- (1.) The said order rejected an application of the plaintiff for appointment of a handwriting expert to challenge the signature on the plea that both in the plaint the evidence-in-chief as also in the cross- examination the plaintiffs had averred and deposed that the signature on the deed was not that of their father. It is now well settled that such plea is normally made on or at the time of trial of the suit after the document in question is produced in evidence. The plaintiffs did not ever take steps for appointment of handwriting expert in course of the arguments or at any time after filing of the suit and even before, despite knowledge of existence of such deed, and according to the opposite party, the learned court below has rightly dismissed the plaintiffs' application. It is also submitted that the application has been filed with intent to prolong the suit.
(2.) In reply, the revisionists submit that the learned court below recorded that the entire evidence already gone against the averments in the plaint and the plaintiffs' claims and that the application by the revisionists, is an afterthought. This, according to the revisionists, shows that the learned court below has prejudged the issue in question. In so far as the last argument of the plaintiffs is concerned, I cannot countenance the same inasmuch as the trial Judge while hearing the evidence and after closure thereof is entitled to form views in so far as the merits of the case are concerned. There is, however, one vital issue that needs to be noticed. Whenever an allegation as regards the propriety and genuineness of the signature on a documents is raised, a court, in terms of Section 73 of the Evidence Act, is required to compare the signature with an admittedly and undisputed signature of the person who is stated to have signed that document and come to a prima facie view.
(3.) The learned court below has failed to do in course of trial, particularly in the light of a statements of the plaintiffs in the plaint, evidence in chief as well as cross examination has consistently maintained that the signature on the alleged gift deed is not that of their father. The court should have immediately embark upon the process of comparison of signature in terms of Section 73 of the said Act. It appears that the learned court below has not done so and has committed error in this regard. In such circumstances, the learned court below shall first receive an application from the plaintiff under Order XXVI Rule 10(a) of the Code read with Section 73 of the said Act and embark upon a comparison of the signature on the gift deed in question alongwith any admitted signature on any existing undisputed and admitted signature of the executant deed. Upon recording of any discrepancy or otherwise the court shall consider and pass appropriate orders under Order XXVI Rule 10(a) of the Code. ;