ORDER

1. This petition filed under Article 227 of the Constitution of India assails the order dated 6.8.2018 whereby the application preferred by the petitioner/defendant No. 1 under section 45 of Indian Evidence Act for appointment of handwriting expert is rejected by the Court below.

2. Briefly stated, the relevant facts are that the respondents/plaintiff filed a suit for declaration of permanent injunction. It was prayed that the sale deed dated 24.6.1995 be declared as null and void, the plaintiff be declared as title holder of the suit property and the other side be injuncted from interferring with the suit property. In turn, the petitioner/defendant No. 1 filed his reply and contended that "Kacchi Bechi Teep" dated 10.6.1995 is not a genuine document. The whole attempt of plaintiff is to place reliance on this Kacchi Bechi Teep so that subsequent sale deed dated 24.6.1995 can be interfered with.

3. To bolster this argument and in order to separate the wheat from chaff, the petitioner/defendant No. 1 filed an application under section 45 of Indian Evidence Act dated 23.1.2018 (Annexure P-7) and prayed that signature of vendor Shri Ramji Tripathi available at sale deed (Ex.D-1) dated 24.6.1995 be examined with 'fabricated' documents dated 10.6.1995 (Annexure P-6). Moreso, when Shri Ramji Tripathi is not participating in the proceedings and is being represented by a Power of Attorney holder. Shri Sahu criticised the impugned order and prayed for setting aside of the same.

The other side/plaintiff opposed the said contention/prayer. The Court below by impugned order rejected the application by holding that when the execution of "Kachhi Bechi Teep" is accepted/admitted by plaintiff, there is no need for appointment of handwriting expert while the Court below placed reliance on 2007 (2) M.P.H.T. 182 (Sanjay v. Rajeev). Shri Sahu alleged that the genuineness of "Kacchi Bechi Teep" is in question and it is required to be examined as to whether this document is pregnant with the signature of Shri Ramji Tripathi. In absence of any admission regarding existence of signature of Ramji Tripathi on this documents on behalf of the petitioner/defendant No. 1, the Court below was not justified in rejecting the application.

4. Per contra, Shri T.S. Ruprah, learned Senior Advocate supported the impugned order. The learned senior counsel argued that when execution/Kacchi Bechi Teep dated 10.6.1995 is clearly admitted by plaintiff, the Court below was justified in not undertaking an unnecessary acceptance. No other point is pressed by the learned counsel for the parties. I have heard the parties at length and perused the record. If plaint averments and written statement of petitioner/defendant No. 1 are examined in juxta position, it will be clear like cloudless sky that the parties are at loggerheads on the question of genuineness of "Kacchi Bechi Teep" dated 10.6.1995, existence of original and genuine signatures of Shri Ramji Tripathi on this. A plain reading of impugned order shows that Court below was impressed with the admission of plaintiff and defendant No. 2 regarding the "Kacchi Bechi Teep" but any such admission, in the opinion of this Court, by no stretch of imagination, will not bind the defendant No. 1/petitioner.

6. Section 45 of Indian Evidence Act makes it obligatory to appoint the examiner/handwriting expert where Court is required to "form an opinion". In a case of this nature, an opinion is required to be formed regarding said document because the relief claimed by the plaintiff has a direct nexus with the said document. It becomes all the more necessary because Ramji Triapathi himself is not participating in the proceedings. This is trite that a Power of Attorney holder can enter the witness box and depose to a limited extent. He cannot depose regarding a fact about which he does not have any personal knowledge. For these cumulative reasons, in my opinion, the Court below has not examined the application from correct the p