Oral Judgment

1. The present petition is filed under Article 227 of the Constitution of India, 1950. The petitioner - Original Plaintiff has prayed for following reliefs in the petition :-

          (A) YOUR LORDSHIPS be pleased to admit and allow this petition;

          (B) YOUR LORDSHIPS be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 15.4.2025 (Annexure-A) passed by Ld. Additional Civil Judge, Vapi on application below Exh. 80 in Regular Civil Suit No. 76 of 2021, and further be pleased to grant the application Exh.80, as prayed for, in the interest of justice;

          (C) Pending admission, hearing and final disposal of this application, YOUR LORDSHIPS may be pleased to stay the further proceedings of Regular Civil Suit No.76 of 2021 pending in the court of Ld. Additional Civil Judge, Vapi, in the interest of justice;

          (D) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed fit and proper, in the interest of justice and equity;

2. Heard learned advocate Mr. Manan A Shah for the petitioner and learned senior advocate Mr. Devan Parikh assisted by learned advocate Mr. Hari K Brahmbhatt for the respondent.

3. Rule returnable forthwith. Learned senior advocate Mr. Devan Parikh waives service of notice of Rule on behalf of respondent.

4. Upon request of learned advocates for the respective parties, the present petition is taken up for final hearing.

5. The parties are referred to as per the original status in the suit. The plaintiff - petitioner has filed suit for cancellation of a registered sale deed dated 04.02.2014 executed pursuant to an alleged power of attorney and the entry mutated in the revenue record pursuant to a registered sale deed dated 04.02.2014 to be declared as illegal, null and void together with a relief of permanent injunction restraining defendant from selling or assigning plaintiff's undivided portion to any third person. During the pendency of the oral evidence of plaintiff, an application Exh. 80 was submitted by the plaintiff under Order 26, Rule 10A of the Code of Civil Procedure (hereinafter referred to as "the Code"). The plaintiff prayed for sending Exh. 71, 72, 73, 75 and 77 being bank slips and cheques to FSL for the purpose of comparison and inspection. After considering the submissions of learned advocates for the parties, the learned Court below rejected the application on 15.04.2025. Being aggrieved and dissatisfied with the impugned order, plaintiff - petitioner is before this Court.

6. Learned advocate for the plaintiff - petitioner submitted that the suit land being Survey No. 71, Block No. 95 admeasuring about 14265 sq meters was jointly purchased by plaintiff and defendant, who is the uncle in relation, by a registered sale deed dated 08.05.2009 from erstwhile owners Shaileshbhai Balvwantrai Desai and an entry of the registered sale deed dated 08.05.2009 was mutated in the revenue records on 06.07.2009. As defendant is the elder brother of plaintiff's father, defendant was managing the properties and defendant obtained signatures on certain papers. The defendant also retained passbook of plaintiff's bank account together with signed cheque book containing cheques. When a notice from Mamlatdar office was received on 31st August, 2021, plaintiff found that pursuant to an alleged power of attorney, the share of plaintiff has been sold to defendant himself by a registered sale deed dated 04.02.2014. The plaintiff found that the defendant has committed a fraud by selling the share of plaintiff pursuant to the power of attorney which was never executed by plaintiff in favour of defendant.

          6.1 It is also submitted that plaintiff has examined Assistant Manager of Karur Vysya Bank, Surat (Exh. 67) as witness and the said witness produced original bank pay slips and cheques vide Exh. 71, 72, 73, 75 and 77. The bank pay slips and cheques were written in the handwriting of one person and for bringing the truth on record, an application under Order 26 Rule 10A of the Code for sending the disputed documents to FSL was filed. It is further contended that the defendant who was in possession of signed cheques, passbook of plaintiff's bank account as well as of his father's bank account, defendant took advantage of being elder brother of plaintiff's father, sold the suit land to himself and routed the money from the bank account of plaintiff into his father's account and from there to defendant's account. Considering the question raised by the plaintiff, the documents are required to be sent to FSL for comparison of handwriting and inspection thereof. The learned Trial Court has exceeded its jurisdiction and compared the figures and words reflected in disputed documents and came to a conclusion that the words and figures appears to be of different persons. The said findings are not only perversed but also against the settled position of law.

          6.2 In support of his submissions, learned advocate for the petitioner has relied upon the decision in the case of Deepakkumar Jamnadas Prajapati vs. Binaben Shankarbhai Desai reported in 2025(0) AIJEL-HC 250423. The Co-ordinate Bench of this Court in the aforesaid decision has relied upon the decision of Rama Avatar Soni vs. Mahanta Laxmidhar Das And Ors. reported in (2019) 11 SCC By relying upon the aforesaid two decisions, it is contended by learned advocate for the petitioner that in the cases where genuineness of the signatures on disputed documents are cropped up, it is necessary to have expert testimony regarding handwriting, and in such cases, opinion from handwriting experts are crucial to ensure that truth surfaces on record. It is also submitted by learned advocate for the petitioner that if the documents are sent to FSL Authority for comparison and inspection, the rights of the defendants would not be affected adversely. The report of the FSL Authority would be helpful to the learned Trial Court for deciding the controversy. Except above, no other submissions are made.

7. Per contra, learned senior advocate Mr. Devan Parikh for respondent has supported the impugned order and submitted that, on perusal of the impugned order, no illegality is found in rejecting the application. It is the contention of the learned Senior Advocate for the respondent that the application for sending the disputed documents to FSL was submitted after plaintiff found that he has no case in the proceedings. Learned senior advocate has taken this Court through certain replies given by plaintiff in the cross-examination. It is submitted that plaintiff has admitted in the cross-examination that he has only six percent share in the suit land and the plaintiff has not lodged any criminal complaint for the alleged fraud and forgery, plaintiff has not produced any of his income tax returns for the relevant period, which were important evidences to establish whether the amount of sale consideration has been received by plaintiff or not.

