B.P. Das, J.
1. This revision application has bee filed challenging the order dated 4.5.1999 passed by the Civil Judge (Senior Division), Puri, in T.S. No. 127 of 1999 rejecting the petitioners' prayer to send the signatures of the testator on the Will to a hand-writing expert for examination.
2. As it appears from the statement of facts made by the petitioners, Binayak Mishra, O.P. No. 1 herein, instituted a proceeding Under Section 276 of the Indian Succession Act, 1925 (hereinafter called 'the Act') before the District Judge, Puri, for grant of Letters of Administration in respect of the properties covered by the Will so executed by his late father Gangadhar Mishra, on 22.8.1973. In the aforesaid proceeding, Satyanarayan Mishra, the present pro forma O.P. No. 2, was added as O.P. No. 1, and the present petitioners as O.P. Nos. 2 to 4. Said Binayak Mishra filed the aforesaid application for grant of Letters of Administration stating therein that Late Gangadhar Mishra, the father of the present O.P. Nos. 1 and 2, executed a Will on 22.8.1973 in presence of witnesses, which was duly registered by the District Sub-Registrar, Puri, on the same day, Gangadhar died on the next day i.e:, 23.8.1973. It is worthwhile to mention here that by virtue of the aforesaid Will, Gangadhar has bequeathed all his movable and immovable properties in favour of his two sons - Binayak and Satyanarayan, the present O.Ps. l Apart from the two sons, Gangadhar had a daughter, namely, Padmabati, who died shortly after the death of her father. The present petitioners are respectively the husband and the two sons of Padmabati. In the Court below, the present pro forma O.P. No. 2 filed his written statement stating therein that he had no knowledge about the Will of which the present O.P. No. 1 sought for grant of Letters of Administration till he received the notice of the misc. case arising out of the said proceeding. The present O.P. No. 2 further stated that he had filed a suit for partition being T.S. No. 130 of 1995 and the same was pending between the parties in the Court of the Civil Judge (Senior Division), Puri, in respect of the joint family properties. The present petitioners, who were O.P. Nos. 2 to 4 in the proceeding before the District Judge, filed their written statement stating therein that the Will was obtained by practising fraud; that the present O.P. No. 1 being an advocate had obtained a fraudulent, ante-dated and spurious deed in his support: and that the present O.Ps. have colluded with each other in order to deceive their sister-Padmabati of her legitimate share in the joint family properties. The stand of the present petitioners was that Gangadhar was seriously ill and had lost his mental balance much before his death and that the execution of the Will on 22.8.197.3, i.e., one day prior to the death of Gangadhar, cast a shadow of doubt in the minds of other parties about the genuineness of the Will. The sum and substance of their stand was that the Will had been created with the sale motive to grab the properties and that the testator had no knowledge about the alleged Will. That apart, when the pro forma O.P. No. 2 has already instituted a suit for partition wherein those petitioners were impleaded as defendants on the basis of an application made by them in that respect, the proceeding Under Section 276 of the Act has been initiated with the sole motive and intention to deprive the legal heirs of the daughter of Gangadhar from any share in the properties. In order to bring home their allegations, the present petitioners filed an application in the probate proceeding praying therein to send the signatures of the testator appearing on the Will to a hand-writing expert for examination since the signatures and the thumb impressions of the testator on the Will are forged. The further case of the present petitioners is that they also undertook to produce certain deeds containing the admitted signatures of the testator for comparison with the signature on the Will by the hand-writing expert. It is also the case of the present petitioners that while the application for sending the signatures of the testator to hand-writing expert was pending, the learned Court below wanted to proceed with the hearing of the case and to examine one witness on behalf of the present O.P. No. 1. On that day, i.e., 4.6.1999, the counsel appearing for the present petitioners filed a petition before the Court below to adjourn the hearing of the case on the ground that the petition for sending the signatures of the testator to the hand-writing expert was yet to be considered. It was also stated in the said petition that the counsel had no instruction with regard to cross-examination of the witness so produced on behalf of the present O.P. No. 1. The contention of the present petitioners is that the Court below while considering the application for adjournment took up the petitioners' application for sending the signatures to hand-writing expert and rejected both the applications on the same day on the ground that (i) there was no such pleading that the signatures and the thumb impressions appearing on the Will were not that of the testator; (ii) the admitted signatures of the testator had not been filed/ produced for being compared with the signatures appearing on the Will; and (iii) the Will being a registered one and one of the attesting witnesses having already proved the signatures of the testator, there was no necessity to send the signatures to the hand-writing expert for examination. Against the aforesaid order, the petitioners have come up with the present revision application. According to the petitioners, the learned Court below has proceeded with the matter in a great haste for the reasons best known to it.
