Trial court order dismissing Section 73 Evidence Act application for handwriting expert on delay and misuse grounds held unsustainable; interest of justice requires comparison of disputed and admitted signatures.

JUDGMENT :

Ajay Mohan Goel, J.

By way of this petition, the petitioners are assailing order dated 22.07.2025, passed by learned Trial Court, in terms whereof, an application filed by them under Section 73 of the Indian Evidence Act stands dismissed.

2. As the respondents have not put in appearance despite service, they are proceeded against ex parte.

3. Learned Counsel for the petitioners has taken the Court through the application filed by the petitioners under Section 73 of the Indian Evidence Act as well as the impugned order and submitted that the suit was filed by father of the petitioners for specific performance of contract, directing defendant No. 1 to execute sale deed of land in dispute in terms of the agreement to sell Ext. CA which was duly signed by the original plaintiff Bali Ram and defendant Mansha Ram in the presence of the witnesses. In terms of the application, during the pendency of the suit and after passing of the status quo order, defendant Mansha Ram sold the suit land in favour of defendant No. 3 by executing a sale deed. Mansha Ram died during the pendency of the suit and his legal representative, namely, Surender Kumar, who deposed in the Court, did not identify the signatures of his father on Ext. CA with a malafide intention, though he admitted the signatures of his father on the sale deed which was marked as DY. As per applicant/petitioner, Surender Kumar had deliberately not identified the signatures of his father on Ext. CA to cause loss to the plaintiff. Accordingly, a prayer was made that the specimen handwriting of late Sh. Mansha Ram be sent to document Expert for his comments.

4. In terms of the impugned order, this application has been dismissed by the learned Trial court by returning the following findings:-

“4. I have heard Id. counsel for the parties and have gone through the case file.

5. The perusal of order sheets shows that Surender Kumar son of deceased defendant No.1 Mansha Ram was examined on 20.09.2024 and when the case is listed for arguments then the applicant come up with the present application despite repeatedly directing by the court that it is old and targetted case and it need to be disposed off expeditiously. The applicant could have file the present application well within time when Surender Kumar was examined on 20.09.2024, but he waited for almost nine months and then come up with the present application just to delay the matter. Two opportunities have been provided for rebuttal evidence but nothing has been examined or stated by the applicant. So it is gross misuse of process of law. The present application filed at this stage is not maintainable. So, the present application has no merits and the same is hereby dismissed. The application stands disposed off It be tagged with main case file for record.”

5. Having heard learned Counsel for the petitioners and having gone through the impugned order, this Court is of the considered view that the same is not sustainable in the eyes of law. The reasoning which has been given in the order is no reasoning in the eyes of law, more so, in light of the fact that the statement of D.W i.e. DW4 Sunil Kumar was recorded only on 04.04.2025, which is evident from the relevant record of the case which was made available for the perusal of the Court by the learned Counsel for the petitioners.

6. The application in issue was filed by the applicants/petitioners on 28.06.2025 and it would have been in the interest of justice had the same been allowed by the learned Trial Court. As when the signatures of defendant Mansha Ram were denied by his son and there was on record another signature of deceased- defendant Mansha Ram, which were admitted by his son, interest of justice would