DATED

05.01.2022

ON

I.A.NO.18/2019

VIDE

ANNEXURE-E PASSED BY THE TRIAL COURT PRINCIPAL CIVIL

JUDGE AND JMFC, RAYBAG IN O.S.NO.475/2014.

THIS PETITION COMING ON FOR PRELIMINARY HEARING

THIS DAY, THE COURT MADE THE FOLLOWING:

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WP No. 100945 of 2022

ORDER

1.

The petitioner is before this Court seeking for the

following reliefs:

i)

Issue a writ of certiorari and quash the

impugned order dated 05.01.2022 on

I.A.No.18/2019 vide Annexure-E passed

by the trial court Principal Civil Judge

and JMFC, Raybag in O.S.No.475/2014;

ii)

Issue any other writ, order or direction

to which the petitioner is found entitled

to

in

the

present

facts

and

circumstances.

2.

O.S.No.475 of 2014 had been filed seeking for specific

performance of agreement of sale of immovable

property. In the said suit, the defendant took up a

contention that the defendant has not affixed his

thumb impression to the agreement of sale, as such

denied the very agreement.

3.

After the completion of the evidence, an application

under Order 26 Rule 10A of CPC read with Section 45

of the Indian Evidence Act, was filed seeking for

reference of disputed thumb impression along with an

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WP No. 100945 of 2022

admitted thumb impression on the Vakalath and the

evidence

to

the

handwriting

expert.

The

said

application came to be opposed on the ground that the

said

application

is

belated

as

also

that

the

plaintiff/applicant has not examined the scribe and

attesting witnesses and without having done so, the

question of referring the matter to the handwriting

expert does not arise.

4.

The trial Court after hearing the parties dismissed the

application on the ground that the plaintiff can take

recourse to collect the evidence through any other

means and cannot take recourse to collect the evidence

by way of the application. The plaintiff could resort to

other ways to prove a document by primary means and

that

the

application

filed

would

drag

on

the

proceedings. It is aggrieved by the same, that the

petitioner is before this Court.

5.

Sri. Sangram S. Kulkarni, learned counsel for the

petitioner would submit that the petitioner has filed the

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WP No. 100945 of 2022

application after the evidence was completed. The

petitioner has already resorted to all means to prove

his submissions and disprove the submission made by

the defendant, but however, since the aspect is relating

to a thumb impression, it is required that the same is

referred to a scientific expert to give opinion.

6.

Per contra, Sri. Santosh Birangi, learned counsel

appearing for the respondent would submit that the

suit is of the year 2014 and the application having been

filed belatedly is only to drag the proceedings. Apart

from that, he submits that the scribe and attesting

witnesses have not been examined and there is no

purpose served by referring the matter to a scientific

expert. On this ground he submits that the application

is required to be dismissed .

7.

Heard Sri. Sangram S. Kulkarni, learned counsel for the

petitioner, Sri. Santosh Birangi, learned counsel for the

respondent and perused the records.

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WP No. 100945 of 2022

8.

In the present case, the suit is one for specific

performance of agreement of sale. The defendant,

who is the Vendor in the said agreement, has denied

his thumb impression. After evidence, an application

under Order 26 Rule 10A of the CPC read with Section

45 of the Indian Evidence Act has been filed. It cannot

therefore be said that the application is belated. The

submission of the respondent being that the application

would have to be filed before the evidence being led,

this Court in several decisions has held that an

application

for

commissioner

can

be

filed

and

considered only after the evidence is completed and

not before. Thus no fault could be found with the

plaintiff to have filed the application after the evidence

of the plaintiff and defendant is completed.

9.

What is sought to be referred is the thumb impression

of the defendant found on the