The main legal point established in the judgment is the relevance of the Indian Evidence Act, 1872, Section 45, and the Indian Penal Code, 1860, Section 463, in the context of summoning a handwriting expert and the burden of proof in proving the execution and validity of a document.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode] CM APPL.8179/2023 (Exemption)

1. Exemption allowed subject to all just exceptions.

2. Application stands disposed of.

CM(M) 264/2023 & CM APPL. 8180/2023 (Stay)

3. The petitioner challenges the order dated 13.10.2022 in CS No. 18561/16 titled "S.S.L. Malhotra & Anr. Vs. Molina Batra" whereby the learned Trial court has dismissed an application filed by the petitioner seeking permission of the learned Court to summon the handwriting expert to lift the admitted and questioned signatures of the respondent on the agreement to sell and the other admitted documents already placed on record for forensic examination and report.

4. With the consent of the learned counsel appearing for the parties, the present petition is taken up for disposal today.

5. Mr. Singh, learned counsel appearing for the petitioner submits that the impugned order is perfunctory and there is no reason as to why the permission which was sought was rejected by the learned Trial Court.

6. Learned counsel draws attention of this Court to page 21 which is the agreement to sell, and particularly to the signatures purported to be that of the respondent, above the point where the word `TRANSFEROR' is mentioned. Learned counsel, in continuation of the aforesaid submissions, draws attention of this Court to page 22, particularly bottom portion of the said page where the admitted signatures of the respondent are stated to be appended.

7. Learned counsel submits that the signatures on this document i.e. registered General Power of Attorney, of the respondents, are admitted before the learned Trial Court.

8. Learned counsel also submits that the registered General Power of Attorney and the registered Will were executed on the same day, when the agreement to sell was stated to be executed.

9. Learned counsel also submits that in the cross examination, the respondent had particularly disputed her signatures which, in the submission of learned counsel for the petitioner, belongs to the respondent. The respondent also stated in her cross examination that the signatures which appear on agreement to sell were forged. Learned counsel therefore, submits that to ascertain the truth, the prayer of the petition ought to be allowed.

10. Per contra, Mr. Ahuja, learned counsel appearing for the respondent No.1 submits that the learned Trial Court passed an order which was in accordance with law and there is no judicial impropriety or material irregularity committed due to which this Hon'ble Court needs to interfere in the impugned order.

11. Learned counsel points out to the reply filed by the respondent to the aforesaid application whereby the extract of the cross examination has been entered, to submit that the document which is purported to be an agreement to sell dated 29.08.2002, has to be tested on its own validity and veracity at the time of trial.

12. Learned counsel also submits that the document itself has been questioned by the respondent and the burden of proving the execution and the validity of the said document still lies on the petitioner.

13. Learned counsel submits that by virtue of the said application, the petitioner sought a method alien to law inasmuch as it appears to be an attempt to overcome the burden which was to be discharged by the petitioner. Learned counsel submits that the learned Trial Court has correctly observed that even if the signatures of the respondent are stated to be proved to be correct, the petitioner/plaintiff is yet to prove the document itself.

14. On that basis, learned counsel submits that there is no necessity of directing lifting of the said signatures to be sent to be examined by the handwriting expert.

15. This Court has heard both the parties and perused the record before it.

16. It is apparent from the perusal of the order that it is a perfunctory order which does not show the reason behind the rejection of such request made by