J.N.Hore, J. - (1.) This revisional application is directed against .Order Nos. 118 and 119 both, dated 14.5.54 passed by the learned Munsif, Amta in Title Suit No. 53 of 1971 allowing the plaintiff's prayer for appointment of a handwriting expert for examining the disputed deed of agreement.
(2.) Late Sudhamoy @ Sudarsan Bhuniya, the predecessor in interest of the opposite parties, instituted Title Suit No. 53 of 1971 in the Court of Munsif at Amta against the petitioner as defendant under Sections 30, 36 and 37A of the Bengal Money Lenders Act, upon the allegations that he had mortgaged the Suit property for a sum of Rs. 500 with the defendant petitioner on 16th Jaistha 1375 B.S. with interest at the rate of Rs. 4 per month and since the defendant had no money lending licence. He got an ostensible sale deed executed by the plaintiff along with an unregistered agreement for reconveyance for a sum of Rs. 500 together with 2 years interest at the said rate amounting to Rs. 480 aggregating to Rs. 980. According to the plaintiff the transaction was a loan in substance. He prayed for reopening the transaction declaring the same as loan transaction and for repayment thereafter in 10 equal instalments and for executing a deed of reconveyance by the defendant in favour of the plaintiff, Petitioner/deed of reconveyance by the defendant in favour of the plaintiff. Petitioner/defendant contested the Suit by filing a written statement in which it was pleaded, inter alia, that the disputed transaction was an out and out sale and not a loan transaction. The defendant never executed any deed of reconveyance and the purported deed of agreement for reconveyance was a forged one. It was further alleged that there was no scope for any interest and that the defendant paid the entire consideration of Rs 980. The learned Munsif decreed the Suit on 30.5.73. The petitioner/defendant preferred an appeal against the said judgment and decree, dated 30.5.73 being Title Appeal No. 168 of 1973 which was allowed by the Learned Additional District Judge, 2nd Court, Howrah, who remanded the Suit to the Court below for rehearing with the directions to give an opportunity to the plaintiff to cite and examine the handwriting expert and to allow the plaintiff an opportunity to prove the agreement for reconveyance according to law. In spite of such opportunity the plain-tiff did not examine the handwriting expert nor the deed of agreement for reconveyance was proved at the time of the Trial. The Learned Munsif dismissed the Suit on 22nd December 1978. Against the said decree of dismissal the opposite party preferred an appeal being Title Appeal No. 27 of 1979 which was allowed by the Learned Sub-ordinate Judge, 2nd Court at Howrah. The Learned Sub-ordinate Judge remanded the Suit to the Court below for disposal in according with the following directions: "However, considering the entire circumstances and for the ends of justice, I think the plaintiff should be given another opportunity to examine the Ekrarnama by a Government expert. Be it mentioned that the entire cost of the expert will be borne by the plaintiff irrespective of the result of the Suit. The plaintiff/appellant is given an opportunity to file the said application for examination of the Government expert within 1 month from the receipt of the record in the Lower Court failing which the Learned Munsif shall dispose of the Suit on the materials already on record. If the expert is appointed the party shall be given an opportunity to prove the report of the handwriting expert according to law and the other side shall also be given an opportunity to adduce rebutting evidence as may be advised. Be it mentioned that only evidence recording the handwriting expert and the proving of Ekrarnama will be allowed by the Court below. The party shall not be allowed to adduce evidence on any other point".
(3.) The records of the case on remand were received by the Court below on 30.9.83 but the plaintiff/apposite parties did not take any steps for appointment of any handwriting expert within the time specified by the Appellate Court. It was only on 10th January 1984 that the opposite parties filed an application under Order 26, Rule10A of the Code of Civil Procedure for appointment of a handwriting expert. On 12th March, 1984, the opposite parties filed an application under Section 5 of the Limitation Act read with Section 151 of the Code of Civil Procedure for condonation of delay. By the impugned Order Nos. 118 and 119 both, dated 14.5.84, the Learned Munsif allowed both the applications allowing the plaintiffs prayer for appointment of a handwriting expert after condoning delay. Being aggrieved by the said Orders the petitioner moved this Court in revision and obtained the present Rule.;