Himachal Pradesh High Court
Ashwani Sood vs Mohini Devi Sood And Another on 12 August, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMPMO No. 164 of 2015 .
Reserved on: 11.8.2015 Decided on: 12.8.2015 ______________________________________________________ Ashwani Sood ...Petitioner.
Versus Mohini Devi Sood and another ...Respondents.
of __________________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt
Whether approved for reporting?1 Yes
For the Petitioner : Mr. Ajay Kumar, Senior Advocate with Mr.
Dheeraj K. Vashishta, Advocate.
For the Respondents : Mr. Ashok Sood, Advocate.
____________________________________________________________ Justice Rajiv Sharma, Judge.
This petition is instituted against the order dated 6.4.2015 rendered by the Civil Judge (Senior Division) in Civil Suit No. 103-1 of 2011/10.
2. "Key facts" necessary for the adjudication of this petition are that petitioner has instituted a suit against the respondents for specific performance of the agreement dated 9.10.1996. It was registered as Civil Suit No. 103-1 of 2011/10. According to the terms and conditions of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 2 agreement Ext. PW-12/A, respondents had agreed to transfer the property in favour of the petitioner. Written statement .
was filed by respondent Nos.1 and 2. According the averments contained in the written statement, agreement dated 9.10.1996 was without consideration and was the result of fraud, misrepresentation and the same was not of binding upon the respondents. The plaintiff has manipulated the signatures taking advantage of fiduciary relationship.
rt Agreement dated 9.10.1996 did not give any right, title or interest to the petitioner in respect of the land in question or the hotel building or the hotel business.
3. Issues were framed by the trial Court on 26.5.2011. Petitioner has closed his evidence on 15.6.2013.
Thereafter, respondent moved an application under Section 151 of the Code of Civil Procedure read with Section 45 of the Indian Evidence Act to allow the handwriting expert Shri Devendra Prashad, Forensic Document Expert to take the photographs of the disputed agreement to sell dated 9.10.1996 for its expert opinion and producing the same in the case. According to the averments contained in the application, signatures of respondent No.1 were obtained by the petitioner on the blank paper in business dealings and ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 3 the same have been misused. The application has been contested by the petitioner. According to the averments .
contained in the reply, the agreement dated 9.10.1996 stood admitted by respondent in her cross-examination. Learned Civil Judge (Senior Division) allowed the application vide order dated 6.4.2015. Hence, this petition.
of
4. Mr. Ajay Kumar, learned Senior Advocate has vehemently argued that respondent No.1 has admitted the rt execution of agreement Ext. PW-12/A dated 9.10.1996. Thus, there was no requirement of sending the same to the expert.
5. Mr. Ashok Sood, Advocate has supported Order dated 6.4.2015.
6. I have heard the learned counsel for the parties and have gone through the pleadings carefully.
7. Suit for specific performance is based upon execution of the agreement dated 9.10.1996 executed by respondent No. 1. Petitioner has already led his evidence.
Statement of respondent No.1 was also recorded as DW-1.
The same has been placed on record.
8. Mr. Ajay Kumar, learned Senior Counsel has vehemently argued that respondent No.1 in her cross-
examination has admitted that she came to know about the ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 4 agreement Ext. PW-12/A , 20-25 years back. The agreement was read over to her by her husband. Her husband was .
educated. However, fact of the matter is that respondent No. 1 in her cross-examination has denied the execution of agreement in the month of October, 1996 vide Ext. PW-12/A. It has also come in her statement that petitioner used to of obtained her signatures on blank papers. The application has been preferred by the respondents at the stage when their rt evidence was being recorded. The trial Court has come to a right conclusion that no prejudice would be caused to the petitioner if the photographs of the agreement are exhibited.
The execution of the agreement Ext. PW-12/A dated 9.10.1996 is under dispute. There is neither any illegality nor any perversity in Order dated 6.4.2015 rendered by the learned Civil Judge (Senior Division), Shimla.
9. Learned Single Judge of Andhra Pradesh High Court in Guru Govindu v. Devarapu Venkataramana reported in AIR 2006 Andhra Pradesh 371, has held that the application under Section 45 of the Evidence Act need not be filed soon after written statement is presented. Party can file application even at the stage of arguments. Learned Single Judge has held as under:
::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 5[4] The trial Court dismissed the application of the petitioner on two grounds. The first is that it was filed at a belated stage and the second is that in view of existence of power in .
the trial Court under Section 73 of the Act, it may not be necessary to accede to the request to send the documents to an expert's opinion. The first reason assigned by the trial Court does not appear to be sound. It is not as if the application under Section 45 of the Act must be filed soon after the written statement is presented. There may be instances where the necessity to file such application would of arise after the oral evidence of certain witnesses is over. In case, the party concerned is able to elicit necessary information or admissions during the course of evidence, the necessity to file an application under Section 45 of the Act rt may not arise. Nothing prevents the party to a suit to file an application under Section 45 of the Act, even at the stage of arguments.
10. A Division Bench of Andhra Pradesh High Court in Janachaitanya Housing Ltd. v. M/s. Divya Financiers reported in AIR 2008 Andhra Pradesh 163 has held that no time limit could be fixed for filing application under Section 45 of the Evidence Act for sending disputed signatures, writings or handwritings to handwriting expert for comparison and opinion. The Division Bench has held as under:
14. In view of the same, we are of the opinion that the court cannot lay down any hard-and-fast rules controlling the discretion of the court to send the disputed documents/writings for the opinion of the expert or to examine him in support of such opinion. On sending the document to handwriting expert and on receiving report, ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 6 parties, on showing sufficient cause, may call upon the court to permit them to examine hand-writing expert or any witness in support or rebut the said opinion.
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16. For the reasons aforementioned, we answer the reference thus: "No time could be fixed for filing applications under Section 45 of the Indian Evidence Act for sending the disputed signature or writings to the handwriting expert for comparison and opinion and same shall be left open to the discretion of the court; for exercising such discretion when exigencies so demand, depending upon the facts and of circumstances of the each case."
11. Learned Single Judge of Madras High Court in Karuppa Gounder v. Kuppusamy reported in AIR 2009 rt Madras 122, has held that merely because there was delay in seeking opinion of expert, application should not be rejected.
Learned Single Judge has held as under:
[5] A plain poring over and perusal of the relevant facts would exemplify and evince that the revision petitioner/ defendant even at the time of replying to the pre suit notice as well as in the written statement filed in the suit took up the consistent stand that the purported signature in the agreement to sell is not that of his and in such a case, the plaintiff himself could have taken steps to obtain handwriting expert's opinion in that regard, but he did not do so. Hence the defendant had come forward with such an I.A. for taking the assistance of handwriting expert, but the lower Court dismissed it.
[6] I am of the considered opinion that obtaining handwriting expert's opinion in the facts and circumstances of this case would certainly help the Court to arrive at a consistent and firm conclusion. A plain reading of the order of the lower Court would convey the idea that the lower Court dismissed the I.A. on the sole ground that there was delay in applying to the Court by the defendant for getting the assistance of the handwriting expert. In such a case, the mere delay should not be taken as material, for the ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 7 reason that as per the defendant's version, he awaited the plaintiff to take steps to obtain handwriting expert's opinion, but in this case, he did not do so. Hence, when the matter was posted for .
defence, he chose to invoke the power of the Court under Order 26 Rule 10(a) of CPC and to get assistance of handwriting expert to find out whether the purported signature of the defendant is that of his admitted signature. Even though Section 73 of the Indian Evidence Act might contemplate that the Court itself could compare the disputed signature with that of the admitted signature, nonetheless, the Court should be slow in resorting to such a of procedure, to the effect judicial views are found set out in catena of decisions of the Hon'ble Apex Court reported in 1992 (3) SCC 701 (State of Maharashtra thro' CBI v. Sukhdev Singh @ Sukha and Ors.).
12. Learned Single Judge of Andhra Pradesh High rt Court in Medikonda Rama Swarajyalakshmi vs. Posina Satyanarayana, 1991 (1) And LD 210 has held that the rights of petitioner would be affected if document is not sent to handwriting expert and the evidence which she seeks to lead would be denied to her. Learned Single Judge has held as under:
"[5] The learned Counsel for the petitioner contended that it is only after the plaintiff s witnesses asserted that the signature on Ex.A1 is that of the first defendant, the defendants now sought for sending the same to handwriting expert since according to the first defendant the signature found on Ex.A1 is not her signature and it cannot be said that there is any belatedness on the part of the petitioner-first defendant. From going through the impugned order, I find that the petition filed by the revision petitioner has been dismissed on the ground that the petitioner/ 1st defendant has filed the present petition at a belated stage and the same is intended only to protract the matter and enjoy the benefits from the land for some more time. But, in my opinion, it cannot be ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 8 dismissed on the ground of belatedness. Even though the opinion of the handwriting expert cannot be conclusive, it is important piece of evidence to hold whether the suit document is forged document .
or not. Though, no doubt, the Courts have also got power under Section 73 of the Evidence Act to compare the disputed signature in order to give a finding on the issue involved, but at the same time, the Courts normally take the assistance of the handwriting expert. In these circumstances, I think it appropriate to send the disputed document for the opinion of the handwriting expert. However, the learned Counsel for the petitioner strenuously of contended that the impugned order cannot be said to be a case decided for exercising jurisdiction of this Court under Section 115, CPC. He relied upon the judgments of the Supreme Court in S.S. Khanna v. F.J. Dillon, AIR 1964 SC 407, Baldevdas v. Filmistan rt Distributors, , and Gurdev Singh and others v. Mehnga Ram and another, 1997 (5) ALD (SCSN) 5, in support of his contention. From a reading of judgment in S.S. Khanna 's case (supra), I find that the Supreme Court ruled that the case decided need not be the entire suit decided and it may be at interlocutory stage. But, what is to be seen is whether the rights of the person are affected by the impugned order. The principle laid down by the Supreme Court cannot be disputed. The explanation added to Section 115, CPC specifically incorporated the principle laid down by the Supreme Court in the above judgment. But, what is to be seen is whether the rights of the petitioner would be affected by the impugned order or not. In my opinion, the rights of the petitioner would be affected if the document in question is not sent to the handwriting expert since to that extent the evidence which she seeks to lead would be denied to him. In fact, in Gurdev Singh's case (supra), the Honorable Supreme Court found fault with the order of the High Court in setting aside the order of the appellate Court directing to send the document for the opinion of the handwriting expert and the Supreme Court further observed that the order of the appellate Court should not have been set aside by the High Court."
13. Learned Single Judge of Andhra Pradesh in Ghulam Ghouse and other vs. Madarse Jeelania Shama-
::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 9UI-Uloom Educational Society and other, 2007 (4) And LD 434 has held that there is no bar to send documents to .
expert for comparison and opinion which would give quietus to plea taken by defendants. The Court has discretion to exercise its mind judiciously whether to send the disputed documents for opinion of expert or not. Learned Single of Judge has held as under:
6. Whenever the signature on the document is disputed, the party rt who is disputing the signature may make an application under Section 45 of the Evidence Act to send the document to the expert for comparison. Normally, the Courts are inclined to allow the petition to send the documents so that the opinion of the expert would help the Court to come to a right conclusion regarding the genuineness of the document. The earlier application was dismissed by the lower Court on the ground that the documents filed by petitioners, which contain the admitted signatures, do not belong to the year 2006. The agreement of sale, covered by Ex.A-1, was executed by the defendants on 5-2-1993. The receipts, covered by Exs.A-2 to A-5, were also executed on 5-3-1993, 17-12-1993, 6-5-
1993, 23-7-1993 and 19-8-1993. The disputed document is said to be a document regarding (sic. relating) to the extension of time by taking Rs. 25,000/- on 8-11 -2001, in addition to the amount already received towards sale consideration. The agreement of sale was executed for the sale of a share constructed in the area of 29.45 square yards at Medak town.
12. In the present case, the petitioners did not ask the opinion of the expert for different purposes. Both the applications were filed only for comparison of the signatures on the ground that those documents are fabricated documents. Therefore, the decisions rendered by this Court in the above judgments are clearly conveying that the Court can exercise its discretion depending upon the facts and circumstances and the defendants cannot ask ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP 10 for opinion for different parts of a disputed document for (sic. at) different times. In this case, the crucial issue regarding the limitation is involved through the crucial documents covered by .
Exs.A-6, A-8 and A-9.
14. On the basis of the principle laid down by the Supreme Court, there is no bar to send the document to the expert for comparison. The Court exercises its mind judiciously to give a right conclusion whether it is essential to send the documents for opinion of the experts. As already observed, the crucial issue regarding the maintainability of the suit is involved in the preset of suit on the basis of Exs.A-6, A-8 and A-9. When such a crucial issue is involved, the lower Court ought to have exercised its discretion judiciously and come to a conclusion that the opinion of the expert would help the Court to give a quietus to the plea taken by the rt defendants.
15. After going through the entire material, I am of the view that the lower Court ought to have allowed the application, instead of dismissing it by observing that it is belated one. Immediately after examination of P.Ws.1 to 3, the defendants filed the application, therefore, it cannot be treated as belated application and the disposal of the earlier application will not operate as res judicata, as the present application was filed to compare the disputed signatures with Exs.A-1 to A-5. Therefore. I am inclined to set aside the impugned order.
14. Accordingly there is no merit in the petition and the same is dismissed so also the pending applications, if any. No costs.
(Justice Rajiv Sharma), Judge.
12.8.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:44:52 :::HCHP