IMPORTANT POINTS
Where a Civil proceeding as also a Criminal proceeding is pending, the latter shall get primacy.
Having allowed an earlier application for opinion of handwriting expert, subsequent application in respect of finger print expert could not have been rejected.

JUDGMENT

S.B. Sinha, J.—

1. Leave granted.

2. ‘Procedural Mechanics’ involving interpretation of Order XIII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter called and referred to for the sake of brevity as the ‘Code’) falls for consideration in this appeal which arises out of a judgment and order dated 5.1.2007 passed by a learned Single Judge of the High Court of Judicature at Madras in CRP No.559 of 2005.

3. Parties hereto are co-sharers. Allegedly, a deed of partition was entered into by and between them on or about 28.11.2002. Questioning the genuineness of the said deed of partition, a suit for cancellation thereof was filed by the appellant therein. Indisputably, in relation thereto, a First Information Report was also lodged. During investigation, the Investigating Officer recovered the purported original deed of partition from the custody of the respondent. It was sent for examination to the Forensic Science Laboratory, Chennai.

4. Appellant filed an application in the said suit marked as IA No.1 of 2005 calling for the report of the forensic expert from the Court of Judicial Magistrate, Sathyamangalam as regards the purported signatures of the petitioner. The said application was allowed by the learned Trial Judge. In the meantime, allegedly a second report with regard to the of thumb impression of the petitioner on 15.2.2005 was also received from the Forensic Science Laboratory. He filed a similar application under Order XIII Rule 10 of the Code before the learned Trial Judge. By an order dated 8.3.2005, the Trial Court rejected the said application, stating :

“But the petition does not contain the details such as serial number and the date of the documents which are requested to be sent for. The petition does not mention that the documents are the records of Crime No.699/2003 or the related records. It has not been stated in both the petition and the counter statement that the investigation is over. Only the crime number has been mentioned in the petition. Since it has not been stated on behalf of the petitioner that the investigation is over and that the final report has been filed in this regard, and that it is not possible for the court to ask from time to time the documents which are in their possession as a result of investigation and that the provisions of Order XIII Rule 10 of CPC do not empower the civil court to direct the production of document which are in the custody of police and that it has not been stated whether such document have been filed and kept on the file of the court of judicial Magistrate and that the issue whether the partition deed is false or true to be established by examining witnesses and it is the responsibility of the plaintiff in this regard and after that the examination of witnesses of both plaintiff and defendant are not over and that keeping in mind the objections raised by the respondents/defendants that the petitioners/plaintiffs are in collusion with the Sathyamangalam Police and that it is not possible to send for the documents with the police when the investigation is not over and that the plaintiff could establish the falsity of the partition deed by other witnesses and other documents and for the said reasons the petition is not acceptable and having decided so.”

5. An application under Article 227 of the Constitution of India filed thereagainst has been dismissed by the High Court by reason of the impugned judgment.

6. Mr. Vijay Kumar, learned counsel appearing on behalf of the appellant, would submit

(1) The learned Trial Court and consequently the High Court committed an error in observing that the details of the criminal case as also the court wherein it had been pending was not disclosed by the appellant.

(2) Order XIII Rule 10 of the Code having wide application and having been enacted to further the ends of justice and avoidance of multiplicity of proceedings, the same should have invoked.

(3) The genuineness and authenticity of the partition deed dated