JUDGMENT
Satish Kumar Mittal, J.
1. The plaintiff has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 6.11.2003, passed by Additional Civil Judge (Senior Division), Jagadhri, whereby the application of the petitioner seeking direction to the respondent-defendant to give his specimen thumb impression in order to seek fresh expert report has been dismissed.
2. In this case, the petitioner filed a suit for possession by way of specific performance on the basis of agreement of sale dated 2.7.1999 with regard to land measuring 16 kanals 14 marlas, which was agreed by the respondent to be sold to the petitioner. The respondent, in this written statement, has denied the execution of the said agreement as well as the receipt of the earnest amount.
3. In order to prove thumb impression of the respondent on the agreement, the petitioner moved an application for taking specimen thumb impressions of the respondent, which was allowed and the specimen thumb impression of the respondent was taken by the Document and Hand-writing expert Shri Ram Dhan Babbar. Subsequently, report was given by him, copy of which has been placed on record as Annexure P-3. In the said report, it has been stated that the disputed thumb mark is mostly smudged and only its right portion is comparable, therefore, the specimen and thumb mark does not serve the purpose of comparison. Hence, it was requested that a fresh specimen of left thumb of Bashir (respondent) fully rolled and plain up to the nail may be taken for comparison.
4. After that report, the petitioner moved application for issuing direction to the respondent to give his specimen thumb impression. The said application has been dismissed by the trial Court, while observing as under:
3. Heard. The perusal of the report given by the handwriting expert reveals that questioned thumb impressions on the agreement dated 2.7.99 are identical with this specimen left thumb print of Bashir Mark-S-1 taken in the Court. Vide para 9 of the report he has made report that he has not found any point of differences of fundamental nature in formation of ridges and their sequence in the disputed thumb prints marked Q-1 to Q-5 and specimen thumb print marked S-1. The report of the handwriting expert is clear qua disputed thumb impression. I do not find any ground to allow the second application of the plaintiff for seeking specimen thumb impressions of the defendant on the same footing, which is not maintainable, in the eye of law. Hence application is dismissed. Now the case is adjourned to 25.2.2004, for evidence of the plaintiff at own responsibility.
5. I have heard the arguments of learned Counsel for the parties and have gone through the contents of the impugned order as well as the petition.
6. In my opinion, the trial Court has committed grave illegality while rejecting prayer of the petitioner. In this case, the respondent has denied execution of the agreement, for which the instant suit for specific performance has been filed. Earlier, on the direction of the Court, specimen thumb impressions of the respondent were taken and compared by the Handwriting and Finger prints expert and he submitted the report with the request that specimen thumb impressions of the respondent be taken again so that proper report can be made regarding comparison of both the thumb impression. If the expert wants that fresh thumb impressions are required, then the same cannot be denied on the ground that earlier the thumb impressions were taken. It is always in the interest of justice that every party should be given full opportunity to prove his case. The comparison of thumb impression of the respondent with the thumb impression on the agreement is the relevant and material issue in the suit. Therefore, in my opinion, the petitioner, who is plaintiff should be provided full opportunity to prove his case.
7. In view of the above, this petition is allowed. The impugned order dated 6.11.2003, is set aside and the petitioner is permitted to take fresh specimen thumb impression of the respondent.
