- (1.) Seen the affidavit of service upon both the opposite parties. Let it be kept with the record.
(2.) Heard learned Lawyer for the petitioner and perused the instant revisional application. The same is directed against order No. 27 dated 10.11.06 passed by learned Civil Judge (Junior Division), 1st Court, Barasat in Title Suit No. 85 of 1990. Learned Lawyer for the petitioner submits that in the Court below plaintiff filed a petition praying for examination of the LTI of executant in the concerned registry office in respect of said Deed which is marked as Exts. 1. and 1A of the suit for its,comparison with all the LTIs of defendant No. 1 taken by the registry office on the overleaf of the first page of both sides marked as Exts. 1 and 1A, that means, sale deed Nos. 13363 and 13365. Since the plaintiff's right, title and interest claimed in the suit depends upon genuineness of the above two sale deeds which are disputed by the defendant, the plaintiff wanted to prove the same by handwriting expert. But the learned Court below after hearing both parties has rejected such prayer on the grounds that an order of signature of examination has already been passed by the Court upon prayer of the defendant and he has already deposited the requisite fees. Therefore, the said examination should be made first. But without keeping the prayer in abeyance for future consideration the learned Court below has rejected the prayer forfeiting thereby the right of the petitioner to send those documents for handwriting expert though primary onus lies upon the plaintiff to prove his case. Having heard learned Lawyer for the petitioner and on perusal of the impugned order I find that there has been miscarriage of justice as a result of such denial of the right of the plaintiff to prove his case on grounds of entertainment of the defence prayer for handwriting expert though the burden of proof primarily lies upon the plaintiff. Therefore, the said order is not sustainable in law and I hold that for ends of justice such prayer should be allowed. Accordingly, the impugned order dated 10.11.06 is hereby set aside and the plaintiff's payer for sending the aforesaid documents for handwriting expert is allowed.
(3.) The learned Court below is directed to send the said documents along with the documents of the defendant which has already been allowed by the Court below for opinion of the handwriting expert for proper adjudication of the matter. This application is, thus, disposed of.;