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Judgment
L. Mohapatra, J.—This Writ Application is directed against the Order dated 14.1.2005 passed by the Learned Civil Judge (Senior
Division), Balasore in O.S. No. 542 of 2002-I allowing an application filed by the plaintiff-opposite party to call for certain documents.
As it appears from the impugned order the evidence had been closed from both the sides and at that stage the defendant-petitioner prayed for
examination of the signatures of the Testator of the Will in question by a handwriting expert. The matter came up to this Court and this Court
directed that the Will shall be sent to a Handwriting Expert.
After the said order was passed, the Will was sent to the Handwriting Expert and after receipt of the report, the plaintiff filed an application to
call for some records from the office of the Land Acquisition Collector, Addl. Civil Judge (Senior Division), Balasore and the Sub-Registrar,
Balasore to prove that the signatures appearing in the Will are by one and same person. The said petition was resisted on the ground of
maintainability and it was also contended that the signatures appearing in the documents called for by the plaintiff are not admitted signatures and,
therefore, there is no necessity to call for those records. The Learned Civil Judge in the impugned order having allowed the application, the present
Writ Application has been field challenging the said order.
Shri S. P. Mishra, the Learned Counsel appearing for the petitioner submitted that the Handwriting Expert who has submitted his opinion can be
examined and cross-examined in the suit and, therefore, there is no necessity of calling for any other document. Apart from the above, it was also
contended that the signatures appearing in the documents sought to be called for are not admitted signatures and, therefore, no fruitful purpose will
be served by calling for those documents. Shri Mohanty, the Learned Counsel appearing for the plaintiff-opposite party, on the other hand,
submitted that the documents called for are all Public Documents and the signatures of the Testator appearing in the said documents would clearly
prove that the signatures appearing in the Will are of the same person. According to Shri Mohanty, it is necessary to call for the records in order to
come to a just conclusion.
As it appears pursuant to order passed by this Court, the will in question had been sent to the Handwriting Expert only for the purpose of finding
out as to whether the signatures of the Testator appearing on the pages of the Will are by same or different. The Handwriting Expert on
examination of the Will submitted a report that the signatures appearing on the pages of the Will do not tally. After submission of the said opinion,
an application was filed by the plaintiff to call for certain documents from different offices and Court to prove that the Testator of the Will signs in
different ways filed an application. Admittedly, the defendant-petitioner nowhere admitted that the signatures appearing in the documents sought to
be called for are that of the Testator of the Will. Under these circumstances, if the documents are called for, the signatures appearing therein shall
have to sent to another Handwriting Expert for opinion as to whether they tally with the signatures appearing on the Will or not. The opinion of the
Handwriting Expert is not to be accepted automatically and the Court has to see as to whether such opinion can be accepted after looking into the
deposition of the Handwriting Expert. Apart from the above, as rightly pointed out by Shri Mishra, the Learned Counsel appearing for the
petitioner, even if the documents are called for, it may not be possible on the part of the Court to form an opinion merely looking into the
documents sought to be called for and the Court may have take help of a Handwriting Expert. I am of the view that such exercise is not necessary,
as the plaintiff shall get opportunity to cross-examine the Handwriting Expert who has already examined the Will.
In view of the reasons stated above, I am of the view that the order impugned before this Court is liable to be set aside and accordingly, the
Writ Application is allowed and the impugned Order dated 14.1.2005 passed by the Civil Judge (Senior Division), Balasore in Original Suit No.
542 of 2002-I is set aside. It is further directed that the Handwriting Expert, if not examined, shall be examined and the plaintiff shall be given full
opportunity to cross-examine the Handwriting Expert.