Gujarat High Court
Minubhai Darbasha @ Dali Patel vs Freniben D/O Jahagirji Kavasji @ W/O ... on 9 August, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
C/SCA/11976/2023 ORDER DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11976 of 2023
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MINUBHAI DARBASHA @ DALI PATEL
Versus
FRENIBEN D/O JAHAGIRJI KAVASJI @ W/O KHUSHRUBHAI FARAMROZ
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Appearance:
MR Y.N. OZA, LD. SR. COUNSEL WITH MR AMIT V. THAKKAR FOR
SAGAR J SHAH(9447) for the Petitioner(s) No. 1,2,3,4,5,6
for the Respondent(s) No. 1
DHANESH R PATEL(8226) for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 09/08/2023
ORAL ORDER
1. Challenge in this petition filed under Article 227 of the Constitution of India, is to the order dated 08.07.2023, passed below Exh.287, in Special Civil Suit No.316 of 2002 by which the learned 9th Additional Senior Civil Judge, Surat, by dismissing the application, refused to refer the disputed laminated document, for its further verification by hand writing expert.
2. Facts and circumstances giving rise to file present application are as follows:
2.1 The father of the petitioner's purchased disputed land from original defendant No.1-Homi Jhangirji, who had executed an unregistered agreement to sell dated 08.03.1986. The sale consideration was Rs.16,000/-. The purchaser Darab Sha @ Dali Patel-the father of the plaintiffs, paid earnest money of Rs.
4000/- in cash and thereafter, paid the remaining amount of Page 1 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined sale consideration. The purchaser Darab Sha expired after the transaction. The petitioners being a legal heirs and representative of the deceased asked the defendant No.1 Homi Jhangirji to execute the registered sale deed with respect to disputed property and the same was denied, as a result, the Special Civil Suit No.316 of 2002 filed by the petitioners- plaintiffs against the defendant Homi Jhangirji and others, for specific performance of the agreement to sale, and cancelation of subsequent registered sale deed dated 30.03.2002 allegedly executed in favour of defendants no.4 and 5.
2.2 The suit contested by the original defendant No.1 Homi Jhangirji. He denied the averments and allegations made in the plaint. In his written statement, he pleaded that the suit property was sold off in the year 1997 and power of attorney was being executed in favour of the defendant No.6 for necessary approval etc. and, thereafter, registered sale deed dated 30.03.2002 came to be executed in favour of defendant No.3,4 and 5. He has further pleaded that the entire agreement to sell has been fabricated by the defendants and it is a forged one and is being created for claiming the false right in the property and has also denied the execution of the agreement to sell as well as his signature thereof.
2.3 The Civil Court framed the issue at Exh.85.
2.4 During the pendency of the suit proceedings, i.e. between 2002 to 2016, both the parties have obtained opinion of the hand writing expert from private examiner. The opinion obtained by the petitioners is in their favour, whereas, opinion Page 2 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined obtained by the respondent-defendant is supporting their pleadings.
2.5 On 22.08.2017, the co-defendant lodged an FIR, against the petitioners-plaintiffs alleging the act of forgery and cheating with respect to alleged agreement to sell, under Sections 406, 420, 465, 467,468,471, 120B and 114 of the Indian Penal Code and the same was registered with Umra police station at Surat.
2.6 The petitioners filed a quashing petitioner under section 482 of the Code of Criminal Procedure before this Court. In the proceedings, as an interim relief, with the continuation of investigation, the I.O. was directed not to file chargesheet in the case. During the course of investigation, the original agreement to sell recovered from the plaintiffs and at relevant time, it was given in a laminated form. The I.O. of the case forwarded all the documents for scientific examination at Forensic Science Laboratory, at Gandhinagar. After examination of the laminated agreement to sell, the examiner of the documents vide its opinion dated 22.03.2018, opined that, the disputed signature of the agreement to sell (Mark- D1/1 and D1/2) are not written by the writers of blue encircled standard writings.
2.7 The petitioners aggrieved with the said report, requested this High Court in a proceeding of quashing of the FIR, to reconsider the examination of the document after collecting the documents having original hand writing of the author namely Homiji Jahangirji. Vide order dated 06.04.2018, the Page 3 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined Coordinate Bench of this Court in a group of quashing petitions, directed the I.O. to collect additional documents for its further examination by the handwriting expert and also directed the F.S.L., Gandhinagar to examine it and forward its report at the earliest. Pursuant to the said order, the I.O. collected the additional documents and again send them to the Government Laboratory and accordingly, the examiner, after considering the documents as well as laminated agreement to sell, came to a conclusion that, the disputed signatures bears on the agreement to sell are not written by any of the writers.