3. Learned counsel for O.P. No 1 while supporting the order so passed by the learned Court below has vehemently argued that (1) the order so impugned is not assailable because no other signature of the testator was available with the Court with which the disputed signatures could be compared by a hand-writing expert; (2) there is no allegation in the pleadings that the signatures of the testator on the Will are forged ones or are not the signatures of the testator at all in the absence of which nothing remains to be compared by the hand-writing expert and, therefore, the prayer for referring the signatures to a hand-writing expert has been made with the sole motive to delay the disposal of the case; and (3) the rejection of the prayer for referring the signatures to the hand-writing expert does not come within the ambit of 'case decided': The learned counsel for O.Pp. No. 1 citing the provisions of Section 105 of the Code of Civil Procedure (in short, 'the CPC) argues that erroneous interlocutory order which affects the decision of the case may be attached in an appeal from the ultimate order or decree passed in the suit, and ' that the revisional powers should not be exercised unless there is no other remedy open for redressal of his grievance. In order of reinforce his argument, the learned counsel for O.P. No. 1 draws my attention to a decision of this Court in Sabitri Devi v. Baikuntha Das : AIR 1978 Ori. 140. In the aforesaid case, this Court held that by an order refusing to send a document for expert's examination, no right or obligation of the parties in controversy is adjudicated upon by the Court. It is a matter relating to procedure and, therefore, it does not come within the scope and ambit of the expression 'case which has been decided' which ultimately does not warrant exercise of jurisdiction Under Section 115 of the CPC (4) The suit out of which this civil revision arises was valued at Rs. 70,000/- and by Orissa Act 26 of 1991, Section 115 of the CPC has already undergone an amendment thereby conferring the jurisdiction on this Court only in cases where the valuation of the proceeding exceeds rupees one lakh. So, the valuation of this proceeding being less than rupees one lakh, this Court has no jurisdictions to entertain the revision. The further argument of the O.P. No. 1 is that as per the proviso to Sub-section (2) of Section 338 of the Act, since an appeal lies from the order of an inferior Court, the impugned order of rejection is appealable to the District Court and, therefore, this revision is not maintainable.
4. Before proceeding to deal with the merits of the case, let me first examine whether a revision is maintainable or not.
5. The contention of the learned counsel for O.P. No. 1 is that the present petitioners could not have filed this revision application because the valuation of the suit being less than rupees one lakh, the appropriate Court is the District Court. It may not be forgotten here that under the Act, so far as the proceeding for grant of Letters of Administration and probate of a Will is concerned, the appropriate Court is the concerned District Court/Judge and accordingly the proceeding was instituted before. the learned District Judge, Puri, who in turn transferred the same to the Civil Judge (Senior Division), Puri, for disposal in accordance with law. At this juncture, it is relevant to have a look at the provisions of Section 18 of the Orissa Civil Courts Act, 1984, which provide as follows :
'18. Proceedings under Indian Succession Act, 1925 (1) The High Court may, by general or special order, authorise any Civil Judge (Senior Division) to take cognizance of or any District Judge to transfer to a Civil Judge (Senior Division) under his administrative control, any proceedings or class of proceedings under the Indian Succession Act, 1925 (39 of 1925) which cannot be disposed by a District Delegate.
Explanation - 'District Delegate' means a District Delegate within the meaning of Section 265 of the Indian Succession Act, 1925 (39 of 1925).
(2) The District Judge may withdraw any proceedings referred to in Sub-section (1) to his own file and may dispose of them himself or may transfer them to a competent Court under his administrative control.
(3) Proceedings taken cognizance of, by or transferred to Civil Judge (Senior Division) shall be disposed of by him according to the rules applicable to like proceedings when dealt with by the District Judge.'
In the instant case, the proceeding was instituted before the District Judge and on being transferred by the District Judge, the same is being tried by the learned Civil Judge (Senior Division). Therefore, the reasonable conclusion would be that no revision shall lie to the District Judge arising out of the same proceeding, or before the same Court where the proceeding was instituted and subsequently transferred. Before arriving at the conclusion on the issue, it is profitable to take a glance at Section. 299 of the Act which reads as follows :
'Appeals from orders' of District Judge - Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals.'
