Orissa High Court
Sukanti Kanhar vs Sh. Ranjita Patra on 2 January, 2018
Equivalent citations: AIRONLINE 2018 ORI 111
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
C.M.P. No.494 of 2017
In the matter of an application under Article 227 of the Constitution of India.
----------
Sukanti Kanhar ... ... ... Petitioner
-Versus-
Sh. Ranjita Patra ... ... ... Opp. Party
For Petitioner : M/s.Sanjeev Udgata & A Mishra.
For Opp.Party : M/s.H.K.Mund & A.K.Dei.
---------
PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
------------------------------------------------------------------------------------------------------
Date of Hearing :15.12.2017 Date of Judgment :02.01.2018
Biswanath Rath, J.This Civil Miscellaneous Petition involves a challenge to the order under Annexure-3 passed by the learned Civil Judge (Senior Division), Phulbani in connection with Civil Suit No.1 of 2009, thereby allowing an application under Section 73 of the Indian Evidence Act at the instance of the plaintiff.
2. Short background involved in the case is that the opposite party as plaintiff filed Civil Suit No.1 of 2009 in the court of the Civil Judge (Senior Division), Phulbani for release of Rs.50,000/- (Rupees fifty thousand) from the petitioner-defendant therein stated to be a recovery of a hand loan to the present petitioner. The trial court by judgment dated 13.10.2009 dismissed the suit. An appeal being preferred vide R.F.A.No.15 of 2009, the 2 appeal was disposed of on contest appears to have been with a direction for remand of the suit for fresh consideration with specific orders. It is after reopening of the suit and while the suit was in progress, an application under Order 3, Rule 1 of the Code of Civil Procedure read with Section 73 of the Indian Evidence Act was filed by the plaintiff seeking a direction from the trial court for appearance of the defendant in person in court to give her writings/signatures as desired by the handwriting expert. The request in the above application was made under the pretext that particular document was required to be sent to be sent to the handwriting expert. In obligation to the direction of the lower appellate court, the expert has submitted a comment expressing his inability to give a report under the pretext of requirement of some further signatures. This application was objected by the present petitioner under the ground of being beyond the direction of the lower appellate court. Considering the submission of both side, the trial court vide order dated 7.2.2017 accepting the case of the plaintiff-opposite party, allowed the application directing therein for appearance of the defendant before the court on 27.2.2017 for giving her specific signature to facilitate the expert opinion, under challenge in the present Civil Miscellaneous Petition by the present petitioner-the defendant in the court below.
3. Challenging the impugned order, Sri Udgata, learned counsel for the petitioner referring to the remand order passed by the lower appellate court and particularly for the observations made therein contended that for the clear direction of the lower appellate court, there was no scope on the part of 3 the trial court to make a departure of the same and granting the relief impugned herein. It is further contended by Sri Udgata that for clear departure of in the direction of the trial court, the decision of the trial court should be interfered and set aside. Referring to the decisions on the principle of resjudicata and applicability of provision contained under Section 73 of the Indian Evidence Act rendered in the cases of Balaswaraswami Varu and another v. Mallidi Dorayya and others, AIR 1972 Andhra Pradesh, 250, State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 Supreme Court 791, Jahurul Islam v. Abul Kalam and others, AIR 1991 Calcutta 132, Assam State Transport Corporation v. Smt. Michitribala Das, AIR 1994 Gauhati 35, Smt Ramabai and others v. Harbilas and other, AIR 1997 Madhya Pradesh 90 and in the case of U.P. State Rod Transport Corporation v. State of U.P. and another, AIR 2005 Supreme Court 446, Sri Udgata, learned counsel contended that the impugned decision remained otherwise bad in law and unless interfered and set aside will create a bad precedent.
4. In his opposition, Sri S.K.Mund, learned counsel appearing for the plaintiff-opposite party referring to the provision contained in Section 73 of the Act further referring to the report of the handwriting expert indicating his inability to give opinion under the peculiar situation contended that there is no illegality committed by the trial court in passing the impugned order and giving suitable direction to the defendant thereby. Referring to two decisions rendered in the cases of Sashi Bhusan Pati and another v. State Bank of 4 India and another, AIR 1986 Ori 218 and Shyam Sundar Chowkhani alias Chandan and others v. Kajal Kanti Biswas and others, AIR 1999 Gauhati 101 Sri Mund further submitted that for the support of the decisions referred to hereinabove to the case of the plaintiff-opposite party, the impugned decision is otherwise cannot be held to be illegal requiring no interference of this Court.
