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TMI Blog2018 (11) TMI 1916X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the law that has evolved in the judgments delivered in Vijay Achyut Ashtikar, the Trial Court should have taken a pragmatic view rather than taking a pedantic view in the matter. The endevour of the court is to ensure that the truth surfaces. If the ends of justice are to be met and especially in view of the peculiar facts of this case when the Trial Court was directed to decide the suit afresh, the rejection of Exh.44 would not come in way of the petitioner/ defendant. This petition is partly allowed. - 901 Writ Petition No. 10793 of 2015 - - - Dated:- 28-11-2018 - Ravindra V. Ghuge, J. Advocate for Petitioner : Shri N. S. Jaju Advocate for Respondent : Shri. S. S. Chapalgaonkar h/f Shri. S. R. Andhale. ORDER PER COURT : 1. RULE. Rule made returnable forthwith and heard finally by the consent of the parties. 2. I have heard the learned advocates for the respective sides at length on 27.11.2018 and the matter was posted today for passing orders. 3. The petitioner, who is the original defendant in Special Civil Suit No. 117 of 2006, is aggrieved by the order dated 09.10.2015 passed by the learned Trial Court below Exh.189 and Exh.190. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent. 8. The learned advocate for the petitioner draws my attention to the judgment delivered by this Court (Coram : S. V. Gangapurwala, J.) dated 13.02.2013 when the petitioner was before this court in First Appeal No. 3675 of 2011. The suit of the appellant plaintiff was dismissed. This Court, while allowing the appeal and in order to give an opportunity to the plaintiff to contest the suit on its merits, imposed costs and observed in paragraph Nos. 9(a) as under : In the result, I pass the following order : (a) The impugned judgment and decree is quashed and set aside. The matter is remanded to the Trial Court for deciding the suit afresh. The parties shall appear before the Trial Court on 11.03.2013. The appellant shall pay costs of Rs.20,000/ (Rupees twenty thousand) to the respondent on or before 11.03.2013. If the cost is deposited in the Trial Court, the defendant / respondent is allowed to withdraw the same. The Court shall allow the plaintiff and defendant an opportunity to adduce evidence so also cross examine the respective witnesses. 9. The petitioner contends that this Court set aside the judgment in the civil suit while allowing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be ignored that firstly, the said judgment was delivered in a criminal matter considering Section 300 of the Cr.P.C. and secondly, there was no direction in the said matter, by which, the said proceedings were reopened for a retrial, as like in this case where the judgment of this Court dated 13.02.2013, operative part of which is reproduced herein above, by which, this Court directed the Trial Court to decide the suit afresh and permitted the litigating sides to adduce fresh evidence. 12. In view of the above, it needs to be considered as to whether the prayer made by the petitioner /defendant in application Exh.190 could be entertained. 13. This Court in the matter of Vijay Achyut Ashtikar and another Vs. Vinayak Achyut Ashtikar, Writ Petition No. 6751 of 2016 has taken a view vide order dated 08.02.2018 delivered at the Nagpur Bench that the technology is now available to consider the age of the ink appearing on a document. If the original copy of the document containing the writing is available, the Nutron Activation Analysis, BABC, Mumbai has the facility to find out the approximate range of the time during which the writings would have been made. The said Instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06/11/1991 by taking into consideration the contents of pursis dated 02/08/2017. It is made clear that both the parties would be free to subject to the report of the Commissioner and the question whether the age of the ink on the Will can be determined by such examination would also considered by the trial Court. 14. The Andhra Pradesh High Court considered a similar position in the matter of Mr. Namineni Audi Seshaiah Vs. Mr. Nuburu Mohan Rao, Civil Revision Petition No. 4656 of 2018 decided vide judgment dated 25.09.2018 and concluded in paragraph Nos. 10, 11, 16 and 18 as under : 10. It is observed in A. Inayathulla supra, another expression of the Madras High Court in K. Vairavan v. Selvaraj, and that though there is scientific method available, there is no expert available who can scientifically examine particularly at the Forensic Science department of the Government of Tamilnadu. The Central Forensic Sciences Laboratory, Hyderabad, expert attended the Tamilnadu Judicial Academy to address the officials also stated that no expert is available there had and the fax message received from assistant Director of Central Forensic Sciences Laboratory, Hyderabad, of there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acility to find out the approximate range of the time during which the writings would have been made and that is also a Central Government Organization. 18. Having heard to the above, this Civil Revision Petition is allowed by setting aside the order of the lower Court by restoring and allowing the application with a direction to the lower Court to direct the defendant to deposit Rs.20,000/ and send the document to the Nutron Activation Analysis, BABC, Mumbai, which is a Central Government Organization where the facility of determination of age of the ink available for its determination, on petitioners ascertain the full and correct address and availability of the facility and from deposit of the amount. 15. The case of the defendant is that he has signed on a blank document, which was tendered as a surety to the plaintiff. Subsequently, with the intention of misusing the blank document, the plaintiff had written an agreement on the said blank stamp paper so as to be used to the prejudice of the defendant. The plaintiff has denied these contentions and has contended that the document was prepared and duly signed by the defendant. It was in this backdrop that the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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