as per the prayer of the Petitioner and proceed accordingly.
In the circumstances, as discussed above, the impugned orders dated 16.07.2025 and 01.07.2025 are set aside and the learned trial court is directed to send the latest available signature of original Defendant No.1 as per the prayer of the Petitioner for expert examination in terms of the order dated 06.01.2023 passed by this Court in W.P.(C) No.17252 of 2010.
The C.M.P. is disposed of as allowed.