Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
Jayendrasinh Chhatrasinh Vasandiya – Appellant
Versus
Dasaratbhai Maganbhai Desai – Respondent
R/Special Civil Application No. 11964 of 2021
Decided on : 08-10-2021
Constitution of India,1950 – Article 227 – Civil Procedure Code,1908 – Order 26 Rule 10A, section 75 and 151 - Sale deed - Permanent injunction – Land - Petitioner is the original defendant and the respondent is the original plaintiff and respondent are the original defendant in Special Civil Suit - Plaintiff has filed Special Civil Suit for specific performance, cancellation of sale deed, declaration and permanent injunction with respect to land - After completion of deposition of plaintiff, in order to fill up lacuna which the plaintiff was unable to prove, plaintiff has moved an application at under Order 26 Rule 10A of Code of Civil Procedure, 1908 seeking a direction (i) directing the defendant n to appear before the Court and to provide finger prints of both the hands on a green ledger paper and (ii) to refer matter to Commissioner and send specimen samples to Directorate of Forensic Science and call for the report to decide whether thumb impression shown on right side of defendant and finger prints provided by the defendant no.5 before the Court is of the same person or not.
Finding of the Court:
In similar facts of case of suit for specific performance of contract based upon an agreement allegedly amongst parties, defendant denied his presence over the document and Trial Court directed him to give his specimen of writing and signature in Court and the Hon’ble Patan High Court in the case of Nand Kishore Prasad Vs. Amarnath Prasad in 2016(0) Supreme (Pat) 148 has observed that Court is competent enough to pass such kind of order in the background of Section 94(e) read with Section 151 of the C.P.C. whereunder Court is empowered to pass such kind of interlocutory orders as may appear to Court to be just and convenient in the interest of justice - Hon’ble Supreme Court, in the case of Laxmikant Revchand Bhojwani and another Vs. Pratapsing Mohansingh Pardeshi reported in (1995) 6 SCC 576, has observed that High Court under Article 227 of Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions - It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice - Keeping in view facts, this Court finds that Trial Court has rightly considered the purpose as well as two documents at Exhs.165 and 176 and dispute of signature/thumb impression raised by present petitioner and it was necessary to get help of the expert for conclusion of the dispute.
Result : Petition is dismissed
JUDGMENT :
1. Draft Amendment is allowed. Necessary amendment to be carried out forthwith.
2. Rule. Mr.Salil M. Thakore, waives service of notice of Rule for and on behalf of the respondent.
3. On a request being made by learned advocates for the respective parties, this matter is heard finally today.
4. By preferring this petition, petitioner has prayed to quash and set aside the order dated 19.06.2021 passed by the learned Principal Senior Civil Judge, Olpad below application at Exh.263 in Special Civil Suit No.140 of 2018 and has further prayed to quash and set aside the order dated 24.03.2021 passed by the learned Principal Senior Civil Judge, Olpad below application at Exh.262 in Special Civil Suit No.140 of 2018 at Annexure-F and further prayed to stay the order dated 24.03.2021 passed by the learned Principal Senior Civil Judge, Olpad below application at Exh.262 in Special Civil Suit No.140 of 2018 at Annexure-F.
5. The short facts leading to the filing of the present petition are as under:
5.2 The plaintiff has filed Special Civil Suit No.140 of 2018 for specific performance, cancellation of sale deed, declaration and permanent injunction with respect to land baring Revenue Survey No.241/2, Block No.397 admeasuring 7183 sq. mtrs situated at Mouje Village Masma, Tal.: Olpad, Dist.: Surat.
5.3 After completion of the deposition of plaintiff, in order to fill up the lacuna which the plaintiff was unable to prove, on 05.03.2021, the plaintiff has moved an application at Exh.262 in Special Civil Suit No.140 of 2018 under Order 26 Rule 10A of the Code of Civil Procedure, 1908 seeking a direction (i) directing the defendant no.5 to appear before the Court and to provide finger prints of both the hands on a green ledger paper and (ii) to refer the matter to the Commissioner and send the specimen samples to Directorate of Forensic Science, Gandhinagar and call for the report to decide whether the thumb impression shown on right side of defendant no.5’s photo on Page-9 of Exh.165 and the finger prints provided by the defendant no.5 before the Court is of the same person or not.
5.4 The learned Principal Senior Civil Judge and Additional Chief judicial Magistrate, Olpad allowed the application filed by the plaintiff vide order dated 24.03.2021 below Exh.262, whereby directed the defendant no.5 to appear before the Court and provide finger prints of both the hands on a green ledger papers.
5.5 In view of the order dated 24.03.2021 passed below Exh.262, the defendant no.5 appeared before the Court and provided the finger prints of both his hands and the procedure as per the said order is going on.
5.6 Thereafter, learned Principal Senior Civil Judge, Olpad, vide order dated 19.06.2021, allowed the application filed at Exh.263. In view of the order dated 19.06.2021 passed below application filed at Exh.263, the plaintiff has given a notice through whatsapp dated 28.07.2021 to the defendant no.5’s advocate directing the defendant no.5 to remain present before the handwriting expert on 29.07.2021. Thereafter, on 30.07.2021, the plaintiff has filed a pursis in Special Civil Suit No.140 of 2018 stating that the plaintiff has informed vide letter dated 29.07.2021 to the appointed handwriting expert.
5.7 According to the petitioner, the Court has exceeded discretionary jurisdiction vested upon him and allowed the application at Exh.263 beyond the prayers prayed for. Thus, being aggrieved and dissatisfied by the order dated 19.06.2021 passed by the learned Principal Senior Civil Judge, Olpad below application at Exh.263 in Special Civil Suit No.140 of 2018, whereby the learned Judge allowed the application filed by the plaintiff under Order 26 Rule 10A of the CPC and directed the defendant no.5 to remain present before the Commissioner, Directorate
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