          7.1 Learned senior advocate for respondent further submitted that it is not the specific case of the plaintiff that the defendant has committed forgery and has signed the cheques and filled up paying slips of his bank account. A statement is made by the plaintiff in the application that the writings on the disputed documents appears to be of same person. On this assertion, disputed documents cannot be sent for inspection and comparison to FSL Authorities.

          7.2 Learned senior advocate for respondent has also referred Rule 10A of Order 26 of the Code and contended that, only in the opinion of the Court, if scientific investigation is required, the Court may issue a Commission directing him to inquire into such question and report thereon to the Court. The purpose of scientific investigation is not to help the party to gather evidence.

          7.3 Learned senior advocate for the respondent has also relied on Section 73 of the Indian Evidence Act, 1872, ("the 'Act' for short"). It is submitted that under Section 73 of the Act, the Court has power to make disputed and admitted signature for just conclusion. In the present case, the learned Court below has exercised its powers under Section 73 of the Act, and came to a conclusion that the words and figures appear on disputed documents are of different persons. And such finding cannot be questioned in writ petition filed under Article 227 of the Constitution of India.

          7.4 In support of his submissions, learned Senior Advocate has relied upon the decision in the case of Babubhai Mulchanddas Kapadia vs. Ishwarlal Devchand Kabrawala reported in 1974 (0) AIJEL-HC 201121 and in the case of Ajit Savant Majagvai vs. State of Karnataka reported in 1997 (0) AIJEL-SC 741. Relying upon the aforesaid two decisions, it is contended by learned senior advocate that the Court has power to compare disputed signatures with the admitted signatures as power is available under Section 73 of the Act.

8. By distinguishing the decisions relied upon by learned advocate for the petitioner, learned senior advocate for respondent contended that in both the decisions, the allegation was against a specific person whereas in the present case, it is not the allegation of plaintiff that disputed documents are in the handwriting of defendant. Except above, no other submissions are made.

9. I have considered the submissions of learned advocates for the parties and on perusal of the papers, it appears that dispute is revolving around Exh. 71, 72, 73, 75 and 77 which are in the nature of paying slips of plaintiff's bank account and the cheques of plaintiff's bank account together with paying slips of plaintiff's father's bank account as well as defendant's bank account. The application Exh. 80 is tendered by plaintiff seeking aforesaid disputed documents to be sent to handwriting expert of FSL office for comparison and inspection and thereafter to submit its report. It is noticed by this Court on perusal of the plaint that plaintiff has asserted co-ownership rights over the suit land alongwith defendant and other persons. Defendant, according to plaintiff, is the elder brother of plaintiff's father. The plaintiff has alleged in the plaint that, defendant, being the elder brother of plaintiff's father was managing the affairs with regard to suit property and the defendant obtained signatures on certain papers without making them read. The defendant was also in possession of passbook and blank signed chequebook of plaintiff's bank account. When plaintiff received a notice from Mamlatdar office on 31st August, 2021, plaintiff came to know that defendant pursuant to a bogus power of attorney, executed a registered sale seed dated 04.02.2014 in his name, and, therefore, the present suit came to be filed for cancellation of the registered sale deed and the mutation of entry pursuant to the said registered sale deed. The plaintiff, after recording of his oral evidence, made an application to issue a witness summons of Karur Vysya Bank. The Assistant Manager of the said bank during his deposition produced original cheques and paying slips of plaintiff's bank account, defendant's bank account and plaintiff's father's bank account. The said disputed documents are sought to be sent to FSL authorities for comparison and inspection.

10. There is no grievance between the parties that in the application Exh. 80, the plaintiff has alleged that the handwriting on bank payslips as well as on the cheques are of one person. The plaintiff has not alleged in the application that the alleged handwritings are of defendant. The learned Trial Court while rejecting the application has compared handwritings on Exh. 71, 72, 73, 75 and 77 and came to a conclusion that the words and figures mentioned in disputed documents are of different persons. The powers which are excercised by learned Trial Court is as per settled proposition of law.

11. The disputed documents which are placed at page Nos. 63 to 67 of the compilation of documents would also suggest that disputed handwritings are of different persons. Moreover, in absence of any positive assertion in the plaint as well as in the application that disputed documents are in the handwriting of defendant, and finding by learned Trial Court in deciding an application under Order 26, Rule 10A would not give rise to challenge under Article 227 of the Constitution of India. The powers under Order 26, Rule 10A can be exercised by Court only if in the opinion of a Court it is necessary or expedient in the interest of justice, issue a Commission directing him to inquire into such question. Thus, it is a discretionary power given to Court either to issue Commission or to reject issuance of Commission. If the discretion exercised by learned Trial Court is within the parameters of law and is not arbitrary or illegal, High Court would not interfere in such findings. Findings recorded by learned Trial Court, in my view, are tentative, so far as the application Exh. 80 is concerned. Therefore, I do not find any perversity in the order impugned. I do not find any reason to interfere in the order impugned. However, at this stage, it would be required to note that the learned Trial Court while deciding the main controversy shall not be influenced by the order impugned and shall decide the controversy strictly on the evidence led by parties and in accordance with the provisions of law. The learned Trial Court shall also not be influenced by the observations made by this Court as the observations are only restricted in deciding Exh.

12. In view of above, the petition stands dismissed. Rule is discharged.