2.8 The plaintiff Firoz Darab Sha, filed his affidavit in the form of chief examination at Exh.125.
2.9 During the pendency of the suit, the Coordinate Bench of this Court, vide its common judgment and order dated 15.06.2023, by allowing all the quashing petitions, quashed the impugned FIR dated 22.07.2017 for the offences registered under Sections 406, 420, 465 and 467 etc. 2.10 The petitioner-plaintiff, aggrieved with the negative report of the FSL, Gandhinagar, filed Criminal Misc. Application (Direction) No.1 of 2018 in Special Criminal Application No.6429 of 2017, seeking direction against the investigating officer to remove the lamination of the original agreement to sell dated 08.03.1986 and send it to FSL, Gandhinagar for further examination by handwriting expert as the lamination would not given correct and accurate report.
Page 4 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined 2.11 This Court while disposing the quashing petitions, has also disposed of the aforesaid application being Criminal Application (For Direction) No.1 of 2018, observing that, the Court does not find any cause to direct the investigating officer and what method to be adopted for seeking FSL Report on the document and whether such opinion can be expressed on the laminated copy or not is for the Appellate Authority to decide and finally, Court came to a conclusion that, no reason exists to entertain the criminal application.
2.12 After the judgment and order passed in the quashing petitions, the petitioners moved an application dated 28.06.2023 at Exh.287 before the Civil Court, inter alia, praying that, the defendants have disputed the alleged agreement to sell dated 08.03.1986 and considering the lamination put on the document, the accurate and correct opinion of the handwriting expert would be relevant for adjudicating the dispute in question and therefore, the FSL Auhtoirty, Gandhinagar directed to deleminate the document and re-examine the original agreement to sell and opine on the disputed signature of the author.
2.13 The Court below after hearing the parties, vide order dated 08.07.2023, rejected the application, observing that, the application for re-examination is nothing but filed with a view to protract the trial. The petitioners, did not have raise the issue before the High Court when the order to this effect was passed. The High Court in a criminal misc. Application for direction, has rejected the same prayer and therefore, at this Page 5 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined stage, the prayer for rec-examination of the laminated document cannot be granted.
3. Being aggrieved with the order, the petitioners-original plaintiff have come up before this Court, invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
4. This Court has heard learned Senior Counsel Mr. Y.N.Oza assisted by learned counsel Mr.Amit Thakker and learned counsel Mr.Dhanesh R.Patel for the respective parties.
5. Learned Senior Counsel Mr. Yatin Oza has raised the following contentions:
5.1 That the Court below overlooked the facts that the suit is filed for specific performance of the alleged agreement to sell dated 08.03.1986, and defendant- respondent disputed the execution of the alleged agreement to sell and its authenticity including the signatures of the seller. After considering the pleadings, the Court has framed the issues wherein burden is on the plaintiff to prove the execution of the agreement to sell.
That, in the aforesaid controversy, it is necessary and essential to prove the due execution of agreement by Homi Jahangirji. That, whenever a party disputes on an agreement to sell, the remedy is available to send the document to the expert for its verification and examination of the handwriting and other contents. That, the lamination destroy its authenticity due to its nature i.e. glossy and waterproof, the correct and accurate Page 6 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined opinion would not be possible or opined, unless original document would be examined after deleminating it. That, it is the right of the plaintiffs, to ask this Court for re-examination of the documents so as to enable them to discharge their burden on the issue framed by the Court.
5.2 In the aforesaid context, Mr. Oza, learned senior counsel submitted that, the Court below committed an error while rejecting the application, which has caused gross injustice to the petitioners. The Court below mainly relied on the observations made by this Court in Criminal Misc. Application (For Direction). That the Court below ought not to have considered the observations passed by this Court as while dealing with the criminal proceedings arising out of said FIR, this Court thought it fit not to entertain the plea of re- examination of the laminated document by the handwriting expert. That, the judgment of criminal proceeding, interpartes, is inadmissible in evidence in Civil Court even on same facts because the findings of facts recorded by Criminal Court is not reelvant in a civil suit except to prove whether accused in a case convicted or acquitted. That the Civil Court has to come to its own conclusion on the issue raised by the parties and on the basis of evidence led by the parties before it. In support of said contention, reliance has been placed on the judgment of the Apex Court delivered in case of Vishnudatt Sharma vs. Daya Sapra (2009) 13 SCC 79 to submit that, the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of evidence brought in criminal proceedings. That, the Court Page 7 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined below while relying on the order passed by this Court, has committed a manifest error of law which is apparent on the face of record.
