1. This writ petition under Article 227 of the Constitution of India is directed against the order dated 19.1.2016 passed in Civil Suit No.33-A/2015 by the trial Court dismissing an application filed by the defendants' No.1 and 2 under sections 45 and 73 of the Evidence Act (hereinafter referred to as 'the Act').

2. A suit for declaration and injunction is pending consideration before the trial Court wherein the relief sought is to the effect that the suit land admeasuring 0.690 hectare falling in survey No.142 situated in village Raosar (Khalsa) District Ashok Nagar is of the ownership and possession of the plaintiffs' and defendant No.3 with further declaration that the sale deed dated 3.8.1991 alleged to have been executed in favour of the defendants No.1 (by late Govinda also known as Govindi) and thereafter in favour of defendant No.2 be declared null and void as against the plaintiffs' and the revenue record corrected on that basis be declared illegal as well as sought the relief of permanent injunction restraining defendants not to interfere with the possession of the plaintiffs' over the suit land.

3. Defendants' No.1 and 2 have filed an application under sections 45 and 73 of the Act with the contention that as plaintiffs have alleged that the sale deed executed in favour of defendant No.1 by late Govinda is a forged document having forged signature of late Govinda whereas Govinda was an uneducated person and did not how to write and sign, therefore, expert's opinion is necessary on the signature appended by late Govinda with his signature on patta awarded in his favour by the Sub-Divisional Officer, Ashok Nagar dated 26.6.1979 and that of patta awarded in favour of Sukhlal s/o Raisa Kachhi whereon signature of Govinda was appended as witness to the said document.

4. The application was opposed by the plaintiffs'.

5. The trial Court while dismissing the application has observed that the evidence has not commenced, and only evidence on affidavit of the plaintiffs' witnesses under Order XVIII rule 4 CPC are placed on record, therefore, at this initial stage of trial, it is not expedient and necessary for an enquiry or to call for expert's opinion in respect of signature of late Govinda on the sale deed dated 3.8.1991. After parties have led evidence, if it is found necessary, defendants' are at liberty to revive the application for the said purpose. With the aforesaid reasoning, the trial Court dismissed the application.

6. Learned counsel for the petitioners' while criticizing the aforesaid order has contended that it is obligatory on the part of the trial Court to order for expert's opinion under section 45 read with section 73 of the Act at the first instance and the Court is not required to wait for evidence to be concluded.

7. The aforesaid proposition is advanced with the help of order passed by a Coordinate Bench of this Court in the case of Shabbir Khan v. Krishna Das, 2013(1) MPWN 46 and also Andhra Pradesh High Court, reported in 2015 STPL(LE-Civil) 90169 AP [2015(2) Civil Court Cases 469],

S. Harshavardhan Reddy v. Vemla Ram Reddy.

8. This Court has carefully perused the aforesaid orders so cited by learned counsel for the petitioners. Facts involved in the aforesaid cases are clearly distinguishable.

9. In the case of Shabbir Khan (supra), the first application was rejected. However, later on, when the second application was filed there was no opposition by the other side. Despite, no opposition from the other side, the application was rejected. Therefore, this Court took exception to the order impugned therein and set aside the same.

10. In the case of S.Harshavardhan Reddy (supra), the Andhra Pradesh High Court considered the fact that after conclusion of the trial, for the first time application under section 45 of the Act was filed. Therefore, the Court in the aforesaid facts and circumstances of the case has found that the petitioner therein was negligent in pursuing his cause and utter lack of diligence o