5. Considering the rival contentions of the parties, this Court going through the materials available on record finds that appeal being filed challenging the dismissal of the suit by the petitioner, the appeal was partly allowed with an order of remand, particularly observing as follows:
"3 In this appeal before this Court the appellant filed a petition U/O.41 Rule 27 read with Section 197(d) & U/O.26, Rule-10 C.P.C. praying therein to send the document marked Ext.1 along with Ext.3 to the handwriting expert for comparison of the signature of the respondent appearing on the same and for opinion on the grounds that in the impugned judgment the learned Civil Judge (SD), Phulbani held that the appellant has failed to prove the Execution of the agreement Ext.1 by the respondent and P.W.3 a witness to the said agreement having resiled in his evidence in chief regarding execution of the agreement by the respondent supported the respondent during his cross examination by the appellant. Since the case of the appellant morefully rests on the agreement Ext.1 executed by the respondent and the admitted signature of respondent is available in Extr.3, his V. Nama for proper adjudication of the dispute/controversy between the parties to impart proper justice through Court verdict it is left necessary/essential to get the 5 signature of the respondent appearing in Ext.1, compared with his admitted signature available in Ext.3. In that backdrop to my consideration the prayer of the appellant as has been made in his petition U/O.41, Rule-27 read with Section 197(d) and U/O.26, Rule-10 C.P.C. is to be allowed and the document Ext.1 containing the signature of the respondent and Ext.3 containing the admitted signature of the respondent requires to be sent to the handwriting expert for comparison and opinion since required by this as per Rule 27-1(b) of Order 41 C.P.C.. Hence, the suit is to be remanded to the Court of Civil Judge (S.D.), Phulbani for re-trial under Rule 23-A of Order 41 C.P.C. to obtain the opinion of the handwriting expert after comparison of the signature of the respondent in Ext.1 with his admitted signature in Ext.3 for fresh verdict.
4. In the result, for the foregoing reasons the appeal is allowed and the impugned judgment and decree of the learned Civil Judge (S.D.), Phulbani passed in C.S.No.01/2009 is hereby set aside and the suit is remanded to the learned Court below as provided U/R.23-A of Order 41 C.P.C. for re-trial keeping in mind the purpose for which the same is remanded for re-trial".
Bare reading of the aforesaid direction of the lower appellate court, this Court finds the lower appellate court while observing that the application under Order 41, Rule 27 read with Section 197(d) and under Order 26, Rule 19 C.P.C. is allowed with further specific direction that the documents vide Ext.1 containing the signature of the respondent and Ext.3 containing the admitted signature of respondent (meaning thereby by the defendant) to be sent to the handwriting expert for comparison and opinion. It is under this categoric direction of the lower appellate court, this Court is satisfied with the 6 submission of Sri Udgata that the trial court had a limited role in such matter and further for the specific direction for examination of the specific signature contained in Ext.1 and Ext.3 for the comparison purpose involving these two documents only, opinion of the handwriting expert expressing his inability cannot over ride the decision of the lower appellate court.
6. Now considering the citations relied upon by the respective parties, taking into consideration as to whether the application taken up under consideration in the impugned order was hit by resjudicata, this Court finds for a consideration of the issue involved therein and for the specific order passed by the lower appellate court confining the consideration to particular documents, this Court observes, applying the principle in the case of U.P. State Rod Transport Corporation v. State of U.P. and another, AIR 2005 Supreme Court 446 (supra), the subsequent application was not considered vide impugned order, was hit by principle of resjudicata. Similarly, taking into consideration the decisions referred to Balaswaraswami Varu and another v. Mallidi Dorayya and others, AIR 1972 Andhra Pradesh, 250, Assam State Transport Corporation v. Smt. Michitribala Das, AIR 1994 Gauhati 35, Smt Ramabai and others v. Harbilas and other, AIR 1997 Madhya Pradesh 90 (supra), this Court finds once there is a remand of a proceeding with specific direction involving a particular issue, the trial court becomes bound by the same. Therefore, the decisions referred to hereinabove have also support to the case of the petitioner. Applying the principle laid down in Jahurul Islam v. Abul Kalam and others, AIR 1991 Calcutta 132 (supra), 7 this Court observes the claim of the petitioner remained right to the fact effect that after specific order by the lower appellate court, no party has a right to abdicate the direction of the lower appellate court in an attempt to fill the hole.
7. Considering the citations at the instance of the counsel for the opposite party, this Court going through the decisions finds there is no doubt that applying the provision under Section 73 of the Indian Evidence Act, court has a jurisdiction to give suitable direction to the parties concerned to facilitate the expert opinion, but for the specific direction of the lower appellate court involved herein, both the decisions cited by Sri Mund, for the fact and scenario have no support to the case at hand.
8. For the observations of this Court made hereinabove, particularly keeping in view the specific direction in the remand order by the lower appellate court for confining the expert opinion, examining the signatures contained in Ext.1 and Ext.3, the expert opinion must be confined to the documents vide Ext.1 and Ext.3 and nothing beyond that. Thus, while holding that the impugned order is bad in law for being contrary to the direction of the lower appellate court and setting aside the judgment, this Court directs the trial court in obligation of the direction of the lower appellate court to refer the matter once again to the handwriting expert for his opinion in the matter of comparison of the signature of the defendant involving Ext.1 and Ext.3 confining to these documents alone and based on such report to 8 proceed in determining the suit. Trial court is also directed to confine its disposal strictly keeping in view the direction of the lower appellate court.
9. In the result, the Civil Miscellaneous Petition succeeds. No order as to cost.
............................
Biswanath Rath, J.
Orissa High Court, Cuttack.
The 2nd day of January, 2018/sks