5.3 That, the Court below, while dealing with the issue, has not considered the relevant citations on the issue. That, the Division Bench of the Kerala High Court in case of R.G. Harilal vs. Joint Registrar of Co-operative Societies (2018) SCC Online KER 5498, on the identical issue held that, it is hard to notice the thickness, seal, embossment or any other identification marks used to check the authenticity of identity card, if the same is laminated to make it glossy and waterproof. The lamination destroys the legality of an identity card for all intents and purposes. The entire order is silent on this aspect and therefore, instead of deciding the application on merits, the Court below, relying on the observations passed in the criminal matters, rejected the application which requires interference as order impugned is passed without application of mind.
6. In the aforesaid contention, learned Senior Counsel Mr.Oza submitted that the Court below committed serious error in passing the impugned order in so far as it failed to take into consideration the relevant provisions of the Evidence Act and there is a failure on the part of the Court to exercise jurisdiction vested on it which has caused the grave injustice to the plaintiffs which requires interference of this Court and same may be set aside and quashed.
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7. Countering to the submissions, Mr.Dhanesh Patel, learned counsel appearing for the respondents-original defendants has submitted that, while rejecting the application, no error much less an error of law, can be said to have been committed by the trial Court. The trial Court has rightly relied upon the observations made by this Court while, quashing the criminal proceedings as the application for direction has nothing to do with the quashing of the FIR. He has further submitted that, the plaintiffs have filed the application with a view to delay the trial proceedings and on earlier occasion also, on one or other pretext, they moved the application so as to protract the trial. He further submitted that there is no any reference in the opinion of the hand writing expert that due to lamination, he could not opine on the matter.
8. In the aforesaid contention, learned counsel Mr.Dhanesh Patel, has submitted that no grounds or reason is made out for interference by this Court under its supervisory jurisdiction.
9. Having heard the learned counsel for the respective parties and on perusal of the impugned order, this Court is of the considered view that the Court below has not committed any jurisdictional error or error of law while, rejecting the application Ex.287. The reasons are as follows:
(1) The Coordinate Bench of this Court, while disposing the criminal application for direction, independently without considering the allegation of forgery, observed that, whether opinion on the laminated document can be expressed or not is Page 9 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined for the forensic science laboratory to decide. This observation cannot be said to be related to the FIR. This Court is conscious about the settled legal position on the aspect of relevancy and effect of judgement passed by the Court. It is settled by catena of decisions of the Apex Court that, any finding in a criminal proceeding would not binding in the civil proceedings and Civil Court has to decide the issue on its own merits and evidence led by the parties before it. In the facts of the present case, total 4 opinions of the handwriting experts are on record.
Initially, the plaintiffs have sought expert report from private examiner and thereafter, defendants have sought report from another private examiner and both the reports are contradictory. The third report derived from the investigation of the criminal case and it is against the present petitioners. The petitioners sought further direction of the quashing Court and again, the Government Laboratory expressed its opinion which is also against the petitioners. The attempt for the 5 th report was not entertained by the quashing Court on the ground that, it is the domain of the expert to express opinion whether laminated document can be examined or not. After unsuccessful in their attempt before the quashing Court, the petitioners moved an application before the Civil Court seeking same relief which already was refused by the High Court. In these background facts, the trial Court has rightly held that, once the High Court independently, rejected the prayer, then, under the guise of civil proceedings, the same prayer cannot be granted. In that view of the matter, instead of seeking summons for examination of examiner of the document, the application for re-examination was being filed. In the facts of Page 10 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined present case, the person who has examined the document i.e. FSL, Gandhinagar is necessary to examine as a witness on two aspects: (i) despite of laminated document, can the examiner of the document express its accurate and correct opinion on the subject of handwriting and (ii) if the answer is no, then, the petitioners have all the rights to ask the Civil Court to send it to the FSL, Gandhinagar for re-examination of the document after removal of the lamination on it. In such circumstances, the decision rendered in Criminal Misc. Application No.1 of 2018 can be looked into and it is a relevant fact in issue to decide the prayer of re-examination of the documents. If Civil Court relying on the observations of the quashing Court, going to decide the entire suit, then, the judgement rendered in quashing petitions, would not binding to the Civil Court. Thus, the trial Court has rightly relied on the decision rendered in the Criminal Misc. Application No.1 of 2018 to decide the application Exh.287. It needs to be noted that, the suit is at the stage of evidence of plaintiffs. The refusal on the part of Court to send the laminated documents would not cause any prejudice to the petitioners as the authenticity and reliability of the opinion based on the laminated documents can very well be examined by summoning the document examiner of FSL, Gandhinagar.
