1. Petitioner has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 9.10.2013 passed in Civil Suit No. 94A/2002, passed by the Court of First Civil Judge Class-2, Dabra, District Gwalior. Vide impugned order, an application moved by the present petitioner/plaintiff under the provisions of Order 16 rules 1 and 2 of CPC read with section 45 of the Evidence Act has been disallowed on the ground that the plaintiff did not choose to apply for calling record of the handwriting expert earlier.

2. It is petitioner's contention that such act of the plaintiff/petitioner in not calling the report of the handwriting expert at earlier point of time cannot be deemed to be not genuine, inasmuch as this Court in the case of Jai Narayan v. Satya Narayan and others, as reported in 1991 JLJ 428, has held that if the defendant adduces handwriting expert's report in his evidence, plaintiff should be allowed to produce evidence in rebuttal. Learned counsel has drawn attention of this Court to para 7 of the aforesaid judgment, wherein the ratio is that when a Court grants permission to a party to produce handwriting expert to prove the handwriting and signature on a document, which the former party has denied, the trial Court shall see that the reports of the handwriting experts are received on both the sides within a period of six weeks from today and for that the parties shall be ready and shall give their specimen signatures.

3. Reliance has also been placed on the judgment of the Division Bench of this Court in the case of L.S.Trading Company Gwalior and another v. Manish Mishra as, reported in 2010(III) MPWN 2=2010 (4) MPLJ 228, wherein in paras 4 and 5 the ratio is that the defendants/petitioners voluntarily closed their evidence and at the stage of final arguments an application under section 45 of the Evidence Act was filed to get the disputed signature examined by the handwriting expert. The Court held that the doors of justice cannot be shut merely on the ground that the application was moved by defendants at the fag end of the trial.

4. Petitioner has also placed reliance on the judgment of the Division Bench of this Court in the case of Usha Sharma (Smt.) v. Maharaj Kishan Raina and another as reported in 2010 (I) MPWN 94, wherein the ratio is that when opportunity to one party for filing expert report was provided, the opposite party also be provided such opportunity.

5. On the other hand, learned counsel for the respondents has placed reliance on the judgment of this Court in the case of Manaklal v. Nandlal as reported in 2000 (II) MPWN 152, wherein the ratio is that when witness was not called with documents at appropriate stage, Court is not bound to call or re-call it when even certified copies have not been produced of the public documents.

6. The admitted facts of the case as are apparent from the record is that plaintiff has filed a suit for declaration and permanent injunction. It is plaintiff's case that the suit property consists of 2/3rd portion in the name of Punia Bai and plaintiff Ramswaroop and 1/3rd portion was in the name of Ishwariya, husband of defendant No. 1 Harko. According to plaintiff, Ishwariya had executed a Will date15.8.1979 in favour of plaintiff Ramswaroop alienating his property in favour of Ramswaroop. This fact was denied by the defendants and it is mentioned in the written statement that any Will was executed in favour of Ramswaroop on 15.8.1979. In fact, it is mentioned that after death of Ishwariya, names of defendants No. 1 to 4 have already been mutated in the revenue records. It is specifically mentioned that no Will was executed by Ishwariya in favour of the plaintiff and the plaintiff has prepared a forged and fabricated document.

7. It is also an admitted position that plaintiff's evidence was over. He did not examine the expert to prove signatures of Ishwariya on the said Will as was denied by the defendants and thereafter defendants led th