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CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.27990 OF 2016
Shri Babasaheb Bapurao Jarande and ors. … Petitioners
Vs.
Smt. Sonabai Ankush Kolate
(Since deceased)
Through legal heirs and ors. … Respondents
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Mr.Sudhir V. Sadavarte, Advocate for the Petitioners.
None for the Respondents.
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ORAL JUDGMENT
1. By this petition filed under Article 227 of the Constitution of India, the petitioners are aggrieved by an order dated 16th September, 2016 rejecting the application of the petitioners under Ex.X-80 for sending the original Will to a finger print expert for his opinion as regards the thumb impression of the testator Ganpat Govind Jarande.
2. Mr.Sudhir V. Sadavarte, learned counsel for the petitioners would submit that since the written statement was amended wherein the execution of Will was denied, it was necessary to send the Will for examination of the thumb impression of the testator.
3. When this matter was listed on 9th December, 2016, this court had passed the following order:- “1. Heard Mr. S.V.Sadavarte, learned counsel for the petitioner.
2. Mr. Sadavarte submitted that the petitioner filed application Exh.80 for sending the original Will to finger print expert for his opinion as regards thumb impression of testator Ganpat Govind Jarande. By the impugned order, the learned trial Judge has rejected the application. He has taken me through the evidence of the attesting witness-Mr. Manikrao Memane. In particular in cross examination he was confronted with the thumb impression of the testator.
3. In view of the submissions, issue notice to respondents, returnable on 20.1.2017. Notice to indicate that subject to the time constraint and convenience of the Court, Court may consider disposing of the petition finally at the stage of admission. Notice shall further indicate that despite service, if respondents fail to appear, the Court may proceed to decide the petition on its own merits.
4. Till next date the trial Court will not proceed with the case. The petitioner will ensure that before the next date of hearing, the respondents are duly served. Hamdast is permitted.”
4. The ad-interim stay granted on 9th December, 2016 has continued till date.
5. Today when the matter is called out, none appears for the respondents despite notice as recorded in paragraph 3 of the order dated 9th December, 2016. Mr.Sadavarte submits that none has been appearing in the matter despite service. Accordingly, in view of the above I proceed to decide the petition.
6. The brief facts are that, earlier a suit for partition, separate possession and mesne profits was decreed on 28th November, 1994 in favour of the plaintiffs in respect of certain properties and the defendants (petitioners herein) were directed to hand over the share of the plaintiffs. The original plaintiffs died without seeing final outcome of the suit. Being aggrieved by the same, the defendants therein (petitioners herein) preferred RC Appeal No.860 of 1998 before the District Court, Pune. The petitioners thereafter filed amendment application pending Appeal in view of the arguments advanced at the time of hearing and particularly in view of the discovery of Will of Ganpat and thereby particularly contended that the grandfather i.e. Ganpat Govind Jarande had executed a Will on 20th June, 1971 and thereby bequeathed the suit properties in favour of defendant Nos.[1] and 2 and in view of the said Will, the Plaintiffs viz. Respondents herein had no right in the suit premises. The appeal was allowed on 29th April, 2015 pursuant to which the judgment and decree of the Trial Court was set aside. The matter was remanded with a direction to allow the petitioners herein to amend their pleadings, frame additional issues and permit both parties to adduce their evidence.
7. The defendants (petitioners herein) carried out the amendments as per the order of the District Court in respect of the disputed Will, which Will the plaintiffs in the said suit had denied.
8. After remand of the suit, the plaintiffs examined one witness and closed their evidence. The defendants (petitioners herein) examined defendant No.1 at Ex.60 and one Manikrao Memane at Ex.62. The said Manikrao Memane is an attesting witness to the disputed Will. His examination was over on 27th July,
2016.
9. The petitioners thereafter took out an application for verifying/comparing the thumb impression of the testator of the said Will viz. Late Shri Ganpat with his thumb impression on the documents filed in the tenancy proceeding with one Budhkar in view of the additional issue with regard to the execution of the Will by Late Ganpat. It was pleaded that since the execution of the Will was specifically denied by the plaintiffs, the said verification /comparison by handwriting expert was necessary.
