ORDER

Order No. 16.08.2024

2. 1. This matter is taken up through hybrid mode.

2. Order dated 9th May, 2024 (Annexure-1) passed in CMA No. 688 of 2016 (arising out of O.S. No.256 of 1996-I) is under challenge in this CMP, whereby learned 1st Additional Senior Civil Judge, Balasore rejected an application filed by the Petitioner under Order XXVI Rule 10-A C.P.C. to send his signature on the plaint to the Scientific Expert for comparison with admitted signatures.

3. Mr. Bose, learned counsel for the Petitioner submits that O.S. No.256 of 1996-I was filed for partition. The suit was decreed on compromise vide judgment and decree dated 8th May, 2000 and 12th May, 2000 respectively. The Petitioner was arrayed as Plaintiff No.2 in the suit. Forging his signature, the plaint was filed. A petition under Order XXIII Rule 3 C.P.C. was also filed to decree the suit on compromise. When the Petitioner came to know about the same, he filed an application under Section 151 C.P.C. (CMA No. 688 of 2016) to recall the order of compromise. During pendency of the said application, the Petitioner filed an application under Section 73 of the Evidence Act, 1872 to compare his signature on the documents filed by him in Court with his signature made in the plaint, which was rejected vide order dated 21st July, 2023. The Petitioner had also filed an application to summon his wife and son to be examined as witnesses in CMA No.688 of 2016. Assailing the order rejecting the petition filed by the Petitioner under Section 73 of the Evidence Act, the Petitioner filed CMP No. 1456 of 2023, which was disposed of on 13th December, 2023 with an observation that in the event an application is filed by the Petitioner to compare the signature of the Petitioner- Plaintiff No.2 in the plaint with that on any contemporaneous documents, the same shall be considered in accordance with law giving opportunity of hearing to the parties concerned. Accordingly, the Petitioner filed an application under Order XXVI Rule 10-A C.P.C. read with Section 45 of the Evidence Act, which was rejected vide order under Annexure-1. Hence, this CMP has been filed.

3.1 Mr. Bose, learned counsel further submits that admitted signature of the Petitioner in CMA application, affidavit, Vakalatnama and his deposition recorded in CMA No.688 of 2016 should have been compared with that in the plaint as well as in the contemporaneous documents available in the case record. There are several documents filed in the Court for reference out of which documents containing contemporaneous signature of the Petitioner with that made in the plaint are available. Learned trial Court refused to entertain the application holding that no contemporaneous document is available on record to be sent to the Scientific Expert for comparison of the signature of the Plaintiff No.2 in the plaint.

3.2 Mr. Bose, learned counsel further submits that the Petitioner although through arrayed as Plaintiff No.2 in the plaint, but he had never signed the plaint, Vakalatnama or compromise petition filed in the year, 2000 as he was not available in Odisha during the relevant period. He, therefore, submits that learned trial Court should have taken into consideration the documents of 1996 to 2000 available on record to be compared with that made in the plaint and compromise petition.

4. Mr. Mishra, learned Senior Advocate appearing for the contesting Opposite Party No.1 submits that none of the documents filed by the Petitioner are contemporaneous to the plaint, which was filed in the year, 1996. The Petitioner has referred to bundle of documents but none of those documents are contemporaneous one. Hence, learned trial Court has committed no error in dismissing the application filed under Order XXVI Rule 10-A C.P.C.

5. Taking note of the submissions made by learned counsel for the parties, this Court finds that one of the documents, i.e. Ext.6/a (signature of the Petitioner dated 14th March, 1995) is a contemporaneous one, but such signatur