The court determined that a scientific examination of a disputed sale deed is necessary to ascertain its authenticity, emphasizing the interest of justice.

JUDGMENT :

PRANJAL DAS, J.

1. Heard Mr. A.I. Uddin, learned counsel for the petitioner. Also heard Mr. B.K. Bhagawati, learned counsel for the respondent.

2. The petitioner as plaintiff had instituted a title suit, being TS No. 131/2011, where the present respondent is the sole defendant. The plaintiff was seeking a declaration with regard to a sale deed being Sale Deed No. 1790/2008, contending that the same is forged, fraudulent, and inoperative, and liable to be cancelled. He was seeking right, title, interest also, along with declaration.

3. The respondent as defendant, filed written statement in the suit. Issues were framed and evidence adduced. The plaintiff adduced evidence from his side, and the defendant also adduced evidence and the case is presently stated to be at the stage of arguments pending in the Court of the learned Civil Judge, (Junior Division) No. 1, Nagaon.

4. At this stage, the petitioner/plaintiff filed an application seeking to invoke the provisions of Order 26, Rule 10A of the Civil Procedure Code, 1908 (hereinafter CPC), seeking a direction to send the disputed sale deed for a scientific investigation.

5. The respondent/defendant filed an objection to the said petition of the plaintiff/petitioner seeking scientific investigation under Order 26, Rule 10A CPC. After considering the matter, the learned trial Court vide order dated 27.10.2021 was pleased to dismiss the prayer of the plaintiff/ petition for a commission for scientific investigation.

6. Mr. A.I. Uddin, learned counsel for the petitioner, submits that the main issue in the suit is the validity of the sale deed, which the plaintiff/petitioner is challenging, and therefore, the scientific investigation is necessary to arrive at the correct fact regarding such validity of the sale deed.

7. With regard to the aspect of delay mentioned by the learned trial Court in the impugned order, the learned counsel submits that the litigation has been initiated by the petitioner/plaintiff, and he would not benefit from any such delay.

8. In support of his contention, the learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court in Ram Avatar Soni versus Mahanta Laxmidhar Das and Others (2019) 11 SCC 415 and drawn attention of this Court to Para-7 thereof:-

“7. As pointed out earlier, the appellant has filed the suit CS No.2/34 of 2008/2003 challenging the genuineness of alleged Will executed by Natabar Das in favour of the first respondent and seeking revocation of the probate of the will. As submitted by the learned senior counsel appearing for the appellant, in the said suit, issue No.3 has been framed that “Has the defendant No.1 by practising fraud managed to get the Will probated, which was a fabricated and manufacture done” Hence, the genuineness of the Will in question needs to be decided that is whether the signature in the Will dated 12.03.1989 allegedly executed by Natabar Das could be ascertained only by sending the document to hand-writing expert. As discussed above, earlier in WP(C) No.14997 of 2013, while setting aside the order of the District Judge dated 18.06.2013, the High Court has observed that the application filed under Order XXVI Rule 10A CPC can be considered at a later stage of the proceedings that is after closure of the evidence from both sides. After their witnesses were examined, the plaintiff/appellant again reiterated the prayer for sending the Will in question to hand-writing expert. If the scientific investigation of the document in question facilitates the ascertaining of truth, in the interest of justice, naturally it has to be ordered. Ha