10. The Civil Judge, Junior Division, Saswad vide its order dated 16th September, 2016 rejected the said application of the petitioners holding that it was not necessary or expedient to appoint handwriting expert or Court Commissioner for examination of thumb impression by passing the following order:-
11. I have heard learned counsel Mr.Sudhir V. Sadavarte and considered the arguments advanced by him.
12. Before proceeding further it would be apposite to set out Order XXVI Rule 10A of the Civil Procedure Code 1908 as under;- “Order XXVI Rule 10A Commission for scientific investigation -(1) Where any question arising in a suit involves any scientific investigation which cannot in the opinion of the court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court. (2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9.”
13. From the above order and rule it is clear that to have an opinion in respect of a question arising in a suit which involves any scientific investigation and which cannot be conveniently conducted before the court, the court may in the interests of justice, issue a commission to such person as it thinks fit directing him to inquire into such question and report thereon. The sole object of the above said provision is to get scientific investigation conducted only if it is necessary and expedient in the interests of justice.
14. Section 45 of the Evidence Act is also usefully quoted as under:- “Section 45 Opinions of experts- When the Court has to form an opinion upon point of foreign law or of science or art, or as to identity of handwriting finger impressions, the opinions upon that point of person specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.”
15. Under the aforesaid section when the court has to form an opinion upon a question as to the identity of the finger impression, the opinion of persons especially skilled in the field of finger impression is obtained as these questions are relevant facts.
16. The application preferred by the petitioners was for examining the thumb impression of the testator viz. Ganpat Govind Jarande on the Will which came to be denied pursuant to the amendment by the defendants (petitioners herein) cannot in my view be considered to be unnecessary or for prolonging the matter on one count or another.
17. If the plaintiffs, have specifically denied the thumb impression as well as the execution of the Will, then it is a relevant fact to ascertain whether the thumb impression on the Will was that of Late Ganpat or not and if that verification can be done by comparing the thumb impression on the Will with the thumb impression in the tenancy proceedings, then that should have been considered by the learned Trial Court. The court in my view would need to form an opinion as to whether the thumb impression in the disputed Will is of Mr.Ganpat Govind Jarande, which is not convenient without requisite skill or expertise. A scientific examination/verification/comparison of thumb impressions cannot be conveniently conducted by a court but by a person skilled in the science and therefore it would not only be expedient but also in the interests of justice that such a person be appointed as a Commissioner or as an expert. In fact order XXVI Rule 10A of the CPC as well as section 45 of the Evidence Act as discussed above lands support to this view. Section 68 of the Evidence Act does not prohibit this. A bare perusal of the prayers in the application clearly indicate that petitioners were desirous of such exercise by someone in the State Government to be appointed as Commissioner for such examination of the deceased testator’s thumb impression. It is not as if the petitioners were seeking to simply appoint a Court Commissioner to collect evidence. To say that the application is being made at a very belated stage or that the matter is very old one, in my view it is not a plausible explanation to reject such an application in as much as the need for such an examination/ verification has arisen only upon the denial of the Will by the plaintiffs and an amendment to the written statement pursuant to the order in appeal. The learned Civil Judge in my view erred in rejecting the application. In fact the same as discussed above would be necessary in the interests of justice. It would also be necessary to decide the lis between the parties.
18. In view of the above discussion, the impugned order dated 16th September, 2016 requires to be interfered with under the supervisory jurisdiction vested in this court under Article 227 of the Constitution of India. The impugned order is therefore set aside.
19. Learned Judge is directed to pass appropriate directions/order for appointing a finger print expert/Commissioner for examining/verifying/ comparing the thumb impression of the deceased Ganpat Jarande being the testator to the subject Will with his thumb impression in the documents filed in the tenancy proceedings.
20. Writ petition stands allowed in the above terms. No costs. (ABHAY AHUJA, J.)