Samapti Chatterjee, J. - (1.) The petitioner has filed the present revisional application assailing the order No. 41 dated 16th April, 2015 passed by the Learned Judge, 10th Bench, City Civil Court, Calcutta in Money Suit No. 609 of 2009 thereby rejecting the petitioner's application under Order 26 Rule 10A(1) read with Sec. 151 of the Civil Procedure Code for appointment of handwriting expert.
(2.) The brief case of the petitioner is as follows: That the opposite party in the year 2009 filed a suit against the petitioner before the Learned 3rd Bench, City Civil Court at Calcutta under provision of Order 37 of the Civil Procedure Code registered as Money Suit No. 609 of 2009 for reliefs inter alia for a decree of principle amount of Rs. 1,99,000/ - as per statement of account. It was alleged in the suit that the plaintiff/opposite party has given a loan for sum of Rs. 2,00,000/ - to the petitioner with the understanding to repay the said amount within 15 months at a monthly installment of Rs. 13,333.33 paise. It was further alleged that the petitioner made a sum of Rs. 1000/ - only on 29th August, 2006 after repeated demand by the plaintiff/opposite party. Against the said Money Suit the petitioner submitted their written statement denying all the allegations. It was also mentioned in the written statement to save limitation the plaintiff/opposite party made up a cock and bull story just before the expiry of original period of limitation i.e. on 30th September, 2006. Both the parties adduced evidence in the said suit. Sometime in November, 2011 the petitioner took out an application under Order 26 Rule 10A(1) read with Sec. 151 of the Code of Civil Procedure, 1908 for appointment of a handwriting expert. The relief sought for in the said application is quoted below: "Under the aforesaid facts your petitioner most humbly prays before your Honour for an order appointing a Handwriting Expert to peruse the sample handwriting and signature of the petitioner that with the handwriting and signature appearing in the alleged admission of debt allegedly made by the petitioner on 29th August 2006 of payment of sum of Rs. 1000/ - and undertaking to pay a sum of Rs. 1,99,000/ - in the Annexure produced by the Plaintiff with the Plaint and file a Report before this Ld. Court on such terms so as to this Ld. Court may deem fit and proper and pass such further or other order/(s) and/or direction/(s) as may deem fit." The plaintiff/opposite party used their written objection against that application under Order 26 Rule 10A(1). The petitioner earlier approached before this Hon'ble Court by filing a civil revision application being C.O. No. 4086 of 2011. That application was disposed of by this Hon'ble Court on 19th December, 2011 holding inter alia as follows: - "In my view, the order impugned does not merit interference at this stage, for the application of the petitioner has not been rejected by the learned trial judge. However, it is clarified that if on hearing arguments of the parties the learned trial judge is of the view that the application for appointment of in expert does not merit an order being passed in terms of the prayer made therein, he shall immediately pass an order to that effect so as to enable the petitioner to question its correctness before the appropriate forum. In such case, final decision on the suit shall not be rendered before expiry of ten days from date such order is passed. On the contrary, if the learned trial judge is of the view that the suit itself ought to be dismissed without appointing an expert on the basis of his own assessment of the disputed signature, he shall be free to decide the suit in accordance with law and in the process hall also dispose of the application without passing any order thereon." Thereafter vide impugned order No. 41 dated 16th April, 2015 the said application under Order 26 Rule 10A(1) was rejected by the Learned 10th Bench City Civil Court, Calcutta with the following observations: "Section 73 of the Evidence Act has conferred power upon the Court to compare the disputed signature with the admitted signature in order to ascertain whether the disputed signature is genuine, or not. If it is proved to the satisfaction of the Court, then there is no necessity for taking help of an expert as per provision of Sec. 45 of the Evidence Act. In that case, there is no necessity to send the disputed signature to an expert under Order 26, Rule 10A of the C.P.C. So, let us see as to whether the disputed signature dated 29.08.2006 appearing on Exbt. -1 is a genuine signature of the Defendant, or a forged signature. We have already found that the signature appearing on the Revenue Stamp on Exbt. -1 is the admitted signature of the Defendant. The Defendant in his Written Statement at para 2 ((THELAW)), page 6 has specifically stated that the signature appearing in the forged part which resembles that of the Defendant is not his signature. So, the Defendant has admitted that there is similarity in the signature appearing on the left side bottom dated 29.08.2006 on Exbt -1 with his admitted signature appearing on the Revenue Stamp on Exbt. -1. Curiously enough, the Defendant in his Written Statement, as well as in his Affidavit -in -Chief has stated about the resembles of the signature, but did not state anything about the dissimilarities. The Defendant did not explain as to the strokes and curves of the disputed signature, which are found not similar to his admitted signature. On the other hand, I clearly find that the stroke and curve of 'J' and 'D' of the signature of the Defendant Joydeb Dutta in the disputed signature are similar to the admitted signature appearing on the Revenue Stamp." Hence, the present writ petition.
(3.) Mr. Swapan Kumar Mullick, learned Advocate appearing for the petitioner submitted that just to safe the point of limitation to file the said Money Suit the plaintiff/opposite party has relied on the document whether the veracity of the signature and the contains of the said document has been challenged and disputed by the petitioner therefore, the petitioner/defendant filed that application for appointment of handwriting expert to examine the said disputed signature appeared in the said document.;