As it appears, the obvious meaning of this section is that all orders made by the District Judge or District Delegates by virtue of the powers conferred upon him under the Act are subject to appeal in accordance with the rules of procedure laid down in the CPC.
So, in the instant case an order passed by the Civil Judge (Senior Division) invested with the powers of the District Judge for grant of Letters of Administration is covered under this section.
Hence, the contention of OP. No. 1 that an appeal shall lie against the order of the Civil Judge (Senior Division) to the District Judge holds no ground.
6. The next contention of the learned counsel for O.P. No. 1 is that proviso to Sub-section (2) of Section 388 of the Act provides that an appeal from any such order of an inferior Court shall lie to the District Judge, and not to the High Court. Hence, in the case at hand the petitioners could have filed an appeal before the District Judge having jurisdiction. According to the learned counsel for O.P. No. 1, from the aforesaid provision it is crystal clear that the forum is not the High Court. In other words, the present revision application is not maintainable.
The proviso to Sub-section (2) of Section 388 of the Act speaks as follows :
'Provided that an appeal from any such order of an inferior Court as is mentioned in Sub-section (1) of Section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.'
While dealing with this issue, one cannot ignore or overlook the provision in Section 388(1) of the Act, which speaks as follows :
'388. Investiture of inferior Courts with jurisdiction of District Court for purpose of this Act - (1) The State Government may, by notification in the official Gazette, invest any Court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part.'
The above provision makes it clear that the inferior Court invested with the powers of the District Judge under Sub-section (1) of Section 388 does not become a District Court but merely exercises certain functions of the District Judge under Part X of the Act. In other words, an inferior Court invested with the functions of a District Court under the above section is the original Court competent to entertain application under Part X. Part X of the Act deals with succession certificates. In my view, the proceeding for grant of probate and Letters of Administration and a proceeding for succession certificates are two separate proceedings and the provision of Section 388 of the Act is not applicable to the proceeding at hand. In the instant case, the District Judge transferred the matter to the Civil Judge (Senior Division) for disposal while retaining his jurisdiction conferred upon him by the statutes. Hence, by no stretch of imagination it can be conceived that the District Judge shall entertain a revision against the order of the Civil Judge (Senior Division) to whom the matter was transferred. In the result, the revision application is maintainable.
7. Then the question falls for determination is whether the impugned order of rejection of the application for sending the signatures of the testator for hand-writing expert's examination comes within the meaning of the expression 'case decided' and whether the same can be challenged in a proceeding Under Section 115 of the CPC.
I have gone through the decision so referred by the learned counsel for O.P. No. 1 in Sabitri Debi's case (supra). In this regard my attention is drawn to a decision of this Court in- Durga Prasad Agarwalla v. Binayendranath Banerjee. 82 (1996) CLT 737, in which while deciding a case of similar nature my learned brother P.. Ray, J. took into consideration the ratio of the decision in Sabitri Debi's case (supra) relied upon by the counsel for O.P. No. 1. While deciding the issue in question in the above case, this Court also relied upon the decision in State (Delhi Administration) v. Pali Ram : AIR 1979 SC 14, wherein it was laid down as follows :
'The matter can be viewed from another angle also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any hand-writing expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a hand-writing which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.'
While rendering the judgment, learned brother P. Ray, J. held as follows:
'The view expressed by a Single Judge in AIR 1979 Ori. 140 (supra) has been made without considering the judgment reported in AIR 1979 SC 14 (supra). The observation made therein was prompted by the consideration that the impropriety or illegality, if any, of the order refusing to send a document for Expert's examination can be raised ill appeal Under Section 105, CPC. In the present case one of the reasons given by the trial Court is that the plaintiffs are not entitled to dispute the genuineness of the disputed signature and writing because the said writing and signature were marked as Exhibits without objection. If that view of the trial Court is sustained, the plaintiffs may not also be allowed to raise same question in appeal. The effect of the impugned order is, therefore, to close their right to dispute the genuineness of the disputed signature and writing for good. Secondly, after the decisions in AIR 1979 SC 14 (supra) and AIR 1992 SC2I00 (supra) it cannot be held that the trial Court adopted the proper and correct approach. In my view the trial Court has acted with material irregularity in exercise of its jurisdiction and such irregularity is likely to occasion a failure of justice and cause irreparable injury to the petitioners. The decision in Sabitri Devi's case is distinguishable.'
