Birmati Vs. Naseeb
Singh [2008] INSC 1183 (21 July 2008)
Judgment
CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO.4585 OF 2008 (Arising out of S.L.P. (C) No.15637
of 2007) Birmati ... Appellant(s) Versus Naseeb Singh ... Respondent(s) ORDER
Leave granted.
Heard learned counsel
for the parties By an order dated 7.4.2004,the trial Court dismissed the
application filed by the appellant for sending agreement dated 28.9.1999 and
her signature and thumb impression for comparison at Government Laboratory,
Madhuban/Hyderabad/ Calcutta on the sole ground that a similar prayer had been
rejected earlier. That order was confirmed by the High Court by dismissing the
civil revision preferred by the respondent. Hence, this appeal by special
leave.
The only question to
be examined in the present appeal is whether earlier rejection of the
appellant's prayer for comparison of her signature and thumb impression through
Forensic Science Laboratory operated as res judicata and the trial Court and
the High Court were justified in declining similar prayer made by her.
Learned counsel for
the appellant invited our attention to order dated 16.3.2004 passed by the
trial Court to show that the prayer for getting the signatures and thumb
...2/- -2- impressions of the appellant compared through Forensic Science
Laboratory was rejected at that stage. This clearly means that the appellant
could make similar prayer at a later stage. This is precisely what was done on
her behalf. However, without correctly appreciating the import of order dated
16.3.2004, the trial Court rejected her prayer on a wholly untenable ground
that the said order operated as res judicata. In our considered view, the order
dated 7.4.2004 passed by the trial Court suffered from jurisdictional error and
the High Court failed to exercise jurisdiction vested in it under Section 115
of the Code of Civil Procedure.
Accordingly, the
appeal is allowed, the impugned orders are set aside and the prayer made by the
appellant for sending agreement dated 28.9.1999 and her signature and thumb
impression for comparison to the Government Laboratory at Madhuban is allowed.
Let hearing of the
suit be expedited.
.............................................J.
[B.N. AGRAWAL]
.............................................J.
[G.S. SINGHVI]
New
Delhi, July 21, 2008.
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