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Dhoba Das and ors. Vs. Gurucharan Uttar Singh Mohapatra and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 334 of 1970
Judge
Reported in37(1971)CLT968
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115; High Court Rules; High Court Orders
AppellantDhoba Das and ors.
RespondentGurucharan Uttar Singh Mohapatra and anr.
Appellant AdvocateG.C. Patnaik and ;Rabi Mohanty, Advs.
Respondent AdvocateR.N. Mohanty, Adv. (2)
DispositionRevision allowed
Excerpt:
.....india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the defendants in several petitions of theirs clearly indicated that the treasury officer was not issuing the certificate and had made a reference to the accountant general for instructions. the learned trial judge would have done well to have required the treasury officer to comply with the general letter of this court. 3 of 1964 (civil) the court observe that the presiding officers should exercise their best discretion and choose the expert to whom a document in a particular case is to be sent'.in case the learned trial judge found that it was not convenient to send..........by the defendants to send the document for examination by the hand-writing expert. the learned trial judge called upon the defendants to deposit rs. 250/- in the treasury office for sending the document to the expert. the defendants deposited rs. 250/- and tendered the challan for it. the learned trial judge called upon the defendants to produce a special certificate. several adjournments were granted to the defendants for the purpose of producing the special certificate from the treasury officer in compliance with general letter no. 3 of 1964 issued by this court. on 18-8-70, the learned trial judge directed that unless the defendants produce the certificate by 25-8-70 the order for sending the document to the expert would be recalled and the suit would be taken up for argument. on.....
Judgment:
ORDER

R.N. Misra, J.

1. The defendants in T. S. No. 261 of 1968 are the petitioners. The suit was one for partition. After the entire evidence for both sides was recorded, a dispute arose about the genuineness of a document which was marked as Ext. 6, a Patta. On 21-7-70, an application was made by the defendants to send the document for examination by the hand-writing expert. The learned Trial Judge called upon the defendants to deposit Rs. 250/- in the treasury office for sending the document to the expert. The defendants deposited Rs. 250/- and tendered the challan for it. The learned Trial Judge called upon the defendants to produce a special certificate. Several adjournments were granted to the defendants for the purpose of producing the special certificate from the Treasury Officer in compliance with General Letter No. 3 of 1964 issued by this Court. On 18-8-70, the learned Trial Judge directed that unless the defendants produce the certificate by 25-8-70 the order for sending the document to the expert would be recalled and the suit would be taken up for argument. On 25-8-70, the defendants made another application for time on the allegation that the Treasury Officer had written to the Accountant General for instructions in the matter and had not received any reply and therefore, he was not in a position to issue the certificate. Time was extended till 5-9-70. On that day the following order was passed:

'Defendants 1 to 3 again pray for time to obtain certificate. Already more than one month have passed. No further time will be given. The petition is rejected and the order of sending the documents to the expert is recalled. Put up on 8-9-70 for argument.'

Against this order, the defendants are in revision before this Court.

2. The learned Trial Judge obviously has not appreciated the difficulty of the defendants. The defendants have deposited the amount of Rs. 250/- on the very first occasion and within the time granted to them. They produced the challan showing the deposit. The next question was the requirement to produce the certificate as required by this Court. The certificate is said to be in the following form:

'Certified that a sum of rupees two hundred and fifty (Rs. 250) has been deposited in the ........................ treasuryon ............... on account of the Government Examiner of questioned Documents fee in case/suit No. ........................ andthat this amount has been shown under head XIX-Police-Central Miscellaneous, in the Cash Account of Central subjects for the month of ............ and appears atitem No.............in the relevant Receiptschedule.

Signature of Treasurv Officer.

Countersigned.

Signature of officer submitting the case.' In general letter No. 3 of 1964 issued by this Court direction was given that such a certificate should be required before the document is sent for examination by the Government Examiner. The learned Trial Judge appears to have insisted upon such a certificate. The defendants in several petitions of theirs clearly indicated that the Treasury Officer was not issuing the certificate and had made a reference to the Accountant General for instructions. A situation had been created which was certainly beyond the control of the defendants. The learned Trial Judge would have done well to have required the Treasury Officer to comply with the General Letter of this Court. Instead of doing that (sic) the defendants had not complied with the direction. It was not within the means of the defendants to obtain the certificate when the public officer concerned was not issuing it. The learned Trial Judge was not bound to send the document to the Government Examiner at Calcutta. This Court in General Letter No. 2 of 1965, dated 11-8-65 had indicated:

'I am directed to refer to the Court's General Letter No. 3 of 1964 (Civil) and Circular Letter No. 5032 (28) dated 29-7-64, on the above subject and to say that it has been represented to the Court that there will be difficulty in implementing the instructions contained therein, in view of the fact that costs to be incurred for bringing the opinion of the Government Expert will not only be prohibitive but in some cases, it may be quite out of proportion to the value of the subject matter itself, particularly when the documents in question relate to suits of small valuation. Moreover as the Government Examiner at Calcutta functions for a number of States, it may not be convenient for him to attend to documents from different courts of this State expeditiously. Even in some cases, he may have to be examined personally and as he may remain busy in connection with the work from other States and might not be available in head quarters always, it may not be possible to secure his attendance early. On further consideration and in partial modification of the Court's General Letter No. 3 of 1964 (Civil) the Court observe that the presiding officers should exercise their best discretion and choose the Expert to whom a document in a particular case is to be sent'.

In case the learned Trial Judge found that it was not convenient to send the document to the Government Expert in which case alone that special certificate is necessary, it was open to the learned Trial Judge in his discretion to nominate some other expert.

3. At any rate, it was not proper for the learned Trial Judge to recall his order for examining the document by an expert, particularly when it is not the defendants who are to blame for non-production of the certificate. There may be more instances of this type where litigants could not be in a position to brine the special certificate. If necessary suitable action should be taken by the Court on the administrative side to see that such an impasse is not created. But for the purpose of this case I think the learned Trial Judge exercised his jurisdiction with material irregularity. I would accordingly vacate his order and call upon him to require the Treasury Officer to give the certificate as required under the Government of India Circular Letter which accompanied General Letter No. 3 of 1964 and in case that does not conveniently work, it is open to him to send the document to some other expert. The Civil Revision is allowed. The impugned order is set aside. There would be no order as to costs.


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