In my opinion, no contrary view can be taken in this regard. Hence, the ratio laid down in Durga Prasad Agarwalla's case (supra) is squarely applicable to the facts and circumstances of the present case. Answering the question of maintainability in the affirmative, I now proceed to examine whether the facts and circumstances justify the rejection of the application for sending the signatures of the testator on the Will for examination by a hand-writing expert. The objection to this by O.P. No. 1 is that there was nothing in the pleadings to disclose that either the signatures were forged or the signatures did not belong to the testator.
I have gone through the L.C. Rs. and had the occasion of looking at the application so filed by the present petitioners for sending the signatures for examination by a hand-writing expert. The application has been written in Oriya wherein it has been clearly stated that the Will has not been executed within the knowledge of the testator because he was ailing for a long time and was not mentally sound and was in a comma stage and the Will appears to be a forged one and there is every possibility of the signatures and the L.T.I. of Gangadhar being forged. It is visibly clear that the petitioners in their application have stated in no uncertain terms that the signatures do not belong to the testator. In para 4 of the written objection so filed by the present petitioners who are opposite party Nos. 2 to 4 in the trial Court, it has been stated as follows :
'That the petitioner being an advocate and previously was acting as a teacher in order to deceive the present opp. parties the petitioner obtained a fraudulent, antedated, spurious deed in support of them........'
Nothing specific and better, in my view can be pleaded in exercise of the pleadings made. Hence, the allegation that there is nothing in the pleadings, as argued by the learned counsel for O.P. No. 1, does not absolutely hold god in view of the averments made in the written objection as well as in the application for sending the signatures for expert's examination.
8. Then the next question that arises for consideration is whether there was any other signature of the testator available with the Court with which the disputed signatures on the Will can be compared by the hand-writing expert. The disputed writing can be examined by the expert as per the contention of O.P. No. 1 only when the admitted writing/specimen writing is available for comparison. In this regard, it is worthwhile to have a glance at Section 73 of the Evidence Act, which provides as follows:
'Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger-impressions.'
At the same time let me look at the impugned order dated 4.5.1999 wherein it has been indicated by the learned trial Court that -'Advocate for Defendant Nos. 2 to 4 files time petition to adjourn the hearing of the suit on the ground that their petition for sending the signature of the testator to the hand writing expert has not yet been considered inasmuch as he has no instruction to cross-examine the witness to be examined on behalf of the plaintiff today. 'Hence, the trial Court proceeded to dispose of the petition dated 29.4.1999 which was filed by the present petitioners for the purpose as aforesaid. Accordingly, the petition dated 29.4.1999 as well as the petition praying for adjournment of the hearing were taken up and both the petitions were rejected by order dated 4.5.1999. Later on, another order was passed on the same day by closing the present O.P. No. l's evidence and directing the matter to be put up on 6.5.1999 for further hearing. In my view, no opportunity was given to the present petitioners to prove the signatures of the testator to produce any admitted signature before the Court below for comparison. In my view, there is some element of truth in the submission of the counsel for the petitioners that the learned trial Court proceeded in a hasty manner in order to close the proceeding for the reasons best known to him which he ought not to have done. Such a situation has also been taken care of by the decision of this Court in Durga Prasad Agarwalla's case (supra). So, the contention of O.P. No. 1 that there was no admitted signature before the Court to compare the same with the signatures on the Will fails, because of the reason that no opportunity was afforded to the petitioners to produce the admitted signature before the Court. In my opinion, while relying on the aforesaid decision the crux of the issue, whether the signatures on the Will are genuine or false, can be settled only if the signatures on the Will shall be examined by an expert. In order to ascertain the truth or otherwise and in order to adjudicate upon the issue fairly, it is necessary to send the document for examination of a hand-writing expert. In the facts and circumstances of the case and for the reasons stated above, I am of the view that the trial Court has committed material irregularity in exercising its jurisdiction which is likely to occasion a failure of justice and if the impugned order is allowed to stand it shall cause irreparable loss and injury to the petitioner.
9. The impugned order stands to no reason. The revision application is accordingly allowed. The learned trial Court is directed to re-consider the application of the petitioners for sending the signatures on the Will for examination by a hand-writing expert keeping in view the observations of this Court in Durga Prasad Agarwalla's case (supra). Such re-consideration should be completed within a period of three weeks from the date of receipt of this order. The petitioners herein shall also produce before the trial Court the admitted signatures of the testator within a specific time to be fixed by the trial Court in order to enable the trial Court to dispose of the petition within the time granted above. The L.C. Rs. be sent back at once.
There shall be no order as to costs.