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JUDGMENT & ORDER (CAV)

MRIDUL KUMAR KALITA, J.

1. Heard Ms. R. Choudhury, learned counsel for the petitioner. Also heard Mr. A.R. Sikdar, learned counsel for respondent No. 4 as well as Mr. K.K. Bhattacharjee, learned Government Advocate, Assam for the remaining respondents.

2. This application under Article 227 of the Constitution of India has been filed by the petitioner, Md. Shamsul Hoque, impugning the order dated 29.04.2023, passed by learned Civil Judge, Barpeta, in the T.A. No. 02/2022, whereby the prayer of the present petitioner for examination of thumb impression of respondent No. 4 on the sale deed (Exhibit-4) by forensic experts was rejected.

3. The facts relevant for consideration of the instant revision petition, in brief, are as follows: -

i. The petitioner, as plaintiff, had filed the Title Suit No. 31/2014 before the Court of learned Munsiff No. 1, Barpeta against Md. Nurul Islam and others praying for declaration of right, title and interest of the petitioner over schedule B land of the plaint as well as for confirmation of possession of the petitioner over the said land. The petitioner had also prayed for a permanent injunction against the defendants from entering into the suit land. The respondent Md. Nurul Islam had contested the suit by filing a written statement as well as a counter- claim, wherein, he had prayed for declaration of his right, title and interest over schedule Z-2 land which is a part of schedule Z land of the counter- claim as well as for a declaration that the registered sale deed No. 823/1985 dated 25.04.1985 is fraudulent and liable to be cancelled as well as for permanent injunction. After considering the evidence adduced by both the parties during trial the suit of the present petitioner was dismissed and the counter-claim of the respondent No. 4 was decreed. It was declared that the registered sale deed No. 823/1985 is a forged sale deed.

ii. The petitioner had preferred an appeal against the judgment and decree passed in T.S. No. 31/2014 which has been registered as T.A. No. 02/2019 before the Court of learned Civil Judge, Barpeta.

4. After completion of the hearing in the aforesaid Title Appeal the said appeal was fixed for delivery of judgment. However, by order dated 21.12.2020, the learned Civil Judge, Barpeta passed an order that while preparing the judgment in the T.A. No. 02/2019, it was felt necessary that the signatures of the defendant No. 4 appearing in Exhibit-4 (registered sale deed No. 823/1985) are required to be sent for forensic examination for obtaining expert opinion regarding the said signatures.

5. Accordingly, specimen signatures of the respondent No. 4 were obtained and along with Exhibit-4 were sent to Forensic Laboratory, Kahilipara for expert opinion as to whether the specimen signatures and the signatures marked in Exhibit-4 are of the same person or not.

6. Later on, the expert opinion on the said signatures was received from the Forensic Laboratory, Kahilipara bearing memo No. DFS/1208/2022/254 dated 13.09.2022. It was stated in the report of the Forensic Laboratory that as the questioned signatures on the Exhibit-4 were of the year 1985, whereas, the specimen signatures were of the year 2022, it was not possible to conduct fruitful comparison between two sets of signatures as same were not contemporaneous and therefore, no definite opinion could be formed regarding authorship of the questioned signatures.

7. The First Appellate Court thereafter observed that the appeal shall be considered on the basis of the evidence on record as per settled principles of law and fixed the appeal for further hearing on 04.03.2023.

8. Thereafter, the present petitioner filed an application under Order XXVI Rule 10A and Order XLI Rule 27 1(b) and Section 151 of the Code of Civil Procedure , 1908 for allowing the petitioner to examine forensic expert, who submitted the report dated 13.09.2022 regarding forensic examination of the signatures appearing in Exhibit-4. The petitioner al