Rajasthan High Court - Jaipur
Immortal Infrastructure Pvt. Ltd vs Lookwell Life Space Pvt. Ltd on 29 July, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 12226/2021
Immortal Infrastructure Pvt. Ltd., Registered Office Shop No. 7,
Building No. B/24, Saraswati Vaishali, Cooperative Society,
Vaishali Nagar, Jogehshwari (West) Mumbai - 400102 Through
Its Chief Operating Officer Shri Shakoor A. J. Saiyad S/o
Jamaludeen Saiyad, Aged About 51 Years, R/o Ward No. 40,
Purana, Naya 6 Near Islamiya School, Sikar, District Sikar,
(Rajasthan) Presently R/o 301, Space Star, Tidke, Colony Miico
Circle, Nasik, Maharashtra.
----Petitioner/Plaintiff
Versus
1. Lookwell Life Space Pvt. Ltd., Youth Qureshi Chs Flat No.
105, 131, Cortor Road, Bandara (West) Mumbai 50
Through Its Director Tajudeen Mujahid.
2. Shri Tajudeen Mujahid S/o Shri Makdum Ali Mujahid, Flat
No. 105, 131, Cortor Road, Bandra (West) Mumbai-50
3. Raheesa Bano W/o Sikandar Ali, R/o Village Kirdoli, Tehsil
Dhod, District Sikar, (Rajasthan)
4. Rajia Bano W/o Nisar Khan, R/o Village Kirdoli, Tehsil
Dhod, District Sikar, (Rajasthan)
5. Smt. Ruksana Bano W/o Zakir Hussain, R/o Village
Beswa, Tehsil Fatehpur, District Sikar, (Rajasthan)
6. Liyakat Ali S/o Alim Khan, R/o Village Beswa, Tehsil
Fatehpur, District Sikar, (Rajasthan)
7. Zakir Hussain S/o Jivan Khan, R/o Village Beswa, Tehsil
Fatehpur, District Sikar, (Rajasthan)
8. Yunus Ali Khan S/o Shri Nijamuddin Khan, R/o Village
Beswa, Tehsil Fatehpur, District Sikar, (Rajasthan)
----Respondents/Defendants
For Petitioner(s) : Mr. Suresh Kumar Sahni with Mr. R.M. Sharma For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 29/07/2022 This writ petition under Article 227 of the Constitution of India is filed by the petitioner/plaintiff assailing the legality and validity of the order dated 31.08.2021 passed by the learned (Downloaded on 29/07/2022 at 10:08:33 PM) (2 of 3) [CW-12226/2021] Additional District Judge No.1, Sikar in Suit No.50/2011 (CIS No.248/2014) whereby, an application filed by it under Section 45 of the Indian Evidence Act, 1872 (for brevity "the Act of 1872"), has been dismissed.
The relevant facts in brief are that the petitioner filed a suit for cancellation of sale deed and permanent injunction against the respondents/defendants. During its pendency, it moved an application under Section 45 of the Act of 1872 requesting to subject the joint venture agreement dated 09.06.2009 and the declaration/confirmation deed dated 17.12.2010 for examination by handwriting expert, Central Forensic Science Laboratory, New Delhi. The application has been dismissed by the learned trial Court vide its order dated 31.08.2021, the subject-matter of challenge.
Learned counsel for the petitioner, assailing the order impugned, submitted that the learned trial Court erred in dismissing its application on the premise that on an earlier occasion, an application filed by the plaintiff under Order 6 Rule 17 CPC seeking leave of Court to introduce facts qua these two documents, was dismissed. He further submitted that in view of dispute being raised by the plaintiff as to genuineness of these two documents, the learned trial Court erred in dismissing its application relying upon the provisions of Section 73 of the Act of 1872 as a Judge is never an expert to record a finding that a document is forged/genuine by comparing signature(s) on it and in view of plaintiff's specific objection as to genuineness of subject documents, it was incumbent upon the learned trial Court to have permitted their examination by the handwriting expert. He, therefore, prayed that the writ petition be allowed, the order (Downloaded on 29/07/2022 at 10:08:33 PM) (3 of 3) [CW-12226/2021] dated 31.08.2021 be quashed and set aside and the application filed by the plaintiff under Section 45 of the Act of 1872 be allowed.
Heard. Considered.
While dismissing the application, the learned trial Court has observed that the application was not bonafide inasmuch as the suit was filed in the month of April, 2011, written statement, whereof, was filed by the respondents/defendants in the month of May, 2011 stating therein that the plaintiff has executed a joint venture agreement dated 09.06.2009 and a declaration/confirmation deed dated 17.12.2010; but, the application was filed ten years thereafter. If the petitioner disputes the genuineness of the subject documents, it is for the defendants to establish the plea taken by them in their written statement as to execution of these documents by the petitioner by leading cogent evidence. In the considered opinion of this Court, the learned trial Court did not err in rejecting the application filed by the plaintiff under Section 45 of the Act of 1872.
The order dated 31.08.2021 has been passed by the learned trial Court in exercise of judicious discretion based on material on record which does not suffer from any patent jurisdictional error or perversity warranting interference of this Court under its limited supervisory jurisdiction vide Aritcle 227 of the Constitution of India.
Resultantly, this writ petition is dismissed being devoid of merit.
(MAHENDAR KUMAR GOYAL),J Manish/16 (Downloaded on 29/07/2022 at 10:08:33 PM) Powered by TCPDF (www.tcpdf.org)