Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010097522019
IN THE BOMBAY CITY CIVIL COURT AT GR. MUMBAI
NOTICE OF MOTION NO.3583 OF 2019
IN
S. C. SUIT NO.2141 OF 2017
Dinesh Pyarelal Jaiswal and another … PLAINTIFFS
Versus
Jayesh Pyarelal Jaiswal and another … DEFENDANTS
APPEARANCES :
Mr. Abhishek Gupta, Advocate for Plaintiffs.
Mr. Arvind Taral, Advocate for Defendants.
CORAM : V. M. SUNDALE, ADHOC JUDGE
COURT ROOM NO.02
DATED : 27th JANUARY, 2026
ORDER
01. The present Notice of Motion is taken out by Defendant
No.1 seeking, inter alia, directions to send the Family Settlement Deed
dated 23.03.2016 to a handwriting expert for verification of its
genuineness, a declaration that the said deed is null and void and not
binding upon him, consequential directions to lodge an FIR under
Sections 195 and 340 of the Code of Criminal Procedure against the
Plaintiffs, and for stay of further proceedings in S.C. Suit No. 2141 of
2017.
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(2)
02. Briefly stated, it is the case of Defendant No.1 that, the
Plaintiffs have instituted the present suit seeking reliefs in respect of
Room No.4 situated at Subhadra Niwas Co-operative Housing Society,
Ghatkopar (West), Mumbai. According to the Plaintiffs, their claim is
founded upon a Family Settlement Deed dated 23.03.2016, under
which rights and obligations were allegedly crystallised between the
parties. It is the Plaintiffs’ case that Defendant No.1, after acting upon
the said document and issuing cheques pursuant thereto, has
subsequently resiled from his obligations and is attempting to defeat the
Plaintiffs’ legitimate rights by raising false disputes regarding the
genuineness of the document. Defendant No.1, on the other hand,
contends that the suit premises originally belonged to the parents of the
parties and that, during their lifetime, there was a distribution of rooms
between the two sons. It is asserted that a genuine Family Settlement
Deed was executed on 21.03.2016 and that the Plaintiffs thereafter
fabricated a bogus and forged Family Settlement Deed dated
23.03.2016 by replacing pages and without proper consent or
attestation. Defendant No.1 alleges that the said document is relied
upon by the Plaintiffs solely to grab the suit property and to harass him
despite full knowledge of the true state of affairs.
03. It is further the case of Defendant No.1 that the alleged
Family Settlement Deed dated 23.03.2016 does not bear the signatures
or thumb impressions of all necessary parties and that his own signature
thereon is forged. On this premise, Defendant No.1 submits that unless
the document is sent to a handwriting expert, the truth cannot be
unearthed. He further contends that criminality is writ large on the face
of the record and, therefore, appropriate action under Sections 195 and
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Order (3) Notice of Motion No.3583/2019
in S.C. Suit No.2141/2017
340 of the Code of Criminal Procedure is warranted even at this stage of
the proceedings.
04. Per contra, the Plaintiffs, in their reply affidavit, have
categorically denied the allegations of forgery and fabrication. The
Plaintiffs assert that Defendant No.1 has admitted execution of the
Family Settlement Deed dated 23.03.2016 by acting upon it and by
issuing several cheques in their favour. According to the Plaintiffs, the
dispute raised by Defendant No.1 is an afterthought, intended only to
delay the trial and to frustrate the Plaintiffs’ lawful claim. It is further
contended that the question of genuineness of the document is a matter
of evidence and cannot be adjudicated at the interlocutory stage. The
Plaintiffs further submit that both settlement deeds relied upon by the
parties are said to have been executed in close proximity of time and
are attested by common witnesses. In such circumstances, sending one
of the documents to a handwriting expert at this stage would amount to
pre-judging the issues and conducting a mini trial. The Plaintiffs
contend that the veracity of the documents can be effectively tested
during trial by examination and cross-examination of witnesses and by
leading appropriate documentary evidence. Hence, the reliefs sought in
the Notice of Motion are stated to be wholly misconceived.
