SATISH VYAS S/O LATE SH. SHRIKRISHAN VYAS Vs. SURYAKANT VYAS S/O LATE SH. SHRIKRISHAN VYAS, RESIDENT OF 11/966, CHOPASNI HOUSING BOARD, JODHPUR (RAJ.)

JUDGEMENT

(1.) Heard. By way of this writ petition, the petitioner plaintiff before the trial Court has approached this Court being aggrieved of the order Annex.7 dated 24.5.2016 passed by the learned District Judge, Jodhpur Metro in Civil Suit No. 212/2012 allowing the application preferred by the respondents defendants no.1 & 2 under Section 45 of the Evidence Act and directing that the photostat copy of the Will in question shall be forwarded to State Forensic Laboratory for comparison with the signatures of the petitioner plaintiff.

(2.) Learned counsel for the petitioner contends that earlier on, the application preferred by the respondents defendants was rejected by the trial Court. The respondents preferred writ petition no.3052/2016 before this Court being aggrieved of such rejection. This Court decided the writ petition by order dated 11.4.2016 setting aside the order dated 8.2.2016 passed by the trial Court and remanded the matter to the trial Court to decide the application preferred by the respondents defendants no.1 and 2 under Section 45 of the Evidence Act afresh on merits. He contends that the trial Court was required to apply its own independent mind to the facts available on record and to decide the application on merits. However, the trial Court appears to have misinterpreted this Court's order and without any justification, allowed the application observing that this Court has expressed its opinion to the effect that the application of the respondents should be allowed. He contends that no such opinion was expressed by this Court while allowing the respondents' application and rather it was the trial Court which was mandated to reconsider the matter on merits by an independent application of mind upon remand. He, therefore, submits that the impugned order is bad in the eye of law and suffers from error apparent on face of record and thus, deserves to be quashed and set aside.

(3.) Learned counsel for the respondents are not in a position to dispute the fact that the impugned order dated 24.5.2016 has been passed on a purely conjectural impression that this Court while deciding the writ petition no.3052/2016 has expressed opinion that the application under Section 45 of the Evidence Act should be allowed.