The main legal point established in the judgment is that an application under Order 26, Rule 10A of C.P.C. must have specific pleadings regarding the genuineness of the signatures in question to be maintainable.

JUDGMENT :

Biswanath Rath, J. - The present Civil Miscellaneous Petition arises out of an order dated 15.3.2016 passed by the District Judge, Puri in C.S. No. 2/34 of 2008/2003 appearing at Annexure-3 thereby allowing an application at the instance of the plaintiffs-opposite party Nos. 1 & 2 under Order 26, Rule 10A of the Code of Civil Procedure and also thereby directing for sending the signatures appearing in the petition, affidavit, vaklatnama and deposition of Mahanta Natabar Das in Probate Misc. Case No.19/13 of 1982 along with the present Will vide Ext.A to the Deputy Superintendent Handwriting Bureau, Rasulgarh, Bhubaneswar for comparison.

2. Short facts involved in the case are that the opposite party Nos.1 & 2 filed a suit under Section 263 & Section 283 of the Indian Succession Act read with Section 151 of C.P.C. and Section 47 of C.P.C. before the District Judge, Puri with a prayer for revoking or annulling the Will granted or probated and letters of administration in Probate Misc. Case No.14/5 of 2008/97 in favour of the defendant No.1 therein. During pendency of the suit, the plaintiffs-opposite parties Nos. 1 & 2 filed a petition under Order 26, Rule 10 (A) of C.P.C. with an intention of examining the genuineness of the signature of the particular persons. The opposite party Nos. 1 & 2 also contended therein that on an earlier occasion, the trial Court allowed the prayer of the opposite party No. 1. The present petitioner challenged the said order in W.P.(C) No. 14977 of 2013 and this Court while disposing the said writ petition directed the lower Court for considering the said application after closure of the evidence. The further facts as narrated by the opposite party No.1 in his application under Order 26, Rule 10 (A) of C.P.C. is that the plaintiff has challenged the Will as forged and the signature of Natabar Das was also forged.

It is under these circumstances, the opposite party No. 1 asserted in the Court below that necessity arises for sending the signatures of Mahanta Natabar Das contained in different documents to a handwriting expert to examine as to if the signatures in the Will is genuine or not and if the signature of Laxmidhar Mohapatra in the compromise petition is genuine or not and for submission of a report.

3. By submitting his objection the petitioner inter alia contended therein that in absence of specific pleading with regard to genuineness of the signatures of the aforesaid persons, the provisions under Order 26, Rule 10 (A) shall not be attracted. Further in view of not disputing the signature of Mahanta Natabar Das appearing in the Will vide Ext. A during examination in chief of the plaintiff and further in absence of any suggestion to that effect to the petitioner's witnesses, the petition is also otherwise not maintainable.

4. Hearing the rival contentions of the parties and after considering their respective pleadings, learned District Judge, Puri while disposing the application under Order 26, Rule 10 (A) of C.P.C. along with some other applications, allowed the opposite party No.1's request for sending the signature along with the documents indicated herein above for expert opinion.

5. In assailing the impugned order appearing at Annexure-3, Dr. A.K. Mohapatra, learned Senior Advocate while re-agitating his objection in the Court below contended that the lower Court not only failed in appreciating the purport of Order 26, Rule 10 (A) of C.P.C but also failed in appreciating the fact situation available on record in arriving at such a decision. Dr. A.K. Mohapatra, learned Senior Advocate appearing for the petitioner further contended that in absence of any pleading, the application was not at all maintainable and consequently, requested for interference in the impugned order and setting aside the same.

6. In his opposition, Mr. P.K. Mohanty, learned Senior Advocate appearing for the contesting opposite parties while justifying the grounds taken by the petitioner in the application under