05. Upon consideration of the rival submissions, the following
points arise for determination:
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(4)
S.N. POINTS FINDINGS
01. Whether Defendant No.1 has made out a prima
facie case for sending the Family Settlement
Deed dated 23rd March, 2016 to a Handwriting
Expert at the interlocutory stage?
No
02. Whether the reliefs seeking declaration of
nullity of the document and initiation of
criminal proceedings can be granted in Notice
of Motion?
No
03. What order? As per Final
Order
REASONS
POINT NOS.01 TO 03:
06. As regards the first point, the power to send a document to
a handwriting expert is discretionary and is required to be exercised
with caution. In the present case, the genuineness of the Family
Settlement Deed dated 23.03.2016 is seriously disputed and involves
contested questions of fact relating to execution, conduct of the parties
and credibility of witnesses. Such issues cannot be conclusively
determined on affidavits at the interlocutory stage. Sending the
document to a handwriting expert at this stage would amount to pre-
judging the issues and conducting a mini trial. Moreover, both parties
rely upon rival settlement deeds executed in close proximity of time and
allegedly attested by common witnesses, whose testimony would be
material for adjudication. The evidentiary value of the documents and
the alleged signatures can be effectively tested during trial by
examination and cross-examination of witnesses and by leading
appropriate evidence, including expert evidence, if required, at the
appropriate stage. Hence, no prima facie case is made out for referring
the document to a handwriting expert at this stage.
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Order (5) Notice of Motion No.3583/2019
in S.C. Suit No.2141/2017
07. So far as second point is concerned, the prayers seeking a
declaration that the Family Settlement Deed dated 23 March 2016 is
null and void and for issuance of directions under Sections 195 and 340
of the Code of Criminal Procedure are clearly substantive in nature.
Granting such reliefs at the stage of a Notice of Motion would amount
to granting final reliefs without trial. The jurisdiction under Sections
195 and 340 CrPC is required to be exercised sparingly and only after
recording a finding that it is expedient in the interest of justice to
initiate such proceedings, which stage has not yet arisen in the present
suit. It is also material to note that Defendant No.1 has already raised
all contentions regarding forgery, fabrication, and misuse of documents
in his pleadings. He will have full opportunity to lead evidence in
support of his case during trial. Merely because serious allegations are
made, it does not automatically warrant recourse to expert opinion at
the threshold. The balance of convenience, at this stage, lies in
permitting the suit to proceed to trial rather than stalling it by
entertaining collateral proceedings.
08. In view of the aforesaid discussion, this Court is of the
considered opinion that Defendant No.1 has failed to make out a prima
facie case for grant of the reliefs sought in the Notice of Motion. No
irreparable injury is shown to be caused to Defendant No.1 if the
document is not sent to a handwriting expert at this stage, whereas
granting such relief would unnecessarily delay the trial and prejudice
the Plaintiffs. All issues raised can be appropriately adjudicated after
evidence is led by both parties. In view of my above discussion, I
answered Point No. 1 & 2 in negative and in reply Point No.3, pass the
following order.
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(6)
ORDER
(i) The Notice of Motion No. 3583 of 2019 taken out by Defendant
No.1 in S.C. Suit No. 2141 of 2017 is rejected.
(ii) The prayers seeking reference of the Family Settlement Deed
dated 23 March 2016 to a handwriting expert, declaration of the said
document as null and void, initiation of proceedings under Sections 195
and 340 of the Code of Criminal Procedure, and stay of further
proceedings in the suit are refused.
(iii) It is clarified that all contentions raised by the parties with respect
to the genuineness, validity, and evidentiary value of the documents
relied upon by them are kept open to be decided on their own merits at
the time of final hearing of the suit.
(iv) No order as to costs.
Date: 27.01.2026
(V. M. Sundale)
Ad-hoc Judge,
Bombay City Civil Court,
Gr. Mumbai.
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Order (7) Notice of Motion No.3583/2019
in S.C. Suit No.2141/2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
28.01.2026 1.15 p.m. Shilpa P. Pawar
Stenographer - Grade IUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Adhoc Judge
Shri. V. M. Sundale
Court Room No.2
Date of Pronouncement of ORDER 27.01.2026
ORDER signed by P. O. on 28.01.2026
ORDER uploaded on 28.01.2026
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