(2) It is the contention of the petitioners that, once the FIR and consequential proceedings quashed, the investigation undertaken including the report of FSL, looses its sanctity and cannot be considered by the Court to decide the issue. In the facts of the present case, two concurrent reports opined by the Page 11 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined handwriting expert of the Government Laboratory. Both the reports derived from the criminal investigation. In the criminal proceeding, the I.O. has collected the additional documents independently showing the natural handwriting of the Homi Jahangirji and accordingly, sent it to the FSL. There is no legal bar to rely on the FSL Report derived from the criminal investigation, by the Civil Court. The termination of criminal proceedings would mean quashing of the FIR and judicial proceedings. It does not mean that, the independent report submitted by the FSL Authority could never be received in the evidence before the Civil Court and it looses its existence so far record is concerned. Otherwise, what happen there is no end to the litigation and on each and every quashing of the FIR, there would be another round of litigation so far as records are concerned. Thus, the contention as raised is misconceived.
(3) much emphasis is given on the issue that the Court below failed to consider the judgment of Kerala High Court (R.G. Harilal) (supra). Before Division Bench of Keral High Court, the petition is filed by Police Cooperative Society, raising grievance about the issuance of laminated identity card issued by the society. It is in this context, the Division Bench of High Court held that, an identity card cannot be laminated as Rule 16A of the Kerala Cooperative Societies does not permit the issuance of laminated I-card and it is in this context, it was held that, the lamination destroys the legality of an identity card for all intents and purposes. In the facts of present case, the issue is whether laminated document examined by the FSL, Gandhinagar would show correct and accurate examination or Page 12 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined not. Thus, therefore, the cited case would not be relevant to the facts of present case and therefore, merely Court below has not discussed on the case law would not be a ground to interfere with the impugned order.
(4) The apprehension expressed that, laminated document would not express the correct and accurate result of the examination. The document examiner of the FSL, Gandhinagar despite of the laminated copy, had opined and issued its opinion for twice. Thus, if the document examiner have had any doubt about the accuracy and correctness of the laminated copy, then, he could have mentioned in its reports. Thus, non-mentioning of this aspect in reports would indicative of the fact that, the FSL Laboratory is well equipped and they can opine even in case of laminated document. However, as discussed above, it is still open for the petitioners to summon the document examiner for the necessary clarification about the issue of accuracy and correctness and it is the only way to resolve the issue.
10. Considering the peculiar facts and circumstance of the case, reference can be made to the judgment of the Apex Court delivered in the case of Garment Craft vs. Prakashchand Goel, (2022) 4 SCC 181, the Apex Court after considering its earlier judgment, held that, the High Court is not vested with any unlimited prerogative to correct all kinds of hardships or wrong decisions made within the limits of the jurisdiction of subordinate courts. Exercise of this power and interfering with the orders is restricted to cases of serious Page 13 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023 NEUTRAL CITATION C/SCA/11976/2023 ORDER DATED: 09/08/2023 undefined dereliction of duty and flagrant violation of fundamental principle of law, where if the High Court does not interfere, a grave injustice remained uncorrected.
11. For the reasons aforestated, this Court finds that the impugned order does not suffer from any jurisdictional error. Thus, the interference of this Court is not warranted. Petition fails and is dismissed.
12. Considering the peculiar facts and circumstances of the present case, it is left open for the petitioners to examine the examiner of questioned documents, Directorate of Forensic Science Laboratory, Gandhinagar so as to establish the correctness and validity of the opinion.
13. The Court has not examined the merits of the matter, and whatever observations made hereinabove is confined to decide the issue raised herein. The trial Court decide the suit on its own merits in accordance with law without there being influence of the observations made hereinabove.
14. After pronouncing the order, the learned Senior Counsel prays for extension of interim relief so as to challenge the order before the Apex Court. The interim relief granted earlier vide order dated 20.07.2023 is extended upto 06.09.2023.
(ILESH J. VORA,J) TAUSIF SAIYED Page 14 of 14 Downloaded on : Sun Sep 17 00:47:39 IST 2023