IN THE SUPREME COURT OF INDIA

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)

O R D E R

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/-

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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.