Case Note & Summary
The case arises from a partition suit filed by Respondent No.1 (original Plaintiff) against the Petitioners (original Defendants) concerning ancestral properties. The Plaintiff alleged that the suit properties were joint family properties, while the Defendants claimed that the properties were self-acquired by the common ancestor Vishnu and bequeathed to them by a Will. The Plaintiff challenged the genuineness of the Will and filed an application before the Trial Court for appointment of a handwriting expert, which was rejected on 13.2.2000. The suit was dismissed on 4.4.2000. In appeal, the Plaintiff again filed an application under Order 26 Rule 10A read with Section 151 CPC for referring documents to a handwriting expert. The First Appellate Court allowed the application, leading to the present writ petition. The Petitioners argued that the earlier rejection operated as res judicata. The High Court held that the earlier order was an interlocutory order and did not bar the Appellate Court from passing a fresh order in the interest of justice. The petition was dismissed, and the Appellate Court was directed to expedite the appeal.
Headnote
A) Civil Procedure - Appointment of Court Commissioner - Order 26 Rule 10A read with Section 151 of the Code of Civil Procedure, 1908 - The First Appellate Court allowed an application for referring documents to a handwriting expert to ascertain the genuineness of a Will - The Petitioners challenged the order on the ground that a similar application was earlier rejected by the Trial Court and not challenged - Held that the earlier order was an interlocutory order and did not operate as res judicata; the Appellate Court was competent to entertain the application in the interest of justice (Paras 1-6).
Issue of Consideration
Whether the First Appellate Court was justified in allowing the application for appointment of a handwriting expert under Order 26 Rule 10A read with Section 151 CPC, despite the earlier rejection of a similar application by the Trial Court.
Final Decision
The High Court dismissed the writ petition, holding that the order of the First Appellate Court allowing the application for appointment of a handwriting expert was justified. The Court directed the Appellate Court to expedite the hearing of the appeal and dispose it of as expeditiously as possible.
Law Points
- Order 26 Rule 10A CPC
- Section 151 CPC
- Article 226 Constitution of India
- Appointment of Court Commissioner
- Handwriting Expert
- Res Judicata
- Interlocutory Orders
- Appellate Court Powers
Case Details
2011 LawText (BOM) (11) 36
Writ Petition No.9919 of 2010
Mr. P.B.Gujar for the Petitioners, Mr. Umesh Mankapure for Respondent No.1
Shivaji Vishnu Kshirsagar & Ors
Sayaji Vitthal Kshirsagar & Anr.
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Nature of Litigation
Civil writ petition challenging an order of the District Judge allowing appointment of a handwriting expert in a partition suit.
Remedy Sought
The Petitioners (original Defendants) sought to quash the order dated 21.9.2010 passed by the District Judge, Satara, allowing the application for appointment of a handwriting expert.
Filing Reason
The Petitioners contended that the earlier rejection of a similar application by the Trial Court operated as res judicata and the Appellate Court could not entertain a fresh application.
Previous Decisions
The Trial Court rejected the Plaintiff's application for handwriting expert on 13.2.2000; the suit was dismissed on 4.4.2000; the First Appellate Court allowed a fresh application for handwriting expert on 21.9.2010.
Issues
Whether the First Appellate Court could allow an application for appointment of a handwriting expert under Order 26 Rule 10A CPC despite the earlier rejection of a similar application by the Trial Court.
Whether the earlier order of the Trial Court rejecting the application operated as res judicata.
Submissions/Arguments
Petitioners argued that the earlier order dated 13.2.2000 rejecting the application for handwriting expert was not challenged and had become final, and the Appellate Court could not entertain a fresh application.
Respondent No.1 argued that the earlier order was an interlocutory order and did not bar the Appellate Court from passing a fresh order in the interest of justice.
Ratio Decidendi
An interlocutory order rejecting an application for appointment of a court commissioner does not operate as res judicata, and the Appellate Court is competent to entertain a fresh application under Order 26 Rule 10A read with Section 151 CPC in the interest of justice.
Judgment Excerpts
The earlier order dated 13.2.2000 was an interlocutory order and the same would not operate as res judicata.
The First Appellate Court was therefore justified in allowing the application filed by the Respondent No.1.
Procedural History
Regular Civil Suit No.134 of 1990 filed by Respondent No.1 for partition and possession. Trial Court rejected Plaintiff's application for handwriting expert on 13.2.2000. Suit dismissed on 4.4.2000. Appeal filed as Regular Civil Appeal No.172 of 2000. In appeal, Plaintiff filed fresh application for handwriting expert which was allowed on 21.9.2010. Petitioners filed Writ Petition No.9919 of 2010 challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908: Order 26 Rule 10A, Section 151
- Constitution